FEDERAL CIRCUIT COURT OF AUSTRALIA
PACE & FORSYTH	[2015] FCCA 1400	

Catchwords: 
FAMILY LAW – Children – parenting orders – best interests of the children – parental responsibility – sole parental responsibility – where father has not seen the children for eight years – three children aged 16, 14 and 12 years – whether contact should resume – wishes of the children – violence issues – where family violence order in force – where father was sentenced to imprisonment for aggravated burglary – Watch List – Family Law Watch List – whether children’s names should remain on Family Law Watch List.

PRACTICE AND PROCEDURE – Whether Order should be made prohibiting father from making any further application for parenting orders for six years – where eldest daughter will attain the age of 18 years in less than two years’ time – principle in Rice & Asplund to apply.	

Legislation:
Family Law Act 1975 (Cth), ss.60CA, 60CC, 60CD, 61DA, 62G, 65DAA, 65H	

Cases cited:
Carriel & Lendrum [2015] FamCAFC 43
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725	

Applicant:	MR PACE	

Respondent:	MS FORSYTH	

File Number:	MLC 4635 of 2012	

Judgment of:	Judge Scarlett	

Hearing dates:	18 – 19 May 2015	

Date of Last Submission:	19 May 2015	

Delivered at:	Melbourne	

Delivered on:	19 May 2015	

REPRESENTATION
Applicant:	In Person	

Counsel for the Respondent:	Ms Jenkins	

Solicitors for the Respondent:	Perry Weston Lawyers	

ORDERS
(1)	All earlier parenting Orders are discharged. 
(2)	The Respondent Mother is to have sole parental responsibility for the children Y born (omitted) 1999, X born (omitted) 2000 and Z born (omitted) 2002 for all decisions as to the long-term and day to day issues concerning the care, welfare and development of the said children including health, education, sporting activities and the application for and issue of an Australian passport for each of the children. 
(3)	The said children Y, X and Z are to reside with the Respondent mother. 
(4)	The Applicant father is permitted to forward cards and letters to the children care of the mother's solicitors or at such other postal address as the mother may advise. 
(5)	With the exception of the immediately preceding Order there are no other parenting orders in favour of the father.
(6)	The names of the children Y a female born (omitted) 1999, X a female born (omitted) 2000 and Z a female born (omitted) 2002 are to be removed from the Family Law Watch List maintained by the Australian Federal Police FORTHWITH. 
(7)	All other applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pace & Forsyth is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Melbourne	
MLC 4635 of 2012
MR PACE	
Applicant

And

MS FORSYTH	
Respondent

REASONS FOR JUDGMENT
1.	The application before the Court is an application by the father of three children, Y, X and Z, for parenting orders providing that the children reside with their mother and spend time and communication with him: 
a)	on a supervised basis for a minimum of four hours per fortnight until the Court deems appropriate, 
b)	on an unsupervised basis for a minimum period of six to eight hours per fortnight until the children feel comfortable with time to increase upon their request, 
c)	by telephone each Tuesday and Thursday between 4.30 pm and 6.30 pm with the father to contact the children via mobile phone provided by the father, 
d)	on each of the children’s birthdays, Easter and Christmas either:
i)	supervised for a minimum period of two to four hours or
ii)	unsupervised for a minimum period of two to four hours or
iii)	by telephone between 4.30 pm to 6.30 pm.
e)	Should the children request contact with the father at any other time the mother facilitates the children’s requests.
2.	There are other ancillary orders, but those orders are the main ones and represent the thrust of the father’s application.  The mother opposes those orders quite vigorously, seeking orders discharging all previous parenting orders, giving to her sole parental responsibility for the children, seeking an order that the father spend no time with the children except at the specific requests of the children, prohibiting the father from filing a fresh application for a period of six years, providing that the father should be free to send the children greeting cards or presents via a third party nominated by the mother, empowering the mother to withhold cards or presents from the father if she considers that they are inappropriate and otherwise dismissing all applications.  
3.	The children concerned are either teenagers or about to be.  Y was born on (omitted) 1999, so she is 16 years of age.  X was born on (omitted) 2000.  She is 14 years of age.  Z was born on (omitted) 2002.  She is 12 years of age.  The children have been residing with their mother, who on the evidence, I am satisfied, has been their primary care-giver throughout their lives.  It is conceded that it has been a number of years since the children saw their father, and indeed there has been no contact for some eight years, since 2007.  
4.	In considering what orders are appropriate in this case, I have heard oral evidence from the father, from the mother and from the Family Consultant.  There is a Family Report in place, and that Family Report contains a number of quite strong recommendations.  I am also conscious of the fact that there is an open-ended intervention order in place issued by the Dandenong Magistrates’ Court covering the mother and the children, and it is common ground that the father was sentenced to a term of imprisonment in 2013 by the County Court as a result of offences, the principal of which was an aggravated burglary at the mother’s home.  
5.	The father has also relied on an affidavit of a family member annexed to his affidavit and has tendered a psychologist’s report.  The psychologist was not available for cross-examination, and I advised the parties that, even though the report was not in proper form, I would admit it into evidence, but I cautioned that the ability of the Court to test the evidence of the psychologist by cross-examination would be a seriously limiting factor.  
6.	Essentially, this is a case where there are strong allegations of family violence over a period of time, including during the parties’ relationship together and after the relationship ceased.  The father denies any violence and in particular, denies any violence that has been occasioned in the presence of the children.  However, family violence is, of course, an issue that the courts must regard very seriously.
Applications for Parenting Orders  
7.	There are a number of matters that the Court must consider when dealing with its obligation under section 60CA of the Family Law Act 1975 (Cth) to regard the best interests of the children as the paramount consideration.  Section 60CC of the Act sets out both primary and additional considerations.  The primary considerations are found in subsection (2) of s.60CC, and they involve a balancing act between the benefit to the children of having a relationship with both of their parents on the one hand and the need to protect the children from physical or psychological harm occasioned as a result of being subjected to or exposed to abuse, neglect or family violence.  Family violence and the existence of family violence orders is also referred to in the additional considerations in subsection 60CC(3).  
8.	Another consideration that is important is that contained in paragraph (a) of subsection 60CC(3), being the views of the children and the weight that the Court should give to the children’s views based on their level of maturity and understanding.  That is an important feature in this particular case.  
9.	The Court under section 60CD of the Family Law Act 1975 has ways of ascertaining the views of children.  One of them is by means of a Family Report under the provisions of section 62G of the Act.  
10.	The Court also must consider the question of parental responsibility and consider whether the presumption that it is the children’s best interests under section 61DA, subsection (1), for their parents to have equal shared parental responsibility, and, if so, the Court then considers the matters under section 65DAA as to whether an equal time arrangement would be in the children’s best interests and reasonably practicable.  The father has not sought an equal time arrangement and concedes that it would be impracticable in the circumstances where he has not in fact seen the children or spoken to them for such a lengthy period of time.  
11.	In dealing with the question of parental responsibility, family violence of course is an issue under subsection (2) of section 61DA, and upon such a finding the Court would regard the equal shared parental responsibility presumption as not applying.  The father in his evidence denies any responsibility for family violence.  The mother in her evidence is adamant that it took place and indeed has given evidence that for a considerable amount of time that she did not report this matter, even though on one occasion she had been advised by her doctor to do so, because of fears of repercussions from the father.  
12.	The mother gave her evidence in a forthright manner, and I formed the impression, as I put to the father during the submissions, that she still showed signs of fear and anxiety towards him when she was being cross-examined.  
13.	This is a matter where the Family Report is particularly important, because it is through the Family Report that the children’s views are clearly stated.  In the Family Report it was made plain that the children were brought to the Court by their mother, and the Family Consultant reported that they initially appeared wary and fearful.  The Family Consultant reported that none of the girls wished to spend time with their father on the day of the interviews and seemed relieved to be told that they would not be required to do so against their wishes.  The girls, as I said, are aged 16, 14 and 12. 
Conclusions 
14.	The eldest child, Y, in the interview with the Family Consultant set out her views in what appeared to be a forthright manner, and the Family Consultant reported that, when asked at the end of her interview whether she would like to resume contact with the father, Y unambiguously told the Family Consultant “I don’t want to do it”.  Y does not wish to spend time with her father because of what she remembers of his threats and intimidation in the past.  The Family Consultant also reported that Y was against any obligation that she have telephone contact with the father or he with her.  If she wishes to spend time with her father, Y told the writer, it is probably better later or voluntarily, that is, when she is over 18.  
15.	X, who had just turned 14 at the time of the interviews, was also forthright in her views.  She told the Family Consultant that the thing that made her most angry was Mr Pace, referring to her father, and “court people”.  She too was asked if she would like to resume contact with her father, and she responded with an emphatic “no”.  The reasons why she does not wish to do so are the things that have happened in the past that affect her.  The children spoke about her new life with her mother and step-father, which brought a smile through her tears.  
16.	The youngest child, Z, turned 12 on (omitted).  She was 12 years and approximately one month when she was interviewed.  Like her older sisters, in the interviews she impressed the family report writer as being confident, and she spoke freely to the writer of the Family Report about her family and her views of the family.  She told the writer of the Family Report that something that made her both angry and sad was “Mr Pace”, referring to her father, and she said she did not wish to see her father because of all the things he did and how scary it was.  Asked if she misses her father, Z told the Family Consultant, “Not really.”  Indeed, she said she could only “sort of” remember him.  When it was suggested that she might wish to contact her father when she is grown up, Z told the writer, “I don’t think I will ever want to.”  Those were very emphatic views.  
17.	The Family Consultant was cross-examined about those views by the father, who appeared for himself.  It was put to him that the children may have been coached or coerced by their mother, as they had some four months lead time before the interviews took place.  The Family Consultant did not agree with that, saying they are quite old children, 16, 14 and 12.  They could easily say that without being coached by their mother.  He then went on to refer to a serious event, being the event which eventually resulted in the father’s imprisonment.  
18.	He was asked in cross-examination if the children had been alienated from the father at the doing of the mother.  He said that it is possible, but whether it happened to them in this particular case is another matter.  He went on to express the view that he did not think that the mother had set out to alienate the children.  Events had happened, however, that had given the children dismal memories.  The Family Consultant told the Court the mother had, in fact, spoken of attempts to foster the relationship of the children with their father after the separation, which, in the view of the Family Consultant, did not support the theory that she had been active in alienating the children from their father.  
19.	The Family Consultant was unshaken in cross-examination.  His recommendations were very firm and, indeed, some of the strongest recommendations that I personally have seen in Court over the last year or so.  He recommended that the mother have sole parental responsibility for the long-term care, welfare and development of the children;  that they continue to live in their mother’s primary care;  that they have no contact with their father;  that the Court consider prohibiting the father from filing a fresh application for six years;  that the father be free to send the children greeting cards and/or presents via a third party nominated by the mother;  that the mother be empowered to withhold greeting cards or presents if she considered that they were inappropriate.  
20.	It was certainly the father’s position that the mother is unreliable and untrustworthy.  She has, in his view, given false evidence and made false allegations to the police about domestic violence, which he denies, and which he says have been made with the intention of delaying any opportunity for him to spend time with the children.  The mother denies that she has done so.  The father accuses the mother of having had a problem with drugs at some stage in the past, but there is no evidence of that.  The father is opposed to an order that the children’s names be removed from the Family Law Watch List, because he expressed the fear that the mother and her mother would act to remove the children from the Commonwealth of Australia.  There is no evidence of this.  
21.	The father took issue with the Family Consultant about the statement in the report about the father putting all the blame on the mother for the end of the relationship and accepting none of the blame himself.  The Family Consultant in cross-examination said that he formed that view after having asked the father and having been told that.  There is nothing in the father’s evidence or submissions that gives any support to the mother’s capacity as a mother, and he remains adamant that she has worked strictly against him to deny him from spending time with the children.  The evidence does not support that. 
22.	I have considered the submission made on behalf of the mother which is supported by the Family Consultant that an order should be made prohibiting the father from commencing further proceedings by way of filing an application for parenting orders for the next six years without leave of the Court.  A period of six years would take the child Z, the youngest child, through to and past her 18th birthday.  
23.	It can easily be seen that an order barring the father from commencing any proceedings for six years would, in effect, impose a permanent ban upon him commencing proceedings unless the Court gave its leave to do so, because in six years time, all of the children will have attained the age of 18 years, and under the provisions of section 65H of the Family Law Act, no parenting orders can be made concerning children who have attained the age of 18 years.  That is, in my view, a very draconian position.  The reason given is that the proceedings brought by the father have imposed a considerable strain upon the mother and the children.  
24.	It is not put to the Court that the father has been a vexatious litigant.  There were proceedings in the Family Court in 2005.  These proceedings were commenced on 24 May 2012 in this Court.  They have had a stop-start progress, and were, of course, particularly interrupted by the father’s imprisonment for a period of 12 months.  It was also pointed out by Ms Jenkins of Counsel, who appeared for the mother, that between the earlier proceedings in 2005 and 2007, and these current proceedings, the father had been absent from the State of Victoria and, as described by the mother, had been “on the run” from the police.  
25.	The father did not entirely agree with that description, but there is certainly no doubt that the father had been continuously absent from the State for a period of time of a number of years.  That does not make him a vexatious litigant.  As I suggested to Counsel for the respondent during the course of submissions, whilst there is a fear of the father, who has been determined in pursuing this application since it was filed on 24 May 2012, the fact is that in less than two years time, the eldest child Y will, in fact, attain the age of 18 years.  She is now 16 and has been 16 years old since January.  In less than two years time, no parenting order can be made in respect of Y.  
26.	But the other, and in my view, the more important point is that posed by the rule in Rice & Asplund, a well-known authority that has recently been affirmed by the Full Court of the Family Court (see Carriel & Lendrum).  That is a rule, of course, that precludes reopening parenting proceedings unless there has been a significant change of circumstances.  Parenting proceedings have been argued in full before me over the past two days.  The applicant, the respondent and the Family Consultant have all had their evidence tested by cross-examination.  The Court has considered other evidence, particularly documentary evidence tendered by the father, and the matter has, in fact, gone to a full hearing.  
27.	In all of the circumstances, I am not satisfied that I should make an order precluding either party from making any application for parenting orders for a period of six years or, indeed, for any period of time.  However, I am satisfied that, because the best interests of the children are the paramount consideration, that there is a need to ensure a continuation of their well-being, which means that the father’s application will not be successful.  
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:  

Date:  26 May 2015