Baker and Baker

[2011] FamCA 638

FAMILY COURT OF AUSTRALIA

BAKER & BAKER [2011] FamCA 638

FAMILY LAW - CHILDREN - Best interests
FAMILY LAW - CHILDREN - Equal time
FAMILY LAW - CHILDREN - Substantial and significant time
FAMILY LAW - CHILDREN - Family violence - Risk
FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of child

Family Law Act 1975 (Cth)

APPLICANT: Mr Baker

RESPONDENT: Ms Baker

INDEPENDENT CHILDREN’S LAWYER: Wayne Dunstan

FILE NUMBER: MLC 5162 of 2009

DATE DELIVERED: 15 August 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 16 March 2011, 26, 27, 28 July 2011, 1, 2 & 3 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Testart

SOLICITOR FOR THE APPLICANT: Alderuccio Solicitors

COUNSEL FOR THE RESPONDENT: Mr Allen

SOLICITOR FOR THE RESPONDENT: Hogg & Reid

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Maramis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates

Orders

BY CONSENT

1.That all previous parenting orders be discharged, save for the Airport Watch List order made 26 June 2009.

2.That the Wife have sole parental responsibility for the children of the marriage B born … July 2003 and C born … January 2007.

3.That the children live with the Wife.

4.That the children spend time and communicate with the Husband as follows -

DURING SCHOOL TERMS

(i)Each alternate week from the conclusion of school/kindergarten Thursday to the commencement of school/kindergarten Friday commencing 4 August 2011; and

(ii)Each alternate week from the conclusion of school/kindergarten Friday to the commencement of school/kindergarten Monday commencing 12 August 2011.

DURING TERM SCHOOL HOLIDAYS

(iii)In the year 2011 and each alternate year thereafter for the second week of each of the term school holidays, from 9:30am on the day being the mid-point (such mid-point to be calculated from after school on the last day of term) and concluding upon the commencement of school or kindergarten AND

in the year 2012 and each alternate year thereafter for the first week commencing from the conclusion of school until 9:30am the following Saturday; and

(iv)During such school holiday time weekend time will be suspended.

DURING CHRISTMAS SCHOOL HOLIDAYS

(v)Each alternate week during the Christmas school holidays in 2011/2012 with such time to commence at 12:00pm on the alternate Saturday and conclude 12:00pm on the following Saturday; and

(vi)For the years 2012/2013, 2013/2014 and 2014/2015, commencing 12:00pm Saturday in the first week of the school holidays for two consecutive weeks on a two week about basis; and

(vii)For the year 2015/2016 summer school holidays and each alternate year thereafter commencing at 12:00pm Saturday on the first week of the school holidays and concluding 12:00pm on the middle day of the holidays; and

(viii)For the year 2016/2017 summer school holidays and each alternate year thereafter commencing at 12:00pm on the middle day of the holidays; and

(ix)During such Christmas school holidays weekend time shall be suspended and the Husband’s school term time with the children shall recommence upon the conclusion of the Christmas holidays as if such holidays had not intervened.

NEW YEARS EVE

(x)Each alternating New Years Eve beginning 2011 from 5:00pm New Years Eve to 5:00pm New Years Day and the wife to spend time with the children from New Years Eve 2012 and alternating thereafter from 5:00pm New Years Eve to 5:00pm New Years Day.

RELIGION 1 CHRISTMAS

(xi)Each alternate Christmas, from 5:00pm Christmas Eve until 2:00pm Christmas day and each alternate year thereafter commencing 2012; and

(xii)Each alternate Christmas, from 2:00pm Christmas day until 5:00pm the day following Christmas day and each alternate year thereafter commencing 2013; and

(xiii)In the event that in 2011 and each alternate year thereafter, Christmas falls during the Husband’s time with the children such time shall be suspended from 2:00pm Christmas day until 5:00pm the following day; and

(xiv)In the event that in 2012 and each alternate year thereafter, Christmas falls during the Husband’s time with the children, such time shall be suspended from 5:00pm Christmas eve until 2:00pm Christmas day.

RELIGION 1 EASTER

(xv)Each alternate year from 9:00am Good Friday until 2:00pm Easter Sunday commencing 2013; and

(xvi)Each alternate year from 2:00pm Easter Sunday until the start of school on Monday and if Monday is a non school day then 9:00am Tuesday commencing 2012.

CHILDREN’S BIRTHDAYS AND PARENT’S BIRTHDAYS

(xvii)During each of the Husband’s birthday and the children’s birthdays the Husband communicate with the children by telephone between the hours of 7:30am and 8:30am.

(xviii)In the event that the Wife’s birthday falls during the Husband’s time with the children, the Wife be permitted to telephone the children between the hours of 7:30am and 8:30am.

(xix)In the event that the children’s birthdays fall during the Husband’s time, the Wife be permitted to telephone the children between the hours of 7:30am and 8:30am.  

FATHER’S DAY

(xx)In the event Father’s Day does not fall on the weekend the Husband would otherwise have the children then the Husband’s weekend be swapped to enable him to have the Father’s Day weekend and he shall forego the next weekend due to him.

MOTHER’S DAY

(xxi)In the event that Mother’s Day does not fall on the weekend the Wife would otherwise have the children then the Wife’s weekend be swapped to enable her to have the Mother’s Day weekend and she shall forego the next weekend due to her; or

(xxii)As otherwise agreed between the parties.

NOT BY CONSENT

5.(i) Commencing 4 August 2011 until 4 February 2012, one or more of the Husband’s parents, his sister Ms S, and/or his brother, Mr Z shall supervise the Husband’s time with the children; and

(ii)  Commencing 4 February 2012 until 4 August 2012, the Husband’s parents, his sister Ms S, and/or his brother, Mr Z shall be in substantial attendance during the Husband’s time with the children.

NOT BY CONSENT

6.Commencing 5 August 2012, the Husband’s time with the children is to become unsupervised.

BY CONSENT

7.(i)   The Husband and Wife may communicate with the children by telephone, each Tuesday and Thursday between 6:00pm and 6:30pm when the children are not otherwise in their respective care pursuant to these orders and the Wife be entitled to call the children on Saturday nights between 6:00pm and 7:00pm whilst they are in the Husband’s care; and

(ii) That each party will facilitate the children making telephone calls to the other parent if they request to do so.

8.   For the purposes of changeover -

(i)During school term all changeover is to take place at the children’s school/ kindergarten; and

(ii)During school holidays/special days and other occasions when changeover cannot take place at school, changeover shall take place at McDonald’s Melbourne Suburb 1 or the nearest McDonalds to the children’s’ residence; and

(iii)The Husband and the Wife be at liberty to attend changeover by a nominee.

9.   The Husband and the Wife -

(i)Keep the other advised of telephone numbers at all times; and

(ii)Keep the other advised of any change of residential address 28 days prior to any such change; and

(iii)Advise the other immediately in the event that the children, or either of them, suffer any serious illness or injury; and

(iv)Authorise any medical practitioner upon whom the children or either of them, may attend from time to time, to communicate with the other in respect to the children’s’ medical condition and/or requirements; and

(v)The Wife nominate a general practitioner for the children’s’ care within 7 days hereof, and the Husband and Wife save for emergencies, use such medical facility whenever the children require such medical attention; and

(vi)The Wife advise the Husband of all sporting and extra curricular activities in which the children, or either of them are involved, and the Husband shall ensure he takes the children to such extra curricular activities during the time the children are in his care pursuant to these orders.

10.That the Wife authorise the Proper Officer of the school/kindergarten to which the children, or either of them, might attend from time to time to  provide to the Husband  at the Husband’s expense, if any, copies of all school reports, notices, newsletters, memoranda, order forms for school photographs and other like publications ordinarily provided to parents AND permit the attendance of the Husband at the properly scheduled Parent/Teacher Interviews but the Husband must ensure that he is not in attendance at such interview during any period that the Wife or the children or any of them are in attendance at the school.

11.The Wife, her servants and agents be and are hereby restrained by injunction from -

(i)Abusing, insulting, belittling, rebuking or otherwise denigrating the Husband or any member of his household or family in the presence or hearing of the children or either of them or from permitting any other person to do so; and/or

(ii)Using physical discipline on the children or either of them.

12.The Husband, his servants and agents be and are hereby restrained by   injunction from -

(i)Abusing, insulting, belittling, rebuking or otherwise denigrating the Wife or any member of her household or family in the presence or hearing of the children or either of them or from permitting any other person to do so; and/or

(ii)Telephoning the Wife other than as provided for herein, save for an emergency concerning the children, or either of them; and/or

(iii)Using physical discipline on the children or either of them.

13.For 24 hours immediately prior to the children spending time with the Husband and during all such time, the Husband be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of any legal or illegal drug or substance, including alcohol, save and except for -

(i)Any legal medication prescribed by a registered medical practitioner and taken or used by the Husband strictly in accordance with such prescription; and/or

(ii)Any over the counter legal medication or pharmaceutical  substance ordinarily sold in major supermarkets, or taken by the Husband strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

14.The Husband shall undertake supervised drug screen testing (“the testing”) as follows -

(i)The testing shall be by way of “hair analysis” as conducted from time to time by the Victorian Institute of Forensic Medicine - Division of Forensic and Sciences  (“VIFM”), or such other properly qualified and accredited institute as may be approved by the ICL (if appointed) or by the Wife (if an ICL not be appointed); and

(ii)The Husband shall comply with the “ Hair Collection Procedure” set out in “Document ID 16: 0159: 3.0” dated 1 May 2008 issued by VIFM, or any equivalent updated document concerning hair collection procedures issued from time to time by VIFM; and

(iii)The hair testing shall take place no less than three-monthly, commencing from the date of these orders; and

(iv)For the purposes of sub-paragraphs 14(ii) and 14(iii) hereof, the Husband shall attend at a general medical practitioner or a pathologist, who shall be authorised to collect, and supervise and implement the required protocols for, the collection of such hair samples; and

(v)The Husband shall produce the results of such hair analysis to the Wife as soon as possible after they are available; and

(vi)The Husband be and is hereby restrained by injunction from doing any act or thing which may render the testing to be unreliable or unfeasible, and without derogating from the generality of the foregoing, he shall maintain his hair at no less than the minimum length required for the collection of hair samples as required by VIFM.

15.The Husband and the Wife by themselves their servants and agents be restrained by injunction from discussing the family law proceedings/intervention order proceedings and/or any related proceedings with the children or in the presence or hearing of the children.

16.That the children will sleep in a room separate from the adults.

17.That the parties shall maintain a communication book which shall include updates in relation to the children’s’ routine and general information in relation to matters involving the children.

18.That the Husband ensure that the children are not exposed to any pornographic material during his time.     

19.The Husband shall continue to attend upon Dr K and shall seek and obtain such treatment, and comply with such lawful directions ( including as to compliance with the taking of such medications as she may from time to time prescribe) as she may give to the Husband and shall authorise Dr K to give such information as to his treatment and progress to the Wife (at the Wife’s expense) as Dr K shall deem appropriate and authorise Dr K to discuss with the Wife the current state of the Husband’s condition or prognosis AND the Husband and Wife to provide copies of their respective trial affidavits, a copy of the reasons for judgment as soon as they become available and a sealed copy of these Orders to Dr K. 

20.That the Husband and the Wife and the children attend upon Dr A psychiatrist no later than beginning of June 2012  for the preparation of a further report concerning the issue of the Husband’s time with the children, and any other matter upon which Dr A considers it appropriate in his professional opinion to comment upon and the costs of such attendance and report to be borne equally between the Husband and the Wife AND the Husband and Wife provide a copy of the reasons for judgment as soon as they become available and a sealed copy of these Orders to Dr A.

21.The Husband and the Wife each be at liberty to provide a copy of these Orders to any of the following -

(i)The principal or delegate of the principal of the school/kindergarten attended from time to time by the children, or either of them; and/or

(ii)Any medical practitioner and/or allied health professional attending upon the children, or either of them.

22.The Order of the Court appointing the Independent Children’s Lawyer be discharged.

23.Pursuant to Section 65DA(2) and Section 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 are set out in Annexure “A” and those particulars are included in these orders.

24.All applications in relation to parenting orders are otherwise dismissed.

25.Liberty to the parties to apply upon the receipt of Dr A’s report and on written notice to the other parties.

26.That my reasons for judgment shall be reserved and published without the need for the parties or their legal representatives to attend court.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5162 of 2009

Mr Baker

Applicant

And

Ms Baker

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1.When I heard this case, B had just turned eight.  C was 4½.  They lived with their mother and were seeing their father each alternate week-end between 9.30am Saturday and 5.00pm Sunday.  The time with their father was fully supervised by his family members. 

2.From the start of the hearing it was agreed that the boys would continue to live with their mother and spend time with their father. 

3.After an unsuccessful attempt at settlement during the first day of the hearing, the major issues then related to the allocation of parental responsibility, and how much longer the father’s time with the children needed to be supervised. 

4.On the third day of the hearing, the father conceded sole parental responsibility to the mother.  By the end of the evidence, the precise time regime and other details were also agreed.  The only outstanding question remained how much longer supervision would last.

5.At the end of the hearing, I accepted the proposal of the Independent Children’s Lawyer that the father’s family should supervise his time with the children for a further six months, and be in substantial attendance for another six months after that.

6.These are my Reasons.  I declined counsel for the father’s tempting suggestion that I could give just a brief extempore explanation for my decision.  Although the case had resolved to one issue, it took six days of court time to do so, the issue had complex considerations within it, and in my view the parties and others, including experts, needed and deserved a detailed analysis from which to work in the future.

7.In brief summary, the mother said that she had experienced a long history of the husband’s violence to her and to B, violence and hostility to her in front of the children, his on-going anger management problems and his use of pornography, illicit drugs and alcohol.  She also had some concerns about his possible sexual abuse of the boys.  Accordingly, she wanted the time that the father would spend with the children to be supervised, for the children’s safety, as well as her peace of mind.  Of all those concerns, she emphasised her main concern was for the children to be protected by family members if the father lost his temper when they were with him.

8.At the start of the case, the mother had proposed supervision for another 12 months, to be removed then if the father had a “clean” hair drug test, and if his treating psychiatrist effectively gave him a “clean bill of health”.  However, the evidence that led him to concede sole responsibility to her, relating to recent incidents that had further undermined her trust in him, caused her then to seek supervision indefinitely into the future.  By the end of the case, she simply sought supervision for the time considered by the Court to be appropriate.

9.The father conceded that during the marriage he was guilty of some violent behaviour towards the mother, isolated incidents of violence to B, some use of pornography, some misuse of drugs and alcohol, and on-going anger management issues.  He said though that the mother exaggerated her complaints about those issues. 

10.The father also said that as he had been able to admit where he had erred in the past, and had undertaken extensive anger management and other courses, as well as long-term counselling and medication, he was now able to be a good father and to take a full role in the children’s lives.  He proposed another three months supervision by his family members and then three months after that with his family in substantial attendance.  

11.As noted, the ICL proposed the paternal family’s supervision of the father’s time with the children to be continued for six months, with their substantial attendance for a further six months.  The ICL also proposed various safeguards, including a restriction on the father’s use of alcohol when with the children, hair testing for illicit drugs, a further report from the Family Report writer in about six months’ time, and access for the mother to talk with the father’s treating psychiatrist.  All these proposals were agreed by the parents.

12.It was also ultimately agreed that the orders should provide for the progression to unsupervised time, so that there was no requirement to return to court.  The parties however agreed on liberty to apply after receipt of the Family Report, so that if, for example, it raised concerns about an unsupervised regime of time with the father, a change to the orders could be considered.

13.It was also agreed that the Report writer, and the father’s treating psychiatrist, should both receive a copy of these Reasons.

BACKGROUND

14.The father was born in 1978.  He is aged 33 and came with his family to Australia from Country 1 when he was aged nine.  He is a consultant.  The mother was born in 1979.  She is now aged 31, and came to Australia from Country 1 when she was aged 20.  Her close family members also live in Australia.  She is engaged in home duties and does some casual work.

15.The father and mother married in 2002 and separated in 2009.  They also lived apart between January and July 2008. 

16.B was born in July 2006.  C was born in January 2007.  The children have always lived with their mother. 

17.The father started these proceedings in June 2009.  Initially orders were made for him to have supervised time with the children each Sunday afternoon.  Since June 2010 the current orders have been in place.

18.The mother had an intervention order against the father, valid until November 2011.  There was a previous intervention order in January 2008.  The current order was taken out in 2009 and extended in 2010.  It was expressed to be subject to orders of this Court.

19.At the time of hearing, there were breach proceedings pending, relating to alleged but disputed breaches in 2009 and 2010.  

MATERIAL RELIED UPON AND ORDERS SOUGHT

20.The father relied upon the following documents:

·His Outline of case filed 20 July 2011

·His initiating application filed 15 June 2009

·His trial affidavit filed 20 June 2011

·The affidavit of his treating psychiatrist Dr K filed 20 July 2011.

21.The mother relied upon the following documents:

·Her summary of argument filed 22 July 2011

·Her amended response filed 7 October 2009

·Her affidavit filed 22 July 2011

·The affidavit of her sister Ms G filed 22 July 2011

·The affidavit of her mother Ms R filed 22 July 2011.

22.The ICL relied upon:

·The outline of case filed 25 July 2011

·The two affidavits of Dr A, filed 7 October 2009 and 30 March 2011.

RELEVANT LEGAL PRINCIPLES

23.Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

24.Section 60B(2) sets out the principles underlying those objects.  They are that (except when it is or would be contrary to a children’s best interests):

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

25.There is a presumption that it is in children’s best interests for the parents to have equal shared parental responsibility (s 61DA).  The presumption relates to the allocation of parental responsibility.  It does not relate to the time children spend with each parent.  The presumption does not apply if there are reasonable grounds to believe a parent has abused the children or engaged in family violence, and if it does apply, it can be rebutted if the Court is satisfied it is not in the children’s best interests.  Ultimately in this case, sole parental responsibility was conceded to the mother.

26.In deciding a parenting order the best interests of the children is the paramount consideration (s 60CA).  Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the children’s best interests.  I will return to the detail below. 

27.Section 60CC(4) provides that the Court must consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the Court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).

THE ISSUES

28.The issues in this case can best be discussed within the framework of the s 60CC(2) and (3) considerations.

29.I will first consider the primary considerations under s 60CC (2).

(a)the benefit to the children of having a meaningful relationship with both of the children’s parents;

30.There was no dispute that these children needed a meaningful relationship with both of their parents.  Even with the mother’s concerns, and her emphasis on the need for family supervision of the father’s time with the children, she still supported a regime that would see the father spending each alternate week-end from Friday to Monday, overnight one night on the other week, substantial holiday time, and special occasions with them.  

31.To the mother’s credit, as well as the father’s, since separation, the boys have developed a meaningful, loving relationship with him.  They have also retained their strong primary attachment to their mother, who the father described as “a fantastic mother”.

(b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

32.The father admitted physical violence in the past.  The need to protect the children was a genuine consideration.  The need to protect them from psychological harm was also a genuine consideration, in light of some of the ways that he had – even recently – involved them in the conflict and in adult decision-making. 

33.Without losing sight of the fact that under the legislation this is a primary consideration – and very much at the heart of the mother’s view that only long-term supervision would adequately protect the children – it so overlapped with an analysis of the father’s parenting capacity that it is convenient to consider the detail under that heading below. 

34.I turn to the additional considerations.

(a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views;

35.The father said that B in particular asked at the end of each contact period if he could stay longer with him.  

36.The mother on the other hand described reluctance on B’s part, sometimes, about spending time with his father.  She referred to various complaints that the children had made, and that as recently as 17 July 2011, B had asked her whether he could return to seeing his father only between 9.00am and 6.00pm on Sunday.  According to her, the boys told her various things their father had said and done that concerned them.  She set those out in some detail in her trial affidavit. 

37.In September 2009, the Family Report writer, psychiatrist Dr A, observed the boys greeting their father warmly.  Although Dr A was critical of the father’s capacity at that point to respond to the children in an age-appropriate fashion, he noted that both boys nevertheless appeared to enjoy playing with their father, and that B enjoyed the physical interaction with his father.  At the end of the session B tried to prolong his time until the father said it was time to finish. 

38.In his 11 March 2011 report, Dr A said that B was “very positive” about the time he had spent with his father and said he would like more time with him.  He noted B as being aware that the decision is not up to him until he is older.  In fact, he refused to nominate any wishes to Dr A, but told him that the situation between his parents was “complicated”.    

39.Although the parents differed in their perspectives of the children’s attitude to spending time with their father, they may both have been telling the truth.  In light of the intense conflict between the parents, and the hostility which must have been very obvious to the children, it would not be surprising if B felt direct and/or indirect pressure to tell his father what he wanted to hear, and his mother what she wanted to hear.  B’s reference to “the situation” being “complicated”, when talking to Dr A, was probably a fair summary of how things looked from his point of view.  

40.Although Dr A only saw a brief snapshot of the relationship, the combination of B’s positive views, and his positive interaction with his father in front of him, suggested that B was enjoying his relationship with his father and that it was important to him.  C’s response, at 4½, was less easily gauged and there was little direct evidence about it.

41.The mother though did readily concede improvements in the father’s relationship with the children in the period since separation.  And she conceded that they should be spending reasonably substantial time with him, something I would not have expected if she had a genuine belief that the children were not coping, or were really unhappy about it.

42.The children are young.  Their views needed to be weighed in the mix, but could not provide the definitive answer in this case, particularly on the question of supervision.  No-one could be clear as to whether it was because of, or despite the present level of supervision that the children had settled into time with their father.

(b)the nature of the relationship of the children with:

(i)     each of the children’s parents; and

(ii)    other persons (including any grandparent or other relative of the children);

(f)the capacity of:

(i)     each of the children’s parents; and

(ii)    any other person (including any grandparent or other relative of the children);

to provide for the needs of the children, including emotional and intellectual needs:

(i)the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;

43.The mother had a number of serious concerns about the father’s parenting capacity.  The first revolved around his anger and violence.  She described his explosive and uncontrollable temper and violent behaviour from early in the marriage.  She described behaviours that were controlling and abusive, physically violent towards her, and physically violent towards B.  And she described his involvement of B in the conflict, and his lack of genuine insight into the impact of the violence and conflict on the children.

44.The father admitted incidents of physical violence and angry outbursts directed to the mother and to B in the course of the marriage, but his concessions were well short of the mother’s allegations. 

45.Although her account was not agreed in full by the father, it is important to at least understand the nature of the concerns expressed from her perspective.  By way of illustration, she described an incident when she was 12 weeks’ pregnant with B, when the father became furious because she had forgotten to buy some sugar.  When she refused his demand to return to the supermarket to purchase the sugar, she said that he became enraged and hit her with full force in the chest. 

46.She described an incident several months later, when she was still pregnant with B, when the father was angry and started to slap her in the face.  She said he was punching her in the chest and arms when her mother and sister intervened.  She said he hit her mother in an attempt to force her out of the way.  After he calmed down, the mother’s mother telephoned the father’s parents who came over.  According to her, the father’s father was extremely apologetic and asked them to forgive his son.

47.She described that the father frequently resorted to violence when he became angry and that sometimes he would hit her on the face with an open hand, at other times with an object.  She described him locking her in the house, taking the phone and cutting the land-line so that she could not call for help.  She described direct threats that he made that he would kill her or their son. 

48.She described an incident in 2004 when B was just an infant, when he accidentally dropped a piece of pizza onto the floor and “[the father] angrily slammed his hand down on top of [B’s].”  She described the child’s shock and startled crying.  She said that the father would hit B if he was “too noisy or disruptive”.  She recounted an incident in about 2007 when B interrupted his father on the phone and the father “slapped him in the face and told him to be quiet.”  She said she heard the slap and B was “crying uncontrollably”. 

49.The mother said that from time to time she went to spend time with her family to get away from the violence and abuse.  The couple separated for some months from early January 2008 after an incident where, during an argument in the car, she said he pulled the car over and started to slap her in the face with both hands.  The children were in the car.  She said that the police were called by other people and she and the children went to the Melbourne Suburb 2 Police Station.  A 12-month intervention order was taken out by the police two days later.  She and the children were all listed as aggrieved family members. 

50.Early in the hearing there was a great deal of cross-examination about precisely what did occur in the course of the relationship, and as far back as 2005.  Given that the father conceded what was on any view inappropriate violent behaviour to the mother, and to B, as well as an anger management problem, I raised with counsel the most effective use of court time, to ensure I could focus on the future welfare of the children.  I suggested that even if I accepted the violent behaviour at the lower level conceded by the father, it was “totally unacceptable”, very distressing to the mother and children, and a reasonable basis upon which the Court would hold concerns for the father’s capacity to care for the children and communicate with the mother.  It would also form a genuine basis for the mother to retain her anxiety about his capacity.  

51.I also proposed to counsel that the essential enquiry in this case was whether the degree of insight that the father had expressed, and the degree of change that he claimed he had made, were in fact supported by the evidence and by his own behaviour.  Counsel agreed.

52.The case then proceeded on the agreed basis that in the course of the relationship, the father’s behaviour had been unacceptable.  His unacceptable behaviour included violence towards the mother, violence towards her in front of B, violence towards B, verbally abusive fights – some of which occurred in front of B – and an anger management problem for which the father had sought long-term help. 

53.Accordingly, I did not hear further detailed evidence as to the extent of the father’s violence and abusive or threatening behaviour during the marriage, and cannot make a definitive finding as to whether it was as pervasive as described by the mother.

54.The mother had also consistently expressed other concerns about the father’s capacity to care for the children, alleging his misuse of alcohol and drugs, his use of pornography, and the possibility that there may have been some sexual abuse of the children in the father’s care in 2008 and 2010.

55.On-going concerns in relation to the father’s misuse of drugs and alcohol arose largely from his own dishonesty.  Having conceded their use in the past, he swore that he had not used drugs for a considerable period and had not abused alcohol.  That was untrue. 

56.Although he had returned negative drug screens, (with one exception that was properly explained), when confronted in the witness box with his treating psychiatrist’s notes of his admission that he had used ecstasy in 2009, the father had to admit that he had lied in his affidavit when he said that he had not.  He also had to concede that although he had not sworn to it, he had in fact been intoxicated at times since separation, albeit not when the children were in his care. 

57.His dishonesty on those topics was never going to enhance the mother’s trust of him.  I was satisfied though that there was no evidence that he had been drunk or affected by drugs in the presence of the children. 

58.Orders were again agreed between the parties that he would not drink in the children’s presence.  Similarly, orders were put in place for the hair testing the mother sought in relation to drugs, to give her peace of mind.

59.When the mother discovered the father viewing pornography in the course of the marriage, it caused enormous upset between them.  It was apparent that, culturally and/or religiously, this was an issue of some import.  He was quite evidently ashamed about it.  I did not hear any evidence that it was a continuing problem. 

60.Although the potential sexual abuse concern occupied some time of Dr A’s report, it occupied very little time in this hearing.  Mr Testart asked the mother some questions about it, as if it had been an issue previously created by her as an obstacle to the father’s time with the children.  It was not an area of cross-examination that was particularly fruitful given how narrow the issues in this case had become, and I made that clear to counsel.  Moreover, it was not something that had been emphasised in the hearing until then.  The father was not cross-examined about it.  Although the mother had raised the concerns at the time, based on a few ambiguous comments from the children, there was never much detail or any certainty as to what had occurred.  Her case was clearly that the major risk to the children in their father’s care was that he could lose control of his temper, and become aggressive with the children or in front of the children.

61.On any view, the father had been successfully building his relationship with his sons over the two years since this case started.  He needed to do so.  On his own admission, in the past, B had been the victim of his father’s violence and the victim of his father’s violence towards his mother.  He had experienced his father’s anger, and the turbulence of his parents’ relationship.  He had reason to be fearful around and distrustful of his father.  And C, only an infant when his parents separated, did not then have a strong attachment to his father.

62.It was also apparent from the expert evidence that at the time of the first Family Report by Dr A, in September 2009, the father’s parenting skills were seriously lacking.  He was not “child responsive” in his interaction with the children, and he was potentially intimidating because he was loudly spoken with them. 

63.In that September 2009 report, Dr A noted the father treating B with “something approaching adulation” as shown by his comment that he was “in love with [B] who is the king to him.” (Dr A’s underlining.)  Dr A also noted that the father’s idealisation of B may have been an important factor in his “angry, punitive response” when the child failed to live up to his unrealistic expectations.   

64.At the time of Dr A’s first report, the father still had great difficulty accepting that the marriage was over, and continued to harbour the hope that he and his wife might still reconcile in the future.  There were also on-going concerns about his controlling behaviour, his temper and his alcohol and drug misuse. 

65.In combination, the concerns persuaded Dr A to recommend only supervised time between the father and children at that point.  It had continued for nearly two years at the time of the hearing.

66.At the heart of this case was ultimately the one simple yet complex question, that is, whether the father had made the degree of change in his lifestyle and attitudes that he claimed, so that he had become capable of parenting the children without supervision.  Intertwined with that question was the issue of the mother’s capacity to trust him, and the need for her peace of mind in order to be the best parent she could be to the boys.

67.It was clear that the father had undertaken many courses and much therapy towards significant change in his life, and that he had made some positive changes by the time of this hearing. 

68.During the marriage, angry and/or violent outbursts towards the wife prompted him to undertake an anger management course as early as 2005, although that first course was interrupted when the family went to Country 1.  When the mother and children moved out in 2008, the father made efforts towards a reconciliation by undertaking further courses and therapy.  He consulted a Dr T, psychiatrist, in January 2008, over four sessions.  Dr T prescribed Lexapro and the father has continued on that medication since then.  He started psychotherapy with Dr S at around that time.  He undertook eight sessions with a Dr D at Organisation 1. 

69.In the first half of 2008, the father undertook three different courses in relation to topics including, manhood, parenting, dealing with strong emotions, anger, and family relationships.

70.I accept the mother’s evidence that her husband’s various courses and therapies were accompanied by promises that he would have help with his anger, and that his behaviour would improve.  Her hopes were dashed each time.

71.Since August 2009, the father had been consulting a psychiatrist, Dr K. 

72.In the latter part of 2009, he undertook a course, directed towards recognising the physical and mental changes around anger.  During 2010, he undertook a course concentrating on problems and how to cope with them.  Both courses were at the Melbourne Suburb 3 Community Health Centre.  He was recently offered a third phase of the course work, but this trial interrupted that opportunity.

73.The fact that the father was able to admit wrong-doings, seek help, stay on medication, and make changes, was to his credit, and was a positive consideration in terms of his parenting capacity and the children’s well-being in his care. 

74.Although they modified their views in oral evidence, in their written reports, his treating psychiatrist, Dr K, and the Family Report writer, Dr A both made very positive comments about the father’s improvements.

75.In her first report in February 2010, Dr K noted that the father came across as a genuinely caring father, yearning to be able to spend more time with his sons.  She did not believe there was any indication that the children would experience any harm under his care.  She referred to him making good choices, both physically and emotionally.  She referred to his anxiety surrounding legal matters, but noted that he was receiving support through therapy, and a men’s behaviour change program, so that she was able to recommend unsupervised time with his children. 

76.In her second report in July 2011, a very short report, Dr K noted that she had seen the father about 43 times since 17 February 2010.  She noted too that she had read Dr A’s March 2011 report, and agreed with it and with the recommendation that the parents should continue to have equal shared responsibility for the children.  She said that the father was apparently concerned about his sons’ well-being, and was keen to be a good father.  He had been consistently motivated to improve his personal attributes and parenting skills. 

77.Although in evidence Dr K had to concede she had never met the mother or children, heard their side of the story, or observed the children with the father, she had written in the second report that she had no concerns about the father having unsupervised time with the children.  She believed it was crucial to improving and reinforcing the relationship that he had with them.  She also noted the father as being better able to manage his anxiety relating to the loss of the marital relationship, and other aspects of life, and that he continued to make good choices and to improve and consolidate his parenting skills and life skills through therapy.

78.As noted, in his first report in September 2009, Dr A’s concerns about the father’s capacity to parent the children were such that he recommended only supervised time, and on-going psychiatric treatment for him.   

79.In his second report, in March 2011, Dr A changed his recommendation, suggesting to phase into unsupervised time between the father and children.  He noted that “[the father] appears to have made a number of important changes” and that he claimed to have controlled his misuse of alcohol and other substances.  Dr A noted that the father had participated in a men’s behaviour change program, with apparent benefit, as well as a post-separation parenting course.  Dr A said that the father acknowledged the benefits of those programs, and that they had helped him develop a greater understanding of his previous behaviour and attitudes towards his wife and children.  He observed the father interacting with the children in a much more age-appropriate and child-focussed way. 

80.Dr A noted that the father had said that his faith and his therapy had helped him to stop using pornography.  He continued to consult Dr K, and was compliant with her treatment recommendations.  His medication was assisting his improvement in mood, and he was continuing to seek therapy. 

81.Dr A noted:

Finally, my own observation of [the father] suggests that he has made significant changes over the past 18 months.  He seems more prepared to take responsibility for his own behaviour.  He also appears to have finally accepted that his marriage is over and that he bears considerable responsibility for this …

82.Dr A reported that the mother continued to express significant doubts about the changes that the father claimed to have made.  I am satisfied that her doubts were understandable.  They were based on her long-term negative experiences of his violent and abusive behaviour, repeated failed promises to improve, and since then, on more recent experience.

83.In her trial affidavit, the mother referred to her observations of and involvement with the father over the last two years as having left her still with significant concerns about whether he had really addressed his underlying issues.  She swore that his behaviour towards her and her family in the presence of the children had continued to cause her grave concerns about his ability to properly parent the children unsupervised.  

84.She referred to various telephone conversations between March and May 2011, and an incident at change-over in March 2011, when she said the father was pressuring her about financial matters.  She said that at the March 2011 change-over, he was threatening and abusive, effectively standing in the car door-way yelling and not permitting her to leave.  She said that she reminded him about the intervention order and he stopped, but prior to that had “completely lost control of his anger and was not acting rationally.” 

85.The father denied such abusive phone calls or behaviour at change-over.  I cannot make a definitive finding.  I did not hear detailed evidence.  That was because counsel agreed that there was in any event sufficient evidence about the father’s inappropriate behaviour in the course of several specific incidents in May 2011, particularly from his own concessions. 

86.His evidence persuaded me that despite all the courses, the genuine changes and improvements in lifestyle, the medication, and the long-term counselling –whilst he had made considerable progress – he still had not progressed to a level where his insight about his behaviours genuinely matched the promises he had learned to make, and the correct words and concessions that he had leaned to express. 

87.First, there was an incident on the recent Mother's Day week-end.  Mother's Day fell on a week-end when the children were due to be with their father.  Negotiations for the children to spend the day with their mother, and to have subsequent make-up time with their father, were conducted between the parents, and between lawyers, in the course of several weeks.  The issue was only finally resolved with the help of a priest at the parents’ church.  It was agreed the children would return to their mother on the evening of Saturday May 7, the day before Mother's Day, and the father would have a day with the children the following week-end.  It had clearly been a hard to come by agreement.

88.What actually occurred on Saturday 7 May was a debacle, and a debacle entirely of the father’s making.  Shortly before he was due to return the children to the mother, according to the father, B said that he wanted to stay longer with him.  Rather than a gentle but firm response to his 7-year-old son about maintaining the arrangements, the father had B telephone his mother to request to change them.  Unsurprisingly, the mother did not agree.  Also unsurprisingly, the upshot was conflict between the parents and upset for B.

89.I made it clear to the father when he gave his evidence about that incident that his behaviour was inappropriate.  It was likely to provoke conflict, cause anxiety in the mother, undermine her position with B, and worst, likely to promote the child into a position of power that he should never have.  The father claimed both insight and contrition. 

90.I was concerned that his insight and contrition were very late in the piece and somewhat feeble.  It was apparent that he well knew, from all the various courses he had undertaken, as well as the extensive therapy, that he should not involve the children in the adult issues.  According to Dr K, they had discussed that quite specifically.  Still, he knowingly threw B right into the middle of an area fertile for heated dispute.   

91.He admitted that he probably used the opportunity to try to spend more time with his son, because that is what his son had wanted.  That showed a continuing confusion as to the parental role.  Moreover, it fed directly into the mother’s long-held anxieties that the father could not and would not parent co-operatively, and that he was abusive and disrespectful towards her.  I was particularly concerned that at one point in a great deal of evidence on this topic, he appeared to be criticising the mother for making the drop-off arrangements so difficult.  I was left with the impression that at least some of the insight that he had previously professed to his own doctor and Dr A, was not genuine.  Nor was the insight that he claimed in the witness box. 

92.The next troubling incident occurred on the week-end of 21 and 22 May 2011.  The parents’ accounts differ as to some aspects. 

93.The short version of what occurred was as follows.  When the father went to collect the children, the mother was not there.  He was clearly put out that the maternal grandmother and aunt were present, but the mother was not.  Although the court orders provided for the parents or a “nominee” to collect and/or deliver the children, he said he believed that it had to be the mother. 

94.He said that he became concerned when B complained that his mother had left them at the aunt’s home and had not returned overnight, and that the children did not know where she was.  He was particularly upset, he said, because C smelt of urine, although he was cleanly dressed.  He believed that the children had not been properly looked after. 

95.When he got the children home, he rang the maternal grandmother.  He agreed that he was “angry” in the course of the call but he was “not in a rage”.  He said he received many phone calls from the mother, and he made it clear to her and to the children that he would not return them unless she was present at the handover the next day.  He took the children to the handover point.  The mother was not present.  He refused to hand them over to the maternal grandmother and aunt.

96.The father said that he received many calls from the mother while he was in the car with the children, on the way to the handover on 22 May 2011.  He said that he was using a headset so the children could not have heard what their mother was saying.  Certainly though they would have been able to hear what he was saying.  Certainly too they would have been well aware of the conflict, and again he specifically involved B, telling him that if his mother was not present at the changeover he would not hand him over.  Instead, they would go home together and play Wii.

97.Back at his parents’ home, the maternal grandmother and aunt were outside discussing with him the return of the children.  B came in and out of the conversation, and at times was upset.  The maternal family called the police.  They attended.  The father relented about the return of the children. 

98.The father conceded that on the night of 21 May 2011, he went to the police station to complain about the mother’s absence and her lack of proper care of the children.  The police did not want to become involved and advised him to comply with Family Court orders. 

99.On the mother and maternal family’s accounts, there was considerably more hostility, aggression, and abusive and threatening behaviour by the father.  It was not explored in detail, again on the basis that even his own concessions were sufficient to alarm the mother about his angry and unreasonable behaviour, to further undermine her trust in him, and to raise the same concerns for the Court.

100.In fact, the mother was in Country 1 that week-end.  She had just left on a very short trip, in order to attend to various family business matters, and to see a close family friend who was seriously unwell, a man who had been like a father to her after her own father had died.  No-one could disagree that she had every right to travel to Country 1. 

101.The mother was criticised by the father for failing to tell him of the trip.  Dr A agreed that she should have done so.  There was no question that, all things being equal, she should have let the father know that she would be out of the country for that two weeks.  I assessed her behaviour however against the backdrop of the recent Mother's Day events.  She had every reason to fear a controlling and/or abusive reaction. 

102.What was absolutely clear – and the father could not dispute it – was that the mother would have made proper arrangements for the children.  He had to concede that the children had a close and loving relationship with the maternal family, just as they did with his own family.  He had to concede that the mother would always make appropriate arrangements for their care.  He had to concede that there was no good basis to be reporting the mother to the police except, as he said in response to a question from me, “more or less” to cause trouble.  He had to concede, as he did in relation to Mother's Day, that his behaviour was wrong and unreasonable in refusing to return the children, and in particular, in involving B in the conflict.

103.As noted, the husband’s treating psychiatrist, and Dr A, both modified their views once the May incidents were described to them. 

104.Dr K, who had already emphasised that she based her views on what the husband had told her, said that “to some extent” she had not been given all the details of recent events, and that “to some extent” that impacted on her recommendations.  Although her view had been that the father was a loving, committed father who understood the need to avoid conflict, and that he had made enormous progress, she said she would “use a lot more caution” in relation to her recommendations, and would share the Court’s concern that the father had not demonstrated a good understanding of how those situations should have been handled.  She agreed it was reasonable for the mother to be concerned.

105.Dr K emphasised the long-term work that the father still required.  She agreed with counsel for the ICL that he had “an awful lot more” work to do in order to achieve behavioural change, particularly in relation to his anger, and in terms of parenting issues – to understand the children’s emotional needs.  The need not to involve the children was something that she had specifically discussed with him before then.   

106.Dr K spoke of the father’s anxiety being one of the significant issues for him.  She described it primarily as “situational anxiety”.  She said he would have been anxious about this pending court case.  She spoke too of the need for him to move on from the relationship, and that once he could do that it would be his best opportunity to conquer the anxiety.  That said, as recently as around March or April 2011, in therapy with her, he was still referring to a hope for reconciliation, which suggested that despite his claims, he had still not moved on. 

107.Like Dr K, Dr A was critical of the father’s handling of the events set out above.  Dr A was concerned that the father was still attempting to control the mother, and was still not showing the requisite insight into the need to leave the children out of the conflict.  Above all though, Dr A was concerned that the father was still not successfully regulating his own emotions and taking responsibility, so much as continuing to rely on external forces or excuses in relation to his behaviour. 

108.In Dr A’s opinion, his behaviour would inevitably undermine the mother’s trust, and raised questions as to the degree of progress that he had made.  Dr A said there had been at least some regression in how he managed his behaviour, and that there were grounds for concern.  Dr A said that it was necessary to be more cautious than he had previously been, and that there should be short to medium term supervision and/or substantial attendance by paternal family members when the children are with the father.  He said by short term he meant days to weeks, and by medium term, he meant weeks to months.

109.Dr A was particularly concerned about the father having lied to the Court about his use of ecstasy.  He was also concerned that he had continued to drink.  Dr A emphasised that when the stakes were so high, in terms of time and a relationship with his children, he would have hoped that the father would have been able to control himself without drinking and without taking drugs. 

110.I was able to conclude that the father had made enormous efforts to change his lifestyle and his behaviour.  However, he was still contending with deep-seated behaviours and attitudes.  A full degree of progress was yet to be reached. 

111.At the same time, it was essential to recall that in the years since separation, whatever conflict there had been between the parents, and whatever obvious mistakes the father had made, he had succeeded in steadily building an overall loving and trusting relationship with the children, without violence or aggression towards them. 

(c)the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent;

112.Each parent had some limitations in this regard.

113.Although enormous credit was due to the mother, for enabling the children the emotional freedom to form a healthy relationship with their father after a very difficult start, I was satisfied that wittingly or unwittingly, she had still allowed B to have more knowledge and involvement than he should at his age.  He reported to his mother about his father’s drinking.  He spoke to his father about “sharing his money” with them so that he could stay enrolled at his current school.  It was clear that in his mother’s care, one way or another, B had been exposed to adult discussions when he should not have been. 

114.So far as the father was concerned, the disrespectful way that he had acted towards the mother, in using B to try to change the Mother's Day arrangements, or in refusing to return the children on the week-end of 21 and 22 May, or in reporting the mother to the police that week-end when there was no objective reason to do so, also suggested that he had his limitations in facilitating the children’s close relationship with their mother.

115.Each parent must know that the children will never thank them for any interference in their relationship with the other parent. 

(d)the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

(i)     either of his or her parents; or

(ii)    any other children, or other person (including any grandparent or other relative of the children), with whom he or she has been living;

116.These children were very close to the family members on both sides.  Each parent was a part of loving extended families.  It was to the children’s benefit that they had a close and secure relationship with grandparents, aunts, uncles and cousins on both sides. 

117.There was some conjecture in the evidence as to whether the children had formed the happy relationship with their father because they felt secure and supported by the supervised time, or despite that.  What was apparent was that, regardless of how the orders were to be structured, the father proposed continuing to live at his parents’ home for some time, and to have the children stay there overnight, even when he moved out.  He expressed the desire to move and set up an independent home at some point.  But in his view, as his parents’ home had been a consistent and stable setting for the children, he proposed to continue overnight time with them there.  It meant that in terms of routine, the children would experience little change.

118.A substantial change for the children was the change in the orders that would see the father collect them from school on a Friday, and deliver them back to school on a Monday.  That was a change very much to the children’s benefit.  There appeared to be a consensus about that, including from the Family Report writer, as a sound way to minimise the contact between parents, and minimise the conflict in front of the children.

(e)the practical difficulty and expense of a children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis;

119.In some cases where supervision is being considered, this factor is very much to the fore.  In this case it was not.  By agreement, any supervision would be conducted by paternal family members.  It would thus involve no expense nor for the most part, any practical difficulty, except for occasional inconvenience if the father wanted to go out with the children at a time unsuitable to any of his close family members.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant;

120.Except that it was important for the children to have a relationship with their father and his family, and that the religious values of the two sides of the family were compatible and considered important, this was not a separate factor that was emphasised. 

(j)any family violence involving the children or a member of the children’s family;

(k)any family violence order that applies to the children or a member of the children’s family, if:

(i)     the order is a final order; or

(ii)    the making of the order was contested by a person;

121.I have considered this issue above, as relevant to the limited issue before me.  There was a current intervention order.  The evidence was that it would be in existence until November 2011, and was expressed to be subject to Family Court orders.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children;

122.As noted, the orders were structured so that they presumed there would be no return to court.  Although there was leave to return the case to Court after Dr A’s next report, the hope was that the father would continue to progress in his development, and to understand how very high the stakes would be for him if he transgressed in ways similar to the recent or past transgressions.  As Dr A made clear, once a court needs to consider very long-term supervision, the question becomes whether there should be any contact at all.  That would have to be a prominent consideration should there be on-going unacceptable behaviour on the father’s part.

CONCLUSION

123.These children are still very young.  Despite a turbulent and very difficult early childhood, they had managed to establish a relationship with their father.  It had been in the context of a caring and supportive environment supervised by the paternal family members. 

124.The father naturally wanted to stop supervision as soon as possible.  From his perspective, it was simply more normal to see his children without that restraint.  From his perspective, it was healthier for the children not to have any sense that there was a need for supervision.  And, occasionally it had proven inconvenient, if no close family member was available to go on a brief outing with him and the children.

125.From the mother’s perspective, she simply was struggling in terms of her trust of the father, and was concerned for the children’s well-being if he lost his temper with them.

126.Both experts had believed that immediate unsupervised time was appropriate.  In that respect, I placed greater weight on Dr A’s opinion as he saw all parties involved, and saw the children with the father. 

127.Although each of the experts was more concerned after they had heard of the recent events, each still raised legitimate questions about the use of supervision.  Dr K questioned what it was designed to achieve.  That was not an unreasonable question, when the substantial recent concern in May had been about the father’s lack of insight, and his involving of the children in the conflict, both of which occurred in the context of supervision in any event.  It was not any violence or aggression to the children.

128.Dr A, persuaded that a more cautious approach was needed than he had thought at the time of his written report, still only recommended supervision for weeks or months, rather than years.  He made the valid point that if the Court was concerned that there must be very long-term supervision, it begged the question of whether there should be any contact at all.  He also clearly favoured substantial attendance more than supervision as such, so that the children could have the normality of moving around with their father, but the mother could have the reassurance that his responsible and loving family members would be around.

129.Although it was difficult to strike the right time-frame with precision, it was made easier in this case in the sense that on any view the father’s close relatives would remain integrally involved with the children during his time with them.  I was satisfied that the ICL’s proposal struck a reasonable balance, taking into account the mother’s views and the caution expressed by the experts.  A further period of six months of full supervision would largely cover the conclusion of financial dealings between the parties with the sale of their property, as well as the outstanding intervention order breach proceedings.  It would enable the hair-testing to be conducted.  It would also enable the father’s therapy with Dr K to continue, enhanced by the mother relating her concerns to the psychiatrist, and Dr K’s access to these Reasons for Judgment.

130.A further six months of “substantial attendance” was then a reasonable way to ease not only the children, but also the mother, into the next phase of the father’s time with the boys. 

131.That regime, combined with the safe-guards built in by the ICL, including Dr A’s further report, satisfied me that the proposal was one that would promote the children’s best interests. 

132.The single most important factor for the children’s well-being is for their father to not only continue with the help he has sought, but to frankly admit to himself where he still genuinely needs to improve, and to demonstrate with his behaviour that he has moved on from the relationship with the mother, to enjoy a healthy, happy and calm relationship with the children, without involving them in family conflict.  That in turn will enable the mother’s trust to grow.  For her part, she must also ensure that the children are free of adult concerns and kept out of discussions about parenting or financial matters.

I certify that the preceding one hundred & thirty two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 15 august 2011.

Associate: 

Date:  15 August 2011