Ainsworth and Miles

FEDERAL CIRCUIT COURT OF AUSTRALIA

AINSWORTH & MILES

[2015] FCCA 3322

Catchwords:
FAMILY LAW – Entrenched and bitter parenting dispute about girls aged 10 and 12 – long history of litigation – numerous assertions of family violence alleged against father – father wholly denying violence – children refusing to have any contact whatever with father – whether children brainwashed by mother – mother wholly resistant to children spending time with father – mother’s fear of father in part reflecting hyper vigilant personality – father’s significant lack of insight – reality of children’s’ views of their father – orders made as sought by Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, ss.4A, 60B, 61DA(4), 60CC

Cases cited:
Goode v Goode [2006] FamCA 1346

Applicant:

MR AINSWORTH

Respondent:

MR MILES

File Number:

DGC 1703 of 2008

Judgment of:

Judge Burchardt

Hearing dates:

6, 7, 8 & 9 October 2015

Date of Last Submission:

9 October 2015

Delivered at:

Melbourne

Delivered on:

22 December 2015

REPRESENTATION

Counsel for the Applicant:

Mr Hone

Solicitors for the Applicant:

Ian G Hone Barrister & Solicitor

Counsel for the Respondent:

Ms Elleray

Solicitors for the Respondent:

Lampe Family Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Renwick

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

ORDERS

All previous orders be discharged.
The mother have sole parental responsibility for the children of the marriage X born (omitted) 2003 (“X”) and Y born (omitted) 2005 (“Y”) (“the children”).
The children live with the mother.
The children spend time with their father based upon their wishes and the mother facilitate such time.
The mother is to make available to the children, the father’s contact details, including but not limited to address, home line and mobile telephone numbers.
The father be permitted to send certified mail to the children four times per year.
The mother do all such acts and things and sign all documents necessary to ensure that the father is provided with a copy of all reports, photographs, notices and other information relating to the children’s schooling.
The parties be restrained by injunction from abusing, insulting, belittling, rebuking, or denigrating the other parent or discussing parenting issues, to or in the presence or hearing of the children, and from permitting any other person to so do.
Within 4 months, the mother attend and complete a workshop to address stress and anxiety and provide evidence of completion to the Independent Children’s Lawyer.
Pursuant to s.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1703 of 2008

MR AINSWORTH

Applicant

And

MR MILES

Respondent

REASONS FOR JUDGMENT

Introductory

This bitter parenting dispute is about the best interests of two children, X, born (omitted) 2003 and Y born (omitted) 2005. The applicant father seeks that the children be ordered to spend time with him and the mother is resistant to any contact whatsoever. The mother says that this is essentially a reflection of the children’s wishes and the father says that the children have been brainwashed to this point of view by the mother.
Although it is a terribly sad conclusion to reach, for the reasons that follow, I have formed the view that the orders sought by the Independent Children’s Lawyer and supported by the mother should be made.

Agreed or Uncontroversial Facts

The father was born on (omitted) 1956. He lives with his own mother in the family home in (omitted) and is a self-employed (occupation omitted). His sister Ms C lives in (omitted) and he gets on well with her.
The mother was born on (omitted) 1967, according to her affidavit filed 17 March 2014 (she denies the father’s earlier assertion that she was born on (omitted) 1969). The mother suffers from multiple sclerosis and post-traumatic stress disorder.
The parents commenced a relationship in 2001 and married in 2002 but separated in April 2008. X was born, as earlier noted on (omitted) 2003 and Y on (omitted) 2005.
The first set of court proceedings commenced as early as May 2008 and involved protracted interlocutory proceedings, including medical and family reports before final orders were made before Federal Magistrate Phipps (as his Honour then was) on 17 June 2010 at Dandenong. Both parties were then represented by counsel and the parties had the further assistance of an Independent Children’s Lawyer. The orders were made by consent.
Those orders provided for equal shared parental responsibility and a spend time regime with the father essentially, with a weekend in one week and a mid-week overnight in the alternate week together with half school holidays. There matters stood until the father filed an Initiating Application on 4 March 2014. The application, which was heard on an urgent basis on 5 March 2014, sought orders essentially to enable the children to attend the funeral of the paternal grandfather on 6 March 2014. The orders made on 5 March 2014 facilitated that outcome and further ordered a s.11F report.
The mother’s Response to the Initiating Application filed 17 March 2014 (she was self-represented at the time) included a request that the extant spend time orders be suspended while the children’s wellbeing was evaluated and that the father be psychologically assessed, together with various other matters.
Since the making of the orders in March 2014, the father has had no contact or communication with the children save for brief and unsuccessful (in every sense) contact during the family report writing process.

The Affidavit Materials Filed by the Parties

The father’s first Affidavit filed 4 March 2014 merely introduces the parties and the children and gives a short overview of the antecedent circumstances, including poor communication between the parents and articulates the desire to have the children attend his father’s funeral on (omitted) 2014.

The Affidavit of the Mother Filed 17 March 2014

This Affidavit prepared by the mother when she was acting for herself makes a number of complaints about the father’s “concerning behaviour”. The Affidavit goes back as far as December 2010 (and includes an alleged inappropriate episode when the father turned up at the children’s (hobby omitted) in May 2011) and details continuing difficulties of communication between the parents. The Affidavit is such that it is difficult and indeed inappropriate to seek to paraphrase it but it is fair to say that it includes assertions that the father failed to provide medical care in accordance with the children’s ongoing needs (kidney difficulties and asthma in the case of X and asthma and allergies in the case of Y). The Affidavit asserts a serious assault by the father on X (with no timeline indicated) and an incident in which the father who is a diabetic, tested his blood and spilled blood on X’s meal and made her eat it. The Affidavit also asserts that the children were left on their own while the father went shopping. The Affidavit asserted that the children, as a result of the difficulties with their father’s behaviour, had undergone bedwetting and fear. The Affidavit also asserted that the mother’s oldest child, Z, of whom Mr Ainsworth is not the father and who is autistic, had suffered assault and abuse in the past from Mr Ainsworth.
The Affidavit also dealt in detail with the events surrounding the death of the paternal grandfather with which I will deal when I deal with the oral evidence given. The Affidavit went on to assert that the extant orders should be suspended and asserted (the pages are not paginated):
“The reason I am applying for this order is because I have a duty of care to protect the children, both physically, psychologically and emotionally. I am to ensure that they are safe at all times and their overall wellbeing is kept healthy, positive and stable. Mr Ainsworth’s behaviour is disturbing and unpredictable and without a legal change to the orders, I feel less able to ensure the protection of my children.”
The mother filed another Affidavit also on 17 March 2014 which contains further annexures. The first Affidavit filed contains an attachment consisting of text messages sent by X to her mother which appear to show X scared in her father’s care. The Affidavit also includes what is described as a “DANGER ALERT” dated 26 February 2014 from a Dr P addressed “TO WHOM IT MAY CONCERN” which asserts inter alia “I believe the Ainsworth girls are at physical risk today from their father and going forwards until matters are sorted out.” and concludes, “As such I have advised Ms Miles that she needs to contravene the court orders to keep the two children safe. I do this with full respect to all authorities.”
A further annexure to the second affidavit filed on 17 March 2014 is a letter “To whom it may concern” once again from Dr P dated 12 March 2014 which confirms that X has scarring on her kidneys and still suffers with kidney infections. It also confirms that she has asthma, which is serious and unpredictable. A letter from Mr M, Paediatric Urologist, to Dr P dated 15 December 2009 and other material annexed to that affidavit confirms that X has scarring of the kidneys.

The Affidavit of the Father Filed 6 May 2014

This Affidavit responded to the mother’s earlier Affidavit material. It dealt in detail with the meal where blood was spilled onto X’s food, an incident on 5 March 2014 at the children’s school involving Child Protection workers, an incident where Mr Ainsworth attended the mother’s home on 3 March 2014 to serve court documentation and a response to the (hobby omitted) incident in 2011. The Affidavit went on to deny any anger or violence towards the mother or the children but did suggest that he played a game based on The Lion King which involved gentle taps to the head by the children to him and by him to them (paragraph 12). He went on to deny violence and responded in detail to the mother’s prior Affidavits. He also dealt in detail with the circumstances surrounding his father’s death, his conduct in this regard having been previously criticised in the mother’s Affidavit material. He asserted that the children were being brainwashed by the mother and surmised that this arose out of the lack of relationship on her part with her own father.

The Affidavit of the Mother Filed 16 January 2015

By this stage, the mother had moved to the position that the father should spend no time with the children. She repeated a number of earlier allegations relating to the blood spill on X’s food and the failure to supervise the children properly when they were in the father’s care. The Affidavit is essentially a recitation of criticisms of the father on a variety of fronts, including alleged assaults upon the children but it does not in a general way take the scope of the dispute much further. What is of interest is Annexure M-4, which is a series of texts messages passing between the parents showing the extremely argumentative nature of their interaction and the rigid concentration on what each felt was their correct position in relation to the implementation of Court orders.

The Affidavit of the Father Filed 1 May 2015

This Affidavit includes a brief overview of past history. It was essentially designed to support the father’s Application in a Case seeking an urgent hearing of the matter, given that he had not spent time with the children since 11 March 2014 apart from during the family report interviews. It repeats his concerns that the mother was alienating the children from him and contrary to his earlier position appears to accept the possibility of supervised time. Otherwise, the matter merely responds to the prior Affidavit material of the mother.

The Affidavit of the mother filed 7 May 2015

Once again this Affidavit is essentially responsive. It appends as annexure M-1 a further report from Dr P dated 5 May 2015 showing Dr P’s consistent view that the children should not spend time with the father.

The Affidavit of the father filed 1 October 2015

This Affidavit once again revisited X’s blood food episode and various other matters already commented on. He notes that although he had met Dr P, Dr P’s account of events was wholly from the mother. Once again this matter traverses back in time (including as far back as the (hobby omitted) club incident in 2011). For present purposes, it does not take the matter further.
Additionally to the parties, a number of other persons have filed affidavits.

The Affidavit of Dr G filed 21 November 2014

Dr G is a Consultant Psychiatrist who examined both of the parties. Although his Affidavit was filed in late 2014, he actually saw Mr Ainsworth and Ms Miles in mid-year.
In relation to the father, Dr G noted earlier reports by Dr B in 2009, Dr J dated 2 June 2010 and the “Danger Alert” letters written by the General Practitioner (“GP”) Dr P on 26 February 2014. On page 9 of his report, Dr G observed:
“Given that Dr P has known the family for many years, this examiner must place considerable clinical weight on these latter documents.”
Dr G noted on page 9 that:
“At interview, there were no obvious signs of psychiatric illness upon examination, but it is noted that his attitude towards his daughters maintaining contact with their mother was ambivalent.
Furthermore, he stated that his daughters’ reports about his violence were essentially incorrect, and the result of their mother’s manipulation of them.”
Under the heading “Diagnosis” pages 9-10, Dr G said:
“This examiner agrees with previous examiners that there is no direct evidence at interview that Mr Ainsworth is suffering from a formal psychiatric disorder.
However, if Dr P’ s views are deemed to be accurate, one would be inclined to suspect that Mr Ainsworth is suffering from a personality disorder, given that it would follow that he was pathologically lying, and that many of his behaviours were typical of someone with a personality disorder which is a psychiatric disorder.”
In his report on the mother, Dr G noted that the mother reported a number of episodes of serious and life-threatening physical abuse by the father and noted the denial by the father of all claims of assault upon both her and the children. He noted that the psychiatrist Dr B in 2009 had raised the possibility that the mother’s fears might be exaggerated and/or not justified but also said that he did not see her as having significant psychiatric or psychological disturbance.
He noted Dr J’s reports in 2010 which had highlighted the father’s unusual personality traits and that Dr J stated:
“It would seem likely that both Mr Ainsworth and Ms Miles have psychiatric vulnerabilities that may be exacerbated by stress.” (page 9 of the report).
Once again, Dr G concluded that there was no evidence that the mother was suffering from a formal psychiatric disorder.
Dr G was careful in both his reports to emphasise that it was for the Court to decide the factual disputes between the parties.
Dr G also prepared a supplementary report dated 28 July 2014 following a conversation with Dr P. This added “significant weight to the version of the events provided by Ms Miles on 5 June 2014”.

The Affidavit of Dr P filed 13 January 2014

This Affidavit is essentially facultative and puts into evidence a letter dated 23 December 2014 to the mother’s lawyers. This gives a history of Dr P’s appreciation of information about the mother and her children. It is heavily aligned with the mother (“Ms Miles has been a fantastic and competent carer for Y and X and it is my opinion that they will be far safer in her care indefinitely into the future”) but does confirm X’s ongoing health difficulties. It should be noted that the history as recounted in the Affidavit is wholly based upon what the mother told Dr P about the father.

The Affidavit of Dr P filed 4 September 2015

This Affidavit merely puts into evidence the correspondence already annexed to other Affidavits. A letter dated 5 May 2015 TO WHOM IT MAY CONCERN expresses concerns that the father does not administer appropriate drug treatments to the children when they are with him. It remains, however, strongly partisan. It concludes relevantly:
“As the girls have achieved the age of reason and have sound logic as they approach puberty, I think that their wishes over visitation rights and access should be respected.”

The Affidavit of Ms M filed 1 October 2015

Ms M is the father’s mother. Scarcely surprisingly, her Affidavit is supportive of the father and the allegedly good relationship he has with the children. It also attests to her concern at not seeing the children herself and says at paragraph 7:
“I would love to spend time with my granddaughters in the event Mr Ainsworth does not get to spend time with them. I am limited in my ability to drive and have church commitments on Sundays which would tend to make Saturdays the most practical day and my home the most practical place.”

The supporting Affidavits of Ms C and Ms F

These are respectively the sister and a friend of the father and they have filed Affidavits supportive of his position.

The Family Reports of Ms J

Ms J has produced three Family Reports. I have of course had regard to all three reports. Because it is the most recent one that operates on the circumstances as they are now (the first two were in 2014), it is that one upon which I will largely concentrate.
I note that when Ms J saw the parties for her first report dated 29 July 2014, the themes of mutual recrimination between the parents were very much as they have been on an ongoing basis. I further note that X did not want to see or speak with her father on the day of interview or ever again (paragraph 38) but that Y was not totally against meeting her father on the day provided her sister was in her company (paragraph 49).
The interaction between the children and the father did not go well, because the children essentially ignored him. His responses while natural were in part accusatory and negative. The children were deeply distressed when he left and they saw their mother again.
Ms J expressed concerns about the ability of the mother to genuinely encourage the children to continue a relationship with the father into the future and noted the long-term difficulties that might arise if the children did not spend time with him (paragraph 78). The report recommended supervised visits. It should be noted that for one reason or another (and the parents blame each other) these did not occur.
The addendum family report dated 19 September 2014 essentially repeats the matters in the earlier report. I note that paragraph 12 Ms J observed, correctly in my view:
“It is likely that during the heightened conflictual moments between them, they both feel that their world is out of control and struggle to cope with their situation with familiar responses. The writer is of the opinion that it is hard if not impossible, for the parents to overcome some of their inherent personality traits in this case and the counselling orders may not bring vast and permanent changes in their behaviour.”

Ms J's Addendum Family Report dated 14 August 2015

The report traverses the history of the matter and asserts at paragraphs 8 and 9:
“8. Mr Ainsworth seeks an order that X and Y spend time with him at his home on a regular basis. He is of the view that the children are totally brainwashed by their mother’s negative propaganda against him and that has led them to being alienated from him. Mr Ainsworth maintains that he had a close relationship with his children and they spent substantial time with him until early 2014. He is of the view that he was able to get a Court order for the children to attend his father’s funeral which made the mother to decide to cut off children’s relationship with him. He wishes to rebuild his relationship by way of spending regular time with them.
9. Ms Miles opposes any contact or communication between the father and the children. She is of the firm view that the father has deteriorating mental health issues and likely to cause physical and emotional harm to the children if they are made to spend time with him. Ms Miles informs that both X and Y continue to express strong refusal to have a relationship with their father. She is hopeful that their expressed views and wishes would be heard and respected by the Court.”

It should be noted that paragraph 34 of the 29 July 2014 family report the father effectively admitted not giving medication prescribed by

Dr P to the children to manage their asthma condition because of what he perceived to be the side-effects of the drug, with an assertion that the children did not suffer from asthma during their time spent with him.
During her interviews for the most recent report dated 14 August 2015, Ms J found the father to be grief-stricken, downcast and disconsolate as a result of not having contact or communication since February 2014 with the children. The father was critical of the mother in every way, including asserted manipulation of “the system” and noted the sadness of his mother that she could not continue to have a relationship with his children.
Ms M, the paternal grandmother also attended the interview briefly and confirmed the father’s sadness. She was unsurprisingly, supportive of her son and dismissive of the mother.
The mother presented as “anxious and fretful” and appeared to have come to the conclusion that her children were better off having no relationship with the father (paragraph 22). She was unable to say how the children responded when shown letters from the father that she herself had thought were appropriate.
The mother was asked about the long-term impact of the children not having any relationship with her father but her replies were ambivalent at best (paragraph 25). She was vividly opposed to the children seeing the father at all.
The children were interviewed again and X was wholly opposed to seeing her father. I note that when she wrote matters out she referred to:
“he hurts me, he does not supervise us, once he made me eat food that had blood from his finger and he brings me back many bad memories” (paragraph 32).
Y was noted to change her position somewhat. She was now highly opposed to seeing her father.
Paragraphs 38-44 of the report say (this is an extended passage but worth setting out in full):
“38. X (12) and Y (10) have not had any direct contact or communication with their father since early 2014. At present both children express extreme reluctance to connect with their father emotionally and refuse to see or speak with him. Irrespective of various factors and situations as well as parental attitudes and actions leading to this sorry outcome, there needs to be a closure to the relentless tug of war between the parents being detrimental to the general development and progress of X and Y. It would appear that the more pressure is applied less progress is achieved in relation to children’s time with the father.
39. The writer is informed that in the past the mother was willing to allow supervised visits but it was unacceptable to the father. At present, the father is willing for supervised visits but the mother feels that it is too onerous on the children. The running theme in this family has been what is acceptable to one parent is objectionable to the other in almost all the issues relating to their children’s upbringing. This trend is likely to continue in the future.
40. As for as the children are concerned, they seem to have emotionally moved far away from their father and at a point of no return at this stage. Forcing them to link with their father at this juncture would be counterproductive. Even if the visits take place at a contact centre, it is difficult to see that the children attend there. Moreover if they are forcefully brought there, it is likely that both X and Y would be highly stressed, anxious and angry with their father. It is difficult to see how anyone can make the visits between the children and the father stress-free and beneficial for both parties.
41. X and Y present as totally aligned with their mother’s views, feelings and concerns. They seem totally estranged form (sic) their father. As stated previously, it is the writer (sic) understanding that generally, the alienation of a child from a parent in the separation context, is a complex matter. The contributing factors have intricate mix of adult as well as child issues. Some of the personality features of the parents may include poor impulse control, rigid thinking, emotional fragility, enmeshed relationship with the children and deficits in the personal, social competence of the parents, as well as spiteful and punitive attitudes by one or both parents.
42. There are child issues such as being overwhelmed by parental conflicts, experience significant anxiety and regression, alignment with a parent or lack of affinity with the other parent prior to or after separation. Alienation factor also need to be understood along children’s development and attachment dimensions. In taking sides and assuming a position of ‘one parent is all good and the other is all bad’, children are less likely to feel caught in the middle so that their anxiety is contained.
43. X is an emotionally troubled adolescent and is extremely sensitive in relation to the issue of resuming a relationship with her father. During the interview that took place a year ago, Y was reported to and appeared to have had more affinity with her father. During the latest interviews, she seemed to have changed her position. She had made some comments about missing ‘a good dad’ in her life and indicated that she does not consider Mr Ainsworth ‘a good dad’. She also informs that her mother had told her that she has ‘a lot of evidence to prove what bad dad has done’.
44. As there has been no contact or communication between the father and Y since early 2014, it is logical to assume that her change of mind has originated with the influence and enmeshment of her with her mother and older sister’s point of view. Y also comments that since that time, her relationship with her mother and sister has improved and they now enjoy togetherness as a family. Therefore it would seem that Y’s decision not to have a relationship with her father is probably founded in her basic need to emotionally survive and receive support and approval from the other members of her primary family unit.”
The report went on to suggest that the father needs grief counselling to learn to live his life without contact with his children. It further noted at paragraph 47 that the mother had suggested time with the paternal grandmother without the father being present. The report said:
“… Ms M has not indicated to the writer that she wishes to spend time with X and Y and it is the writer’s opinion that the grandmother may find it emotionally heavy and practically difficult to spend time with the grandchildren excluding her son. Such meetings may also generate tension and conflicts between the grandmother and Mr Ainsworth. Ms M has stated that she most of all needs peace and calm in her life at this stage. However if Ms M wishes to have visits with the children, she should contact the ICL in the matter.”
The report went on at paragraph 48 to say:
“Ms Miles has several health issues and she is emotionally very fragile. She has the responsibility of catering for the various needs of her three children as a sole parent, although it is her decision to be in that position. She is highly anxious and vulnerable. If there are further orders allowing the children to spend regimented time with their father, whether or not supervised, Ms Miles might find it extremely difficult to stay physically and emotionally well enough to cater for the needs of her children. If one focuses on the wellbeing of the children, and the general welfare of the mother’s family unit, it is essential that no further stress is placed upon her.”
The report went on to recommend that the children live with their mother and spend time with the father based on their wishes. A number of ancillary measures for allowing for the possibility of time to be spent with the father by telephone and contact by mail and the like are also suggested.

The evidence given at Court

It should be noted this case ran over a number of days. Any detailed recitation of the evidence taken from my notes would make this already relatively lengthy judgment prolix. What follows represents those points of the evidence that struck me as being of particular significance.

The evidence of the father

In evidence-in-chief, the father simply adopted his Affidavits as true and correct.
Under cross-examination by counsel for the mother, he was first taken to his employment. His answers about the amount of money that he gives to his own mother to assist her and as to his wages generally were evasive and non-responsive and involved his changing his answer on at least one occasion.
The father was cross-examined about the issues arising out of his father’s death. He admitted that he had asked the children to say goodbye to their grandfather over the telephone because he thought he was dying but said that sadly he lingered on. He did not see what was wrong with the grandfather saying goodbye to the children.
He did not deny removing the children from school in February 2014. He said this was a normal access weekend for him that he also had parental rights and his grandfather was passing. He took the children out early from school at 12.30 pm and the plan was to get them home for a couple of hours and then go and see the grandfather. He denied that his father was gasping for breath when the children saw him.
The father said he was aware of the mother’s multiple sclerosis from about 2004 onwards and confirmed that her eldest son Z has autism. The father said he had no problem with authority figures and there was no reason why he should be out of the children’s lives. He said the children had the right to be with him and enjoyed their time with him.
He denied being abrupt, demanding or intimidating and said that he was not difficult but the matter was the other way around and that the mother never agreed with his suggestions. He admitted sending text messages which on occasions included calling the mother a bitch and telling her to grow up but said that she called him an arsehole and what goes around can go around.
The father said he had sought consent for the children to visit his father’s funeral by a registered mail letter because the mother never takes his calls. He said he applied to the Court because he got no reply.
He confirmed that he had served his Court Application at about 9.30 pm at the mother’s home. There was no Intervention Order in place at the time.
He said he went to the children’s school on 5 March 2014 and was told by the principal the children were not there. Then the Department of Human Services (“DHS”) turned up and wanted to interview the children. The father said he agreed provided he was there as the children had a right to be told who wanted to speak to them. But the DHS officers refused. They said the children were scared. The children ultimately went to the father’s sister and she took them to the funeral. All the other grandchildren were there.
The father said that all the issues arising out of this episode were created by the mother.
The father continued to deny all allegations made by the mother and denied smacking the children even once. He said that X was reserved in her manner for some six weeks before the grandfather died.
The father accepted that he makes the children do chores at his home and said he was assertive and made them pick up their clothes from the bathroom. He said he told the children to write to the school as to why they were not doing their homework. Y wrote a letter but X did not. He said he was sick of being accused of doing things he did not do. During this passage of his evidence, the father’s voice was louder than otherwise and was attended by some measure of pressure of speech.
The father referred to Y’s letter to the school annexed in the Affidavit material) and said he was touched, moved and inspired by what she wrote. This response, I should interpolate and say, shows a staggering lack of insight when one looks at the terms of the note.
The father said the children are coached and coerced. The father described the instant where blood came onto X’s food. He pin-pricked his finger as he is a diabetic. He grabbed the edge of the plate and X made an issue of it. He said he removed the surrounding area and made her eat the remainder. He confirmed saying to X that it was not a restaurant. He said he was not an angry person, although he was voluble and excited when giving this evidence.
He denied the incident when X text messaged her mother about being shot by the father and denied making any threats against the mother at any time. He said the mother made a notification to the DHS out of spite. It should be noted that the DHS s.69ZW report dated

17 April 2014 records that X disclosed being hit four times per week and being scared to go back to her father, as was Y (the report was generally critical of Mr Ainsworth who did not show himself to advantage in his dealings with the Department’s officers).
The father believes that the children are coerced by the mother as to what to say to whom and when.
The father confirmed the Lion King game and said the children were never bruised. He denied once again smacking the children and said all this was rehearsed by the mother. He conceded, however, that the children told the DHS that they did not like being hit on the head. The father confirmed that he has a loud voice and is assertive and that he did confiscate X’s phone. He said it was possible that the phrase, “Kill the bitch” had been taken from a film.
When it was put to him that Y had complained during the s.11F report that he yells at her he said this was all untrue. He said garbage in, garbage out.
The father says he knows X has a kidney issue but it is under control. Both children are asthmatic but have no symptoms in his care. He did not object to providing medication to X. He had seen Google material about medication and did refuse to give medication on one occasion. Singulair was the only medication he had stopped. He showed his Google material to the children and told them the drugs were unsuitable.
I interpolate and say that it is a measure of the father’s lack of insight that he is of the view that he knows more about the medical treatment of his children than the doctor who had prescribed the drugs for them.
The father said he cared about the mother. He had loved her but she is a liar. He agreed she was a fantastic carer for the children and had a lot on her plate with Z. He said his parenting was quite good and that he had done no wrong to the mother or his children. He had said that the children tell him in the car that they want to live with him but this was not in his Affidavit material. He said he had no ill feelings to the mother and wanted no harm to come to her.

The Father Under Cross-Examination by the Independent Children's Lawyer

The father confirmed that he had not seen the children since March 2014, but had sent them letters for their birthdays and Christmas mainly in the way of cards. He had received no response. He sent letters every six to eight weeks. He denied ever yelling at the children but said he had a loud voice. He said he did not yell at the children and he was assertive but went on to say that he had not seen his yelling as a problem. Once again this demonstrates his lack of insight.
He said the children were coached to say they were scared of him. Despite being taken to the earlier reports of Dr B and Dr J he was dismissive of suggestions that he might suffer from hypomania if stressed and suffer from lack of judgment as a result. He said he had never shown inadequate care of his children and that his conduct had not affected them.
He conceded there were times when he was irritable but that he had no trouble controlling this when the children were with him. He said he was stressed when seeing Dr J, because he had not seen the children for 38 months. He confirmed seeing Dr S, who had been of considerable assistance to him but he had not needed to see anyone since he last saw Dr S in 2009. He said he was stressed but he had learnt how to deal with it. He said any person not seeing children would need counselling, but he was not having counselling. He said he had discussed this with his GP but had never gotten around to it.
He undertook a parenting course in 2009, but had never undertaken an anger management course because he did not have a problem. He said he did not take his frustrations out on anyone and was not aggressive, abrupt or angry.
When it was put to him there had been no less than nine independent reports he replied “but there have been no issues”.
When it was put that there were two DHS reports during the marriage he said nothing came of them. He denied the truthfulness of the report in 2007.
When taken to the incident on 5 March 2014 when the DHS attended the children’s school he said he was trying to take his children away and he was frustrated but did not get angry. He denied swearing at the DHS officers. He said he was annoyed and frustrated. When the s.91B report was put to him he said there was no risk of emotional harm to the children with him or undue pressure on them. He said all six Intervention Order applications taken against him were unnecessary.
When it was put to him that the mother was frightened of him he said these were her issues and that she had no reason to be frightened of him. He denied saying in 2003 “if you leave me I will shoot us both”. He denied holding a knife to the wife’s back in 2008 and said she had made it all up.
It is probably not necessary to traverse the father’s further evidence in any great detail. It was all wholly self-exculpatory and dismissive of the mother. I note that the father did admit telling the children he had produced their letters in the Court. He denied telling the children that their mother was accusing him of not letting them do their homework and that this demonstrated a lack of insight on his part. He said in respect of Dr P’s reports and the family reports, that everything came from the mother and that the children were coached.
The father confirmed that he continues to live with his mother and that if the children lived with them they would change school. He said he would encourage a relationship between the children and the mother. He said that he did not say negative things about her. He immediately afterwards said, however, that she was in the Court for money and had brainwashed the children.
It should be noted that I limited the time spent in cross-examination of the father because by the time I did so, the pattern and purport of his evidence was wholly clear and did not require further elucidation.

The Father In Re-Examination

I permitted fairly extensive re-examination of the father. I note that the father said he would undertake counselling if ordered and that he professed to have heard of only two of the nine DHS reports. He said DHS had been misled. He confirmed that he had had little contact with Dr P. He said he had one consultation with Dr P for flu shots and had discussed counselling after three allegations of threats to kill. The father said he would not breach Court orders and did not disobey authorities.
He finally said that the fact that his seeing the children caused the mother stress was her problem.

The Evidence Of The Paternal Grandmother

Ms M confirmed that the father lives with her and that her Affidavit was true and correct. She said she loved the girls and had sent a birthday card by registered post but had received no reply.
Under cross-examination Ms M confirmed details of her extensive family and the fact that they attended her husband’s funeral.
Under cross-examination by counsel for the Independent Children's Lawyer little of any moment emerged. Ms M did say that the mother had refused for her to see the children and that she could see the children without the father. She was still prepared to supervise time spent by the father with the children. She confirmed that she cannot travel beyond (omitted).

It should be noted that the other two witnesses were not called to give evidence.

The Evidence Of The Mother

The mother confirmed that her Affidavits were true and correct and gave details of her ongoing medical difficulties which are not insignificant.
The mother confirmed the elaborate security arrangements at her home, including a panic button which sets off a siren which she has had for the last five years.
Under cross-examination by counsel for the father, the mother confirmed family violence in all three of her marriages. She maintained that the father in this case did commit acts of family violence upon her and denied her assertions were tactical to advance her case. She confirmed that she had brought a number of applications for Intervention Orders against the father, of which one was refused and the others were not determined by the Court. She was unable to remember precisely whether two were resolved by undertakings.
The mother maintained her assertion that the father tried to strangle her on one occasion and that he told her at that time that if he left her he would shoot her. She confirmed, however, that she had not sought medical attention for the strangulation and denied that this was a fabrication.
She was taken to a number of the Intervention Order applications. Her answers, I should say, were non-responsive and discursive in a manner markedly similar to the responses of the father when he was under cross-examination.
The mother denied fabricating allegations of breach of the Intervention Orders.
The mother was cross-examined about the disclosures made allegedly by X to Dr P. She said he had seen texts in the communication book that confirmed that she was present when X made disclosure. She denied writing it all down for X. However, she confirmed she is usually in the room when the children see Dr P and that Dr P got his information from her.
The mother confirmed that there was regular time with the father before the death of the paternal grandfather. She confirmed that she did not want the children to go to the funeral. When it was put to her that she responded to the Court’s orders permitting the children to go by contacting DHS, it ultimately emerged that this, indeed, was what occurred. She said that the children did not want to go. She denied trying to get back at the father for winning that fight.
The mother conceded that she had not complied with earlier Court orders of Judge Phipps and conceded that she can be hyper-vigilant. She denied, however, lying to third parties who had investigated matters.
When the most recent family report of Ms J was put to her, the mother admitted that the children were totally aligned with her and alienated from the father. She said this was not always the case but the process started in about September to November of 2013. She was watching the situation very closely but had not been aware at that time how ill the paternal grandfather was.
The mother asserted that the children were totally estranged from the father and that she had listened to her daughters. She said she had tried to encourage the children to be more open to seeing their father and asked them if they wished to write to him. She said she did not like to stress them. I would interpolate to say that the mother’s answers about this encouragement were entirely unconvincing.
She said she has been trying to tell X that she is safe and she needs reassurance. She said that she told the X there was evidence that would keep her safe but denied saying that the father was a bad dad. The answer is palpably untrue and I do not accept it. The mother confirmed that all she wanted to do was to protect the children. The mother confirmed she can be anxious and vulnerable from time to time. Noteworthily, she said supervised time at Berry Street would be encouraged but only if the children wished it.
The mother said that she had completed a Breakaway from Anxiety course to manage anxiety and had been seeking assistance for some 18 months from professionals. Finally, the mother confirmed that she had not wanted the children to go to the grandfather’s funeral but the father got a Court order.

The Mother Under Cross-Examination by the Independent Children’s Lawyer’s Counsel

The mother confirmed that counselling and psychological assistance over a period of time might lead to a change of view. The father could attend if this did not stress the children too much. The mother confirmed that Z sees his father once a month and this they arrange between themselves. The mother conceded that she had not handled the processes that led to the 29 July 2014 family report by Ms J well. She said she could have handled the matter better and conceded that her anxiety might have affected the children a little bit.
The mother gave details of the event on 4 March 2014 when the father served his application. She said the father banged on the windows. The children came out of their rooms and she hit the panic button. She had never used this before apart from testing. She said Z came back with a knife and she told him to stop and to remember safety first. She said the children ceased counselling in March 2014 before the s.11F interviews on 19 March 2014.
The mother’s answers in dealing with the incident of 4 March 2014 had all the marks of being changed on the run to suit what the mother thought was appropriate.
The mother gave details of further counselling but said that Y had ceased as she no longer needed it.
The mother was cross-examined about treatment by Dr P who, it emerges, conducts regular checks for asthma and of X’s kidney difficulties.
Although the mother says she takes the children to see Dr P if they are feeling low and would get a referral for a psychologist if necessary, she also said, “I take them for the record” (I take this to be, as it were, a desire to record evidence to be used later). She denied saying to the children, “if you want to go, I can’t stop you. If you don’t want to go, we will have to do something”.
She was asked about the card sent by Ms M and said she does not call her because the father resides there. She had asked the children if they wished to write back thanking her but they did not want to. She said it would be good to re-establish relationships between the children and the paternal grandmother and time would be okay if there was someone else to help. Time in a public place would be okay possibly afternoon tea in a park.
The mother said the children did not want to go to the paternal grandfather’s funeral. X is very mature for her years and Y has come to her views herself.
In my view, nothing emerged in re-examination of any moment.

The evidence of Dr P

Dr P in evidence-in-chief adopted his Affidavits as true and correct. He first saw the mother in 1998 and has known the children with her for the same period of time (I would say, rather, from when they were born). He said he knew the children well.
He was not sure if he had ever discussed the children with Dr G. He had never had any suspicion the children were coached and had often interviewed the children alone and also with the mother. He first saw the father on 17 March 2003 and had had eight visits until 6 August 2004.
He tendered exhibit R4, these being copies of his clinical notes.
He mainly saw the children for coughs and colds.
He remembered the strangling incident vividly because it was said to him in a matter-of-fact fashion. The mother made a strangling motion.
He makes comprehensive records as he is the family doctor. He said people come to him with all sorts of problems including wills. He said Ms Miles had held up really well, was a single mother with an adult autistic son and was not able to work. She had legal expenses and was battling to get food on the table. He said she had done a marvellous job holding the family together despite her physical problems.
I would interpolate and say that Dr P emerged as being quite clearly wholly partisan in favour of the mother in this proceeding.
He confirmed that X is mature for her years. He tells the authorities the children are in distress and has spoken to DHS officers and psychologists. He said nothing happens and this is very frustrating. He had discussed with the mother how to record matters for legal purposes.
Under cross-examination by counsel for the father in my view little emerged, save that Dr P remained wholly partisan. While he was a palpably honest and sincere witness, some of his answers showed the extent of his alignment. He said he had never seen the mother hyper-vigilant and did not accept that she was although she herself had admitted it. He said the children’s relationship with their father was not good. They are getting older now and he did not see how it could be turned around. I limited cross examination of Dr P because his views were so clear.
Under cross-examination by counsel for the Independent Children’s Lawyer, in my view, nothing of any moment emerged.

The evidence of Dr G

Dr G was interposed during the evidence of Dr P. He confirmed that his Affidavit was true and correct and said that he had spoken with Dr P but could not say for how long.
Under cross-examination by counsel for the father, he accepted that the mother had been the primary patient of Dr P. He remembered talking to the GP who was very concerned. He was surprised that Dr P had seen the father eight times. He said GP’s are fairly astute and that Dr P was frustrated because nobody was listening to him. He confirmed that Dr P’s remarks were very influential in his conclusions.
Under cross-examination by counsel for the Independent Children’s Lawyer, Dr G confirmed that the father did not see anything wrong with himself and that he might well be prone to blaming others.

The evidence of Ms J

Under cross-examination by counsel for the Independent Children’s Lawyer, Ms J confirmed that she has been a Family Consultant since 2001 and worked in court matters since 1985. She said it was quite frequent that children refused to see a parent. She had seen the children in July 2014 when they saw their father, but supervised time had not thereafter occurred. She said that when Y cried in 2014, this was because she had lost something, but the children do not want to connect with their father. The father’s way of trying to connect is not helpful. He is trying to cope with his own problems and not concentrating on being a parent. This would be scary for the children. The father had been unable to contain himself and made comments about the mother to the children.
Ms J confirmed that the parents’ personalities will not change. The father is not physically dangerous but may hurt the children emotionally as he has his own agenda when he interacts with them. The children are now clear they do not want anything to do with the father and Y has changed her position completely. Even supervised time is unworkable. The children would be rude. Ms J understands that the father loves the children but it will not help for them to come together. The more pressure that is put on the children, the worse it will be.
Ms J confirmed that these are not emotionally mature children. The mother has chopped and changed and the children are definitely influenced by her. They were also partly influenced by the father before contact ceased. The decision not to see their father is not a mature decision but they are victims of their surroundings. Ms J doubted that counselling would assist the father.
Under cross-examination by counsel for the father, Ms J confirmed that X said, “I won't let my sister see the father” and Y would not wish to have seen her father if X did not go. It is clear all this is spoken about in the mother’s house.
Photographs showed how close a relationship there had been between the father and children. Then in four and a half months, the children did not wish to see him. This was surprising.
The mother has anxieties and no trust in the father. The paternal grandmother, according to the mother, could not control the father. The mother was concerned about the removal of the paternal grandfather’s influence. Ms J had no doubt that the mother really believes what she says about the father.
The impact of having a negative view of the father and not seeing him may repeat in the next generation and the children are likely to have a sense of loss.
The mother says it would be diabolical if the children had relationships with the father which implies he is a demon. Further, the children are likely to question which part of them is their father.
Ms J asked rhetorically, “How can we force the children to see their father” and said that if they were so forced this would lead to no contact ever. She said in the latest interview she could not see how this could be made to work given the mother and children’s attitudes and the father’s lack of understanding. She did say, however, that the paternal grandmother was very balanced and was able to see both sides of the dispute.
She said the mother was not capable of promoting a positive image of the father and at this point it was simply not a possibility that they would be made to see him. The mother is a good parent but the only problem is she will not let the children love the other parent. Finally, Ms J said that you would need a very good counsellor if there was to be time with the father. She could not think of anyone who would be able to do it.
Under cross-examination by counsel for the mother, Ms J said she did not see the father as an angry person. He was angry at not seeing his children. He was unaware of his contribution to the problem. The children were firm in not wanting to see him.

Findings as to the Credit of the Parties

I have already made a number of observations about the credit of the witnesses while I was detailing their evidence above.
Neither of the two primary parties was an impressive witness. I have commented on the father’s evasive and non-responsive evidence already. His demeanour and presentation was remarkably consistent with the observations of the various family reports. His personality presents as somewhat unusual. He says himself and he is right, that he has a very loud voice and he is a big, burly man who could easily be intimidating, particularly to young children.
When taken to incidents that clearly had been distressing to him, he responded with raised voice and some pressure of speech. He became voluble and excited. His suggestion that he was not an angry person is manifestly incorrect.
It is sufficient to say that Mr Ainsworth’s lack of insight was demonstrated at every relevant turn. While his endeavours to have the children farewell his own father are entirely natural, they were conducted in a fashion insufficiently sensitive to the children’s tender years. His behaviour at the children’s school when the DHS officers were present was wildly inappropriate.
It is sufficient to say that while the father clearly believed every word he was telling the Court, his very marked lack of insight has caused his memory to become, to an extent, self-serving and reconstructive.
The mother was little better, although she presented as a very different sort of person. Like those who have interviewed her from time to time, she struck me as being inherently a nervous and agitated person. She says herself that she is hyper-vigilant. Her answers were, like those of the father, often non-responsive and discursive. Putting it shortly, she was at times unconvincing and her assertion that she did not describe the father as a bad dad is plainly untrue. She was a witness whose evidence must be approached with considerable caution.
The paternal grandmother was a palpably honest witness with a measure of insight largely denied to both the father and mother. Her evidence that she would be able to see the children without the father was given clearly to counsel for the Independent Children’s Lawyer’s question and I accept it.
The evidence of Dr P was given honestly but he is clearly an entirely partisan figure. The evidence of Dr G was unremarkable.
The evidence of Ms J was given within her area of professional expertise. She is an extremely experienced family consultant and she answered all questions directly and responsibly. She was not meaningfully shaken in any cross-examination and exuded a genuine compassion for the most unfortunate dynamic that obtains between the parents and its consequences upon both them and the children. I accept her evidence entirely.

Findings About the Facts

It is not necessary to have to analyse and make conclusions about every of the all too numerous factual disputes between the parties. It is clear that the relationship between the father and the mother was such that, by the end of it, the mother was fearful of the father and had it clear in her own mind that she had been the subject of considerable family violence, including the strangulation attempt.
I am unable, at so long a distance from the asserted facts, to arrive at definite conclusions about so serious a matter, despite the contemporaneous complaint made to Dr P. What is significant in the ultimate is not the detail of the countervailing allegations of violence and their denials but the established fact that the mother clearly believes they are true and is in a state of fearfulness of the father as a result.
So far as the father’s relationship with the children is concerned, it seems to have proceeded uneventfully until the incident of the grandfather’s impending demise. The father’s denial of any kind of physical assaults on the children runs wholly contrary to what the children have themselves told others. The complaints made to Dr P can, to all effects and purposes, be set aside (I accept that X was worded up to say what she said by her mother, who was present at the time of the disclosures made to Dr P, who already had a clear view about the matter from what he had been told over time by the mother, in any event). Nonetheless, the overall picture is, I am afraid all too clear. The father’s assertions that such taps as he gave to the children were just part of a game in which the children joined enthusiastically is not one I can accept. I am not prepared to find that he has intentionally assaulted his children, but even a tap from a man as big and strong as Mr Ainsworth would be likely to be seen as a blow by children as young as these. It is neither possible nor necessary to arrive at, once again, definite clearly defined conclusions. It is sufficient to note that the children are of the view that their father had hit them and while it is more probable than otherwise that, to an extent, he has it is the children’s present view of the matter that is decisive.
The father handled the impending demise of his own father with, I regret to say, a characteristic lack of insight. The mother’s response to the father’s not unreasonable desire to have the children attend his father’s funeral was spiteful and vindictive.
While, once again the father showed an alarming lack of insight in even on his version of the events, coming around to the mother’s premises late at night to try and serve his Court application, the mother’s reaction of hitting the panic button says volumes for her own insecurity and lack of insight itself.
When confronted by a Court result she did not like, the mother deliberately kept the children from school to disrupt the plans for the funeral. The father played into her hand by misconducting himself at the school (checking if the children were there at the time) and things have gone from bad to worse ever since.
The father says that the mother has alienated the children from him, and it is clear that this is so. This is a deplorable course of conduct which has been totally successful but what the father does not understand is the extent to which he himself has contributed by his actions over many years and in more recent times.

Even his behaviour when he saw the children at the family report interview was lacking in adult self-control and wholly counterproductive. His reproachful, accusatory style only served further to alienate the children from him.
Ms J, whose evidence once again, I repeat I fully accept, has told the Court that any endeavour to force the children to see their father will only make matters worse. When the possibility of counselling was put to her to reintroduce or re-establish the relationship in some fashion, she candidly conceded that she could not think of anybody who would have the capacity to do it.
While the disputes between the parties roamed over a far wider field than I have just described above these, in my view, are the matters which are salient to an examination of the children’s best interests pursuant to the statutory pathway.

Statutory Pathway

The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by
a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”

Submissions of the Parties

Because of time constraints, the parties were put to a program of written closing submissions.
The written submissions of the Independent Children's Lawyer propose orders whereby the mother has sole parental responsibility and the children spend time with their father based upon their wishes. The father is to be permitted to send the children certified mail four times per year and there are certain ancillary orders which are unremarkable. The written submissions of the Independent Children's Lawyer are extremely helpful but it is not necessary to paraphrase them further. I propose to approach the matter by reference to the statutory pathway (already set out above) as those submissions require. I note that the submissions do not deal at all with the possibility of time being spent by the paternal grandmother.
Likewise, the written submissions filed on behalf of the mother are helpful but it is not necessary for me to deal with them further at this stage. They essentially adopt and support the position contended for by the Independent Children's Lawyer.
No written submissions have been received on behalf of the father as at the time of the dictation of these reasons for the judgment.

Sole Parental Responsibility

It is clear that the presumption as to equal shared parental responsibility is rebutted in this case. Leaving aside the question of family violence, with which I have dealt already, it is clear the application of the presumption of equal shared parental responsibility would conflict with the best interests of the children (s.61DA(4) Family Law Act 1975 (“the Act”)). This is because of the children’s views of the father at the present time, which has certainly been significantly contributed to by the father’s lack of insight and past behaviour. Furthermore, whatever its extent may have been, there is no doubt that there has been family violence by the father within, at the very least, the broader definition contained in s.4A of the Act. Although this puts the cart somewhat before the horse, it is sufficient in these extraordinary circumstances to say that an order for joint parental responsibility is contraindicated in every possible way. The parents cannot communicate. The mother is scared of the father (to a very considerable and extreme degree) and the father has an extremely poor view of the mother, whom he accuses, correctly enough, in part, of alienating the children. An order for equal shared parental responsibility would clearly be utterly unworkable and is clearly contraindicated by the circumstances in which the children find themselves.
Accordingly, the matter becomes one of determination of orders in accordance with the children’s best interests by reference to the principles in s.60B and the primary and additional considerations in s.60CC of the Act. While I have regard to s.60B, it is appropriate in this case to move directly to s.60CC.

Section 60CC(2) – The Primary Considerations

Everyone agrees in principle that it would benefit the children to have a meaningful relationship with the father as well as the mother but the Court is required to protect the children from physical or psychological harm and from being exposed to family violence. Pursuant to s.60CC(2A), this latter consideration is to be given greater weight. I have already made my findings about family violence. The incident involving the blood in X’s food in which as I find it is clear, he told her to eat the food on the footing that “this is not a restaurant”, probably constitutes abuse, in any event. It is not, however, necessary to arrive at a concluded view about this aspect of the matter, because the additional considerations are overwhelming when taken cumulatively.

Section 60CC(3) – The Additional Considerations

Section 60CC(3)(a)

The children’s’ views could not have been expressed more clearly, as the Independent Children's Lawyer’s submissions indicate. These views have become more entrenched as time has gone by. While the father undoubtedly contributed to this by his behaviour during the 2014 family report episode, there can be no doubt both that the mother has continued, as I find directly, to foment in the children’s distrust and fear of their father. X has also, I have no doubt, as Ms J asserts, directly or indirectly pressured her sister to adopt the same view. Whatever its causation and in many respects it does not really, unfortunately, matter, the fact is that the children have expressed in the strongest terms an adamantine refusal to see or spend time with their father or to have any contact with him. Ms J’s opinion is that any endeavour to force them to do so will be even more counterproductive and this is a matter to which I give, in the circumstances, very considerable weight. Although Ms M described the children as intelligent but not necessarily mature, their opinions are a fact of life.

Section 60CC(3)(b)

The children have a warm but unfortunately it would seem enmeshed, relationship with their mother. Their relationship with their father is, unfortunately, totally fractured. It would seem that historically they have had a good relationship with the paternal grandmother and this is a matter to which I shall return. I would observe that there does not appear to be any evidence of any moment as to the children’s relationship with other members of both extended families.

Section 60CC(3)(c)

There can be no doubt that the father has made very extensive efforts to participate in making decisions about the children and to spend time and communicate with them. This proceeding reflects the failure of those initiatives and endeavours.

Section 60CC(3)(ca)

There is no question that the mother has brought these children up as the primary carer since separation. The father’s contribution appears to have been unexceptional until the debacle in early 2014, but I note the mother’s ongoing concerns as to the father’s contribution to Child Support and the father’s unsatisfactory evidence about his income.

Section 60CC(3)(d)

Any endeavour to force the children to see their father would be disastrous and counterproductive, as Ms J has found.

Section 60CC(3)(e)

In broad terms of principle, there is no overwhelming practical difficulty and expense related to the children spending time with the father, as the Independent Children's Lawyer’s submissions correctly point out. The practical difficulty, however, with having the children spend time with him is their refusal to do so.

Section 60CC(3)(f)

The mother has the capacity to provide for the needs of the children. She is their (effectively) sole carer and has been for some time. In my view, her capacity to provide for the emotional needs of her children is severely compromised by her detestation of the father and the actions that it leads her to commit. I strongly suspect that, in the longer term, this will prove extremely damaging for the children, as Ms J’s evidence has suggested is likely. Nonetheless, the fact is that she is at least sufficiently able to look after them from day to day.
The father’s capacity to provide for the emotional needs and intellectual needs of his children is compromised self-evidently by his lack of insight.

Section 60CC(3)(g)

The children have become enmeshed with their mother and this is a characteristic that cannot be ignored. The father’s personality owes much to a lack of insight into his own personality, his behaviour and how it would impact or seem to third parties, including the mother and the children. While arguably these matters do not fit entirely comfortably within the verbiage of sub-s.60CC(3)(g), they are plainly relevant and indeed very relevant matters.

Section 60CC(3)(h)

This is irrelevant.

Section 60CC(3)(i)

The mother’s attitude to the children is essentially a reflection of her own emotions about the father. This is as unfortunate as it is regrettable. The father’s attitude to the children is most marked by his astounding lack of insight. While his responses at one level are understandable, they show he is simply unable to appreciate that the dreadful situation that now obtains owes much to his own overloud, over-aggressive personality.

Section 60CC(3)(j)

Family violence is, of course, of its nature a very important matter but in the circumstances of this case, it has already been dealt with sufficiently above.

Section 60CC(3)(k)

Unless I misunderstand the matter, there are no family violence orders presently applying.

Section 60CC(3)(l)

It is high time that this set of proceedings came to an end. The demeanour of the children when being interviewed by Ms J is concerning. The pressure the case is putting on them is all too easy to infer and the pressure that the proceedings put on the mother was palpable both in the materials generally and in her presentation before the Court. The nature of the findings I have made, most particularly about the children’s relationship with their father, require that this matter come to an end.

Section 60CC(3)(m)

Although it has already been stated more than once, the overriding feature of this case is the wholly fractured nature of the relationship between the children and the interrelated views of Ms J that any endeavour to make the children see the father will only make things worse.

Conclusion

Taking all these matters together, I regret to say that the outcome in this case is all too clear. It is clearly in the best interests of the children that the orders proposed by the Independent Children's Lawyer and supported by the mother be made. They will represent a devastating blow to Mr Ainsworth. Although I have been critical of him, I have also been critical of the mother, who has undoubtedly fomented the estrangement of the children from the father. However, it is one thing to try and apportion blame, but the reality of the situation simply cannot be ignored. As indicated, the orders proposed by the Independent Children's Lawyer will be made.
The paternal grandmother expressed a desire to see the children and, if I understood the matter correctly, the mother was not wholly opposed to this. Although Ms M expressed strong reservations about whether this would be desirable, none of the parties seem to me to have addressed this issue in terms in their submissions. I will give the parties an opportunity to consider this aspect of the matter before making my orders final.

I certify that the preceding one-hundred-and-seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 22 December 2015

[2015] FCCA 3322

22 December 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies