Bale-Sutch and Bale-Sutch (No 2)

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH (NO. 2)

[2010] FamCA 20

FAMILY LAW – CHILDREN – Parenting order – Discharge existing contact orders on the basis of husband’s behaviour creating fear in the children – Best interests of the children that there be no contact – Because of husband’s attitude, order made that he not make any further application without leave of a judge of the Family Court of Australia

Family Law Act 1975 (Cth)

Johnson v Johnson (2000) 201 CLR 488

APPLICANT:

Mr Bale-Sutch

RESPONDENT:

Ms Bale-Sutch

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

3800

2007

DATE DELIVERED:

22 January 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

1 and 2 October 2009; 15 and 18 January 2010

REPRESENTATION

THE APPLICANT:

IN PERSON

COUNSEL FOR THE RESPONDENT:

MR BARBAYANNIS

SOLICITOR FOR THE RESPONDENT:

WISEWOULD MAHONY LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

DAVID STAGG TONKIN & CO

Orders

That paragraphs 5, 8, 9, 10, 11, 12, 19, 20 and 25 of the orders made 18 February 2009 are discharged.
That the wife have sole parental responsibility for the children S and R.
That the husband’s application that the wife attend upon and undergo a psychological assessment is dismissed.
That the husband be restrained from attending at the children’s school or any of the school or extra-curricular activities of the children without written agreement from the wife or order.
That the husband be restrained from making any application under Part VII of the Family Law Act 1975 (Cth) to any court having jurisdiction under the Act without leave of a judge of the Family Court of Australia.
That the wife by letter (or email if the husband provides an email address) provide to the husband the following details:
(a)immediately after any appointment with a doctor (other than for non-serious common childhood illness) details of any serious illness or any injury which requires surgery or suturing;
(b)after the end of each school term, the children’s school reports; and
(c)if any letter or report is provided to the wife by a counsellor pr psychologist upon whom the children attend, a copy of that material.
For the purposes of paragraph (6), the wife shall provide the details as soon as practicable after she attends upon the doctor, receives the school report or receives the counsellor/psychologist’s letter.
That the husband be permitted to communicate with the children by cards, letters and presents sent to the wife’s address.
That the wife is required to provide to the children all such communications as are received by her.
That the Independent Children’s Lawyer be discharged after he communicates the details of these orders in age-appropriate language.
That subject to any direction to the contrary of the school principal, the husband be entitled to request and receive copies of any school newsletters and school progress reports.
That a copy of the reasons for judgment this day be provided by the Independent Children’s Lawyer to the principal of the children’s school(s) and such principal(s) may advise all relevant teachers and persons otherwise responsible for the welfare or care of the children of the details of the Court’s orders and findings.
That to the extent that the husband feels it necessary to make any application to a Body he describes as the “Human Rights Commission”, he may provide to them for the purposes of any application, copies of the orders of this Court, any reasons for judgment and his affidavit material but no more.
That all extant applications be otherwise dismissed.
That any material produced under subpoena, be appropriately forthwith returned.
That pursuant to s.65DA(2) and s.62B, 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Should any party seek orders for costs, they do so by written application supported by a written submission to be filed and served by 4.00pm on 3 February 2010 any reply thereto be filed and served by 4.00pm on 17 February 2010 and that the matter be otherwise determined on the submissions in chambers.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3800 of 2007

MR BALE-SUTCH

Applicant

And

MS BALE-SUTCH

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

On 18 February 2009, I made final parenting orders for S born in December 1997 and R born in February 2000.
The orders did not work and the parties were back before the Court in less than six months.
Despite what the husband would say to the contrary, because of the suspension of the February orders after an interim hearing, the final hearing was expedited.
In the February orders, my approach was an endeavour to establish the foundation for a sound father and sons’ relationship by a stepped and supervised arrangement. That approach went wrong because of a dispute about the February 2009 orders.
In July 2009, the husband took matters into his own hands and an incident occurred at the school of the children in which he forcibly took S from the school grounds across the road to a bus stop. Notwithstanding his protestations that he was legally entitled to do what he did, I find first that he was not. Secondly, the husband showed no insight into his own aggressive behaviour which set the children against him and that creates an almost impenetrable barrier to ongoing relationships at this time.
Least it be thought that the July 2009 incident was the only one that derailed the attempts designed by the February 2009 orders, I find that there were a number of matters troubling the two children before that which, when added together, meant that what was anticipated in the February orders would most likely have not worked anyway.
By the orders I now make, there is no alternate on the evidence which would enable me to avoid suspending the children’s time with their father.
The children may be happy about a suspension of time and content to go on with the lives that their mother has arranged for them but there is no doubt that they are entitled to a meaningful relationship with their father and may ultimately feel a sense of loss by not having it. The Court cannot manufacture a meaningful relationship between parents and children nor make parents what they are not. The husband said in evidence that no-one had the right to tell him how to parent his children. Sadly, he is wrong. Unsatisfactory though it may seem, I find that the suspension of the existing relationships with the father is in the best interests of these children.
The husband strongly argues and articulates that the cause of the breakdown of his relationship with his children is the wife, the family consultant Mr V, the Ringwood Magistrates Court, various police officers and eventually, this Court. He blames the school system for the problems he has encountered and members of the police force for causing him anguish. Such is his driving force to point the finger at everyone else that he seems never to have contemplated his own inadequacies. Whether he really means what he says or cannot control what he says and does because of some personal inadequacy or personality disorder, I cannot say. Ironically, he said in evidence that outside of this (and matters associated with litigation), everyone likes him and thinks highly of him. I did not have the benefit of the wisdom of those observers other than perhaps the supervisor but even she was not enthusiastically complimentary.
I find the husband has no insight into the emotional and physical needs of his children. I find he has no understanding of how to relate to his children such that they are frightened of him. I find that he has few social skills to the extent that his confronting manner can be quite off-putting. He has no compunction about telling anyone who will listen that it is his rights that have been infringed. He has no understanding that his own children have rights to which I shall refer.
After the significant hearings of 2008 and 2009, the husband appears to have learnt nothing about what needs to be done to solve the problem of his relationship with his children. Nothing I heard in this proceeding indicated that he understood what the February 2009 orders were endeavouring to achieve. His most recent application included the pursuit of orders that various documents, orders and reports be made available to the Human Rights Commission. There is little benefit to the children for the Court to agree to that course of action but to the extent that the material forms part of any application to that Body by the husband, he may provide it.
On the adjournment of the proceedings on 2 October 2009 after a two day hearing, the husband insisted that an adjournment of three months part heard was inappropriate and unjust. He said the Chief Justice had been asked or told to give the case priority by the Attorney-General. He produced letters from the Attorney-General’s office in which no such statement was made. He said he wanted interim contact and for reasons I articulated at the time, I refused. Nothing in the final hearing had caused me to change my mind about the reasons given upon the July hearing.
The husband said he wanted the correspondence with the Attorney-General’s office to be placed on the court file. I refused. There is no basis for such extraneous and irrelevant material to clutter up the Court’s file.
The husband also said that I was only doing what I was (whatever that meant) to avoid an appeal. I reject that. The husband has no respect for the law or the courts which is evident from the outcome of the various proceedings in the Ringwood Magistrates Court. In the proceedings before me, he interrupted constantly making speeches which were distracting and unnecessary. As I pointed out to him at the time, he could always make an objection if it was relevant but his interventions were nothing short of distractions. To their credit, the other members of counsel did not permit his behaviour to distract them. The transcript will speak for itself.
A very significant involvement in this case has been by family consultant Mr V. The husband made strident criticism both professionally and personally of Mr V. However the thrust of the family consultant’s evidence was bordering on a plea for the sake of the children for the husband to take responsibility for what had occurred and to endeavour to mend the bridges with the children. Sadly, that plea seems at the end of the case to have fallen on deaf ears. Such is the state of the evidence therefore that there is no alternative other than to suspend the husband’s contact relationship with these children.
The husband represented himself in the final hearing. He understood the nature of the process. He cross-examined vigorously and his questions were mostly well-targeted. He objected to other counsel’s questions as to “relevance” and even that they were “leading”. He objected to being treated as the applicant because he said he was responding to the wife’s application even though he was formally, from a documentary point of view, the applicant. The husband well knew what the case was about. He requested that I interpose his witness who had commitments in the country and had to return by public transport. To their credit, both members of counsel agreed to that course of action. Albeit aggressive and at times rude, the husband is an articulate and intelligent man. I find the fact that he was unrepresented did not disadvantage him.
The husband relied on a series of his own affidavits and a witness Ms N who had “supervised” the time of the husband until the debacle in July 2009. The husband’s affidavit material was emotive and largely unhelpful.
When the hearing commenced, I asked him what he was relying on because I had no list of documents from him as I had from the other two parties. The husband said he relied on the whole file which at that stage, amounted to over 130 documents. I indicated he was not going to be allowed to do that particularly having regard to the fact that this was an application to vary orders made in February 2009. I made it clear that I was specifically interested in what had occurred subsequent to the making of those orders. Despite my endeavours to get the husband to focus on his material and the need to produce evidence so that the other parties could understand what his case was about, he was largely uncooperative. That became evident when he desired to lead further evidence from Ms N. Rather than have her material in a form that would have made her position clear, the husband chose to ask her leading questions. Over objection from counsel that the husband was leading, I allowed him to put his questions to his witness in not only a leading but in a cross-examining type fashion. I could see no other way that I could ascertain exactly what Ms N’s view was about how “the supervision” of the children had occurred after the February 2009 orders.
The wife relied upon a series of affidavits and three witnesses who had observed what had happened at the children’s school on 17 July 2009.
The Independent Children’s Lawyer only relied on the family consultant.
The husband sought orders in an amended initiating application filed 21 July 2009 that:
1. The mother’s application be dismissed.
2.[Ms L] be nominated as the supervisor or the Co-ordinator of [the local Council] in Home Care.
3.The mother be ordered to do a psychological assessment.
4.The final orders dated 18/2/09 be affirmed.
5.That the husband’s petrol costs paid to the wife be recognised as child support.
On 29 September 2009, the husband filed an application in a case and sought the following orders:
1. The mother attend a psychologist for treatment.
2.The mother appoint a councillor (sic) for case management of her parenting orders/and compliance.
3.The mother enter a bond with the court, that be forfeited in the event she does not comply with her parenting orders and/or shows further contempt with the court.
4.Auscript be ordered to provide a transcript of 20 July and 31 July to the father gratis.
In the same document, the husband also sought:
1.That the Family Court allow all court documents, exhibits and family reports to be released to the international Human Rights, (Body) for examination and that the court allow [the husband] to release and provide these documents without prosecution under the Family Law Rules, Family Law Act, 1975.
2.That the mother be ordered to have a psychological examination and ongoing supervision, if necessary.
3.That a councillor (sic) manage the mother’s parenting obligations in regard to parenting orders.
4.That the orders made on 18/2/09 be re-affirmed and that the mother’s application be dismissed.
The wife filed an amended response on 18 September 2009 but the orders she ultimately pursued were those set out in the outline of case document. She sought:
1.All existing parenting orders relating to the children [S] born […] December 1997 and [R] born […] February 2000 (“the children”) be discharged.
2.The mother have sole parental responsibility for the children.
3.The children live with the mother.
4.In the event that the children express a wish to spend time or communicate with their father, the mother facilitate such time or communication to the best of her endeavours as follows:
a.In the case of the children spending time with the father, the mother will;
i.Advise the father via email or text message of the child or children’s wish to spend time with him;
ii.Sign any documents and do all such things as may be required to enable time to take place between either or both of the children and
the father at a Supervised Contact Centre within 30 kilometers of the children’s primary place of residence, but not a service offered by [the Yarra Ranges area] Council, at the direction of the relevant contact centre and in accordance with the children’s wishes, with the costs of such supervision to be paid for by the father.
b.In the case of the children communicating with their father, the mother will:
i.Provide the child or children with either a postal address or email address; and/or
ii.Provide the child or children with the father’s telephone number.
5.The mother advise the father as soon as practicable, by telephone or text message, of any significant injury or illness affecting either or both of the children and of any hospital attendance by either or both of the children.
6.In the event of any hospital attendance by either or both of the children, the mother authorise any relevant hospital authority to allow the Father to visit the children whilst they are in hospital or under the ongoing care of a medical institution in accordance with the directions of the staff of the relevant hospital or medical institution.
7.The mother authorise any school that the children attend to provide the father with copies of the children’s school reports, school notices, school photograph order forms and any other documents which parents would ordinarily receive.
8.The mother will advise the father of any change in the children’s schools within 7 days of such change taking place via sms text message, email or telephone.
9.The father is restrained from attending the children’s school or any activities in which the children participate in other than when he has received a written invitation to attend the activity from the child participating in the activity.
The Independent Children’s Lawyer filed an outline of case in which he adopted a preliminary position in terms of the recommendations of the family consultant. In essence, the recommendation was that the time between the husband and the children be suspended.
The orders of February 2009 were made in something of a vacuum because the husband was facing criminal charges at that time and, because of their seriousness, I put in place a number of safeguards in the orders because the police case involved the children as witnesses.
Subsequent to the February 2009 orders, the husband was convicted of a charge of breaching an intervention order and sentenced to six months imprisonment which was then suspended. The husband argued strongly before me that there were no convictions for assault recorded against him. I have no doubt about the finding I now make that to be sentenced to a term of imprisonment indicates the seriousness with which the Ringwood Magistrates Court viewed the husband’s behaviour. The fact that the serving of the term of imprisonment was suspended does not lessen the serious nature of the charge. I have no finding by the Ringwood Magistrates Court as to what was described as the “incident” which gave rise to the imprisonment sentence, but I have no doubt that the Magistrates Court viewed the breach of the intervention order by the husband extremely seriously.
I set out below the relevant order that I made in February 2009. The stepped approach may sound draconian and perhaps even unreasonable in the eyes of the husband but in the reasons for judgment in making those orders, I said that I accepted that the husband had assaulted the wife in an incident in February 2007. I then said:
114.I have made strong findings about family violence. As I have said, much of the focus was on the incident on 26 February 2007. However each party made general allegations about family violence against the other right throughout their relationship. I accept that the relationship was one of constant conflict. Sadly, the children witnessed all of that.
115.I also note that there is a family violence order in this case. That speaks volumes for the need to keep the husband away from the wife.
116.Although the Independent Children’s Lawyer suggested as an option the possibility of a court review of the progress of any resumed relationship between the husband and the children, I find it would be preferable to make orders that reduce the opportunity for further litigation. If the husband cannot understand the advice given by the family consultant, there will undoubtedly be further litigation. In my view however, these children will soon learn whether their parents can be civilized and child-focused. If they cannot change their ways, there is little more that the Court can do but remove the children from the conflict. Final orders are therefore a necessity. (emphasis added)
117.In the orders I propose, I have taken into account that the husband had at various times not participated in the lives of the children properly notwithstanding he demanded to be a part of the decision-making processes for them. His belligerent attitude inevitably meant that there was no meaningful communication between husband and wife.

Pending the criminal matters being resolved, the husband was to have contact with the children on alternate Sundays commencing in March 2009 on a building-up basis for two hours to six hours conditional upon it being supervised by a person approved by the Independent Children’s Lawyer, the payment of money to the wife for travel and the supervisor contacting the wife to confirm the contact would occur.
The husband told me in July 2009 at a hearing in which I ultimately suspended the February orders that the Independent Children’s Lawyer did not arrange the supervisor but he arranged it through the Local Shire Council. That inaction, if that is what it was, may have contributed to the problem thereafter. In any event, the wife apparently agreed to the supervisor.
In the February orders I directed as follows:
That upon the completion of the final hearing of the forthcoming criminal law charges and any custodial sentence imposed against the husband, and subject to the said supervisor advising the wife in writing that the children do not need supervision, the husband spend time with and communicate with the children as follows:
(a)On each alternate weekend from the conclusion of school on the Friday until 6 pm on the following Sunday with the first of such Fridays being nominated by the said supervisor;
(b)By telephone to a mobile telephone number organised by the wife and made available to the husband such that calls be made to the children by the husband at 7 pm each Wednesday night;
(c)For one week of each of the school term holidays by agreement and in default of agreement, the second week commencing at 10 am on the second Saturday;
(d)For two weeks of the long Summer holidays in each year by agreement and in default of agreement, the two weeks commencing at 4 pm on 30 December;
(e)From 4 pm on 24 December until 4 pm on 25 December in each even-numbered year;
(f)From 4 pm on 25 December until 4 pm on 26 December in each odd-numbered year; and
(g)That any time to be spent by the husband with the children pursuant to paragraphs (15) and (25) hereof is suspended from 5.00pm on the Saturday evening before Mother’s Day until 5.00pm on the Sunday of Mother’s Day.
The person who supervised the husband’s time was Ms N. She was employed by the council. She provided her supervision notes of the various visits. In summary form, she said on March 1 2009, the husband welcomed the boys and tried to engage them in conversation. The boys responded in one word answers. On 29 March 2009, the boys were welcomed by the husband and he suggested bike riding but the boys declined. The boys showed interest in bug hunting and there was talk about catching yabbies and the husband expressed concern for their safety on a pontoon over water. The notes recorded that the children played cricket and then went on another bug hunt. The notes recalled that on 12 April 2009, R expressed that he did not want to go to his father’s unless the supervisor was there and she responded that she would be or someone else would be. Ms. N noted that R expressed that he only wanted short visits and did not want a sleep over. At the home of the husband, the husband asked about the school week and the boys responded with one word answers. The notes recorded that the boys played games involving the husband but they then lost interest and sat back in their chairs. Again the supervisor noted the boys giving limited responses. Interestingly, the notes recorded that on the return to the wife, the boys indicated that they were upset that their holiday had been cut short because they had to see their father.
On 26 April 2009, the husband tried to encourage the children in outdoor activities but the boys wanted to stay inside and sit down. They did not interact with the husband and the supervisor until after lunch when they played a game provided by the supervisor.
I stop at this stage to point out that this evidence was tendered on behalf of the husband. The document itself was attached to an affidavit filed 17 July 2009 for the July hearing but for the purposes of the final hearing, the husband relied upon it as his evidence. Thus, between March 2009 and 26 April 2009 notwithstanding what Ms N subsequently said, there was little in the notes that indicated that there was any enthusiasm in the relationship.
On 24 May 2009 which was the last visit, the boys were recorded as playing games with the supervisor and again responded to their father with one word answers. The husband presented a balsa wood model but the children were not enthused. There was an attempt to do some soldering and R and his father did that for some minutes. There was then a game played outside.
This evidence was led to show that there were signs that the relationship was starting to develop. That was certainly the view of Ms N. If that was so, it was very much in its infancy stages.
Between 5 June 2009 to 12 June 2009, the wife was an inpatient at Hospital where she was treated for pneumonia. The children were also unwell during that particular period although not necessarily for the entire period suffering from flu-like symptoms. During the period of her hospitalisation, the wife’s children were cared for by her current partner Mr TE.
The husband maintained that this was some sort of ruse and that even if the wife was hospitalised, the children were not ill and he pointed to the fact that she had taken the children to a court hearing in Ringwood. There was much confusion about this date but in reality it matters little. The husband accused the wife of effectively making his relationship difficult with the children by involving them in a court case when as he said “the rules of the court” according to the State Magistrate, dictated that children were not to be present. He said that the police officer who was involved in the case was criticised by the magistrate for breaching the rules of the court. He said that the wife’s solicitor was also told that the child should not have been brought to the court. I found the whole assertion by the husband puzzling. There is no doubt on the evidence of the wife and I so find, she was directed by the police to bring at least S to the hearing. Just what hearing it was and why, is unclear but the point that the husband was making was just nonsense. The husband said that this was an indication of the wife’s disrespect for his views as a parent but I find that the wife was simply doing what she was told.
In relation to the period of time during which the wife was in hospital with pneumonia, the husband asserted that he should have had time with the children and as he did not, he brought a contravention application. I heard the contravention application and on the material presented, dismissed his application.

The basis behind the husband’s view about the contact

Nothing I have heard in the final hearing has indicated to me that the position I adopted in relation to the contravention application was incorrect.
On 10 June 2009, Ms L of the Shire Council who describes herself as the family day care co-ordinator wrote directly to the wife. In that letter she said that following feed-back from Ms N, she supported clause 25 of the court orders and recommended for the husband to progress to unsupervised “access visits” with his children. She then went on to say that although the court order did not provide for ongoing supervision, it would be provided because the husband desired it. This letter was seen by the husband as the green light to move to the next stage of the contact pursuant to the orders that I made. In fact, I find that the orders that would have triggered the next phase of the relationship between father and children had not been carried out. Whilst that may be seen as a technical approach, the real problem was that in reality, accepting the evidence of Ms N, the children were nowhere near ready for the sort of relationship with their father that I had contemplated.

The suypervisor: Ms N

Ms N is by profession a childcare worker. She gave evidence on 2 October 2009 and was cross-examined by counsel for the Independent Children’s Lawyer. It became apparent that she had not seen the orders of February 2009 nor had she been given any explanation about their necessity or background before she began the arrangements with the husband.
Ms N said her supervisor did all of the things to protect her from being brought into court proceedings. Her role was to ensure the children were safe and that there were no “raised voices” or “violence” but also to ensure that the house was safe by which she was referring to building regulations. In fairness, she also made reference to the fact that they checked banisters to ensure that children were not likely to be hurt. Ms N did not seem to know the background of the parties’ dispute.
In July 2009, Ms N was called to give evidence by the husband as a result of which I made interim findings and orders. For the October hearing, the husband filed an affidavit by Ms N in which she said she disagreed with my findings in July. The details are not relevant but what was concerning was whether she was resiling from a critical issue about whether her supervisor made the decision to end the supervision or whether they did so jointly.
In the October hearing, I provided the audio of the July evidence which the parties had an opportunity to hear (the husband absented himself presumably because of some misunderstanding but at least his witness remained in the courtroom with the two members of counsel to hear all of the evidence). I am satisfied that Ms N’s evidence in July had not been misunderstood.
When pressed again on 2 October 2009, Ms N agreed that her supervisor had made the decision adding that in May 2009, they had discussed the way the various visits had progressed. It was certainly not a joint decision and its foundation was flawed because Ms N’s supervisor had not been present at the visits. The supervisor was relying on Ms N. Of some significance also was that Ms N said that neither she nor her supervisor was saying as at May 2009 that the visits should go overnight unsupervised. In the view of Ms N, the children were still getting to know their father.
I ventured on 2 October 2009 to ask whether Ms N thought the regime I had put in place was “too quick” and she agreed. The importance of all of this evidence was that the husband relied upon a letter written by a person not fully conversant with the facts gleaned from a supervisor who did not know the details of the orders or my judgment. The wife’s reaction to hesitate and request an extension of the supervision was understandable. The husband’s reaction was to presume he was entitled to collect the children from school for a whole weekend without supervision.
The combination of factors not only led to the disaster that occurred on 17 July 2009 but also to the present untenable position in which the children are frightened of their father, want no time with him and would be resistant to the implementation of any contact order.
Worse still, they are not open to hear any encouragement from their mother about the prospect of keeping any form of relationship with their father. The evidence of that is clear. The wife gave evidence that recently she endeavoured to encourage one of the children about his father and he ran away from the home (albeit for a few minutes to the house next door). This had not been mentioned before and came out in cross-examination. There was some dispute about whether it occurred before or after the July incident and I am not able to make any finding about the timing. The husband was quite upset about the fact that I asked about when it occurred but missed the point that if it occurred prior to the school incident, it was equally disconcerting because it indicated that the children were still not comfortable with their father and as such, unsupervised time would have been untenable.
The husband cross-examined the wife about the issue and whilst her evidence was vague and somewhat unsatisfactory, it was plausible and I find it to be true.
Before leaving the evidence of Ms N, it is also important to mention another disconcerting incident because it gave rise to my concern about the bona fides of the husband. In her notes of the various visits to which I have referred, Ms N recorded on the third visit about R indicating that he only wanted to go to his father if she was present. This was a curious statement and one Ms N did not follow up immediately at the time. On either the second or third visit, Ms N was unable to attend to supervise so she did not ring the wife in compliance with the orders of February 2009. The wife’s partner, Mr TE, delivered the children but the husband said nothing about the supervisor’s absence. The husband did not telephone Ms N at that time nor tell the wife the truth about Ms N’s absence. In their statements to the family consultant Mr V, the children referred to the weekend as “scary” because the husband had closed the doors and pulled down the blinds. Nothing untoward apparently happened but this is evidence consistent with what Ms N that the children gave limited answers to questions and were reluctant to do anything with their father. Whilst Ms N endeavoured to say that some of this was understandable because it was “normal oppositional behaviour”, in the context of what had occurred in the lives of these children, it is hard to imagine that being the case. When asked whether the children enjoyed themselves, Ms N said “At times”. However, Ms N as a matter of overall perception said that there were signs that the children were progressing with their relationship with the husband but certainly not to the extent of them being confident enough to have an overnight time with him without supervision. That was certainly not the husband’s view.
On any view, had the supervisor been fully cognizant of the basis of the orders, unsupervised time would not have occurred as early as May 2009.

The wife’s view about the contact changing

Subsequent to receiving the letter from the Shire Council Family Day Care Co-ordinator, the wife took the children to a psychologist who ultimately provided an affidavit but that document was not relied upon. It was obvious that the wife did not want the contact to occur and the letter by way of a report in the psychologist’s affidavit was notably addressed to the Ringwood Magistrates Court.
Around the time of the letter from the council, there was a flurry of text messages between the parties. The wife said she was not satisfied with the supervisor’s letter and the husband said that he was instituting contravention proceedings.
On 26 June 2009, the wife sent a message to the husband in which the wife said that she was following the court order and objected to overnight time but was happy for the husband to have supervised day visits and that the existing arrangements could continue. The husband replied by text that the wife was not in a position to negotiate and she would “learn” from the Court what would happen next. He said that she was not to text him anymore until after the court proceedings.
On 2 July the wife sent a text message which said that the reason the boys were not going on contact was that they did not want unsupervised time “yet” but that they would be prepared to see him on a supervised basis. The husband replied as follows:
You have had plenty of time to clarify this letter. Thats bullshit. I will bring you back to court every time you don’t comply with court orders and you will pay.
The wife then sent a message on 11 July 2009 saying that she was going to the aquarium the next day and offering for the husband to join her. In court, this offer took on a life of its own. The husband asserted that this was a ruse by the wife to lure him into a position under which she could then complain to the police to have him arrested for breaching the intervention order. Such is the level of trust between the parties and particularly by the husband of the wife. I watched closely how the wife responded to that cross-examination and I accept her version that she did it in good faith and there was no suggestion that she was endeavouring to get the husband into trouble. Sadly, the husband missed out on the chance to spend some time with the children.
When the husband received the text message, his reply was as follows:
See you in family court on 20. Unless the boys injured or in hospital done (sic) bother me with anything that’s not in the court orders.
It will be evident therefore that the husband had determined that the matter was returning to court.
There were then court proceedings relating to the contravention and I have mentioned them earlier. The husband was unsuccessful.

The husband attends school on 17 July 2009

The crux of the problem in this case however occurred on 17 July 2009 when the husband attended the school of the children. He had not told anyone that he was going to do that. I have heard the evidence about this incident from the husband, the wife and three people connected with the school. I find the following was what occurred. At approximately 2.40pm the husband attended at the office of the school. The children were called to attend. R came to the glass door, saw his father and ran away. The assistant principal to whom I shall refer shortly in detail then went outside of the building towards the child S who was sitting on the ground. Both boys were then together. Both indicated that they did not want to go with their father. The assistant principal endeavoured to discuss the issue with the husband but he insisted that he was taking the boys. The husband then grabbed R by the wrist and S under the arms lifting him off the ground. R then broke away from his father. The husband then carried S under the arms from the school across the road to a bus stop on the opposite side of the highway. During this period of time, S was kicking and wriggling and calling out for help.
The assistant principal then called the police.

Ms A: Evidence of observations

A significant witness in the proceedings was Ms A who quaintly described herself as a lollypop lady. She said she was in her car about 50 to 100 metres from where the husband carried S to the bus stop. She described him as shoving S down on his buttocks on the ground by placing his hands on the child’s shoulder and head whereupon the child remained with his head in his hands constantly calling out for help. She said she left her car which was parked in the carpark and went to the school where she was to collect her items to commence her duties. She did not interfere because she said she did not know what to do but she spoke to a teacher who was obviously cognizant of what was going on. She then returned outside to her duties and to her horror, saw S get up off the ground and run straight across the highway without looking. He did not go through the school crossing but ran straight into the arms of the assistant principal.
The husband did not seriously challenge Ms A’s version of those facts.
Ms A then said that as the husband was left alone by S, he walked to the crossing and said to her “This is what happens when teachers don’t do the right thing”. She responded by saying that they were doing the right thing and looking after the interests of the child to which he replied she would stick up for them because she worked with them.
The last observations and conversation provoked the only real cross-examination by the husband of Ms A. He put to her that her statement to Sergeant L of the Victoria Police was a malicious attempt to get at him and that she was in “cahoots” with the teachers. Ms A had no axe to grind with the husband. I find she knew the children in her role as a lollypop lady and had every reason to be concerned for the safety and welfare of S. She did not interfere but reported her concerns to the teacher who was conscious of what was going on. The accusation of the husband was entirely without foundation and I find it was scurrilous. I have previously said of the husband that he was the only one out of step with everyone: this is one such example. Ms A is to be commended for coming forward when requested by the police to give evidence. I found her a truthful witness and I accept her evidence.

The evidence of Ms U

Ms U was called as a witness for the wife. She is the assistant principal of MA Primary School. She was in charge of the school on 17 July 2009 in the absence of the principal.
On 16 July 2009, the husband called the school to indicate that he was intending to collect his children the following day. On 17 July 2009, the husband spoke to Ms U in the morning and requested that she let the children know that he was coming. Ironically, when cross-examining Ms U, the husband put to her that he had called her on the basis that she was to let the children know of him coming to avoid them being “shocked”.
Ms U did not speak to the children because the husband had told her that he would be present at the school at 3.00pm. She said she was busy with other duties including another campus and thought she had enough time. It is common ground that the husband arrived at 2.40pm and Ms U had not spoken to the children.
Ms U told the Court that she had been advised of the existence of the Court’s earlier orders by the principal who had told the staff that there was a court order that the husband could spend time with and therefore take, his children from the school. That advice was given to the staff “a couple of weeks” prior to the July incident. When asked why it was necessary for the school to adopt that approach, Ms U candidly conceded that the principal had decided to tell the staff so that there would be an understanding of what to do if the husband arrived. That approach has to be seen in the context of the behaviour of the husband in relation to the school historically. That will become evident below.
Counsel for the Independent Children’s Lawyer suggested to Ms U that it was odd that having been advised of the potential attendance on 16 July and again on the morning of 17 July 2009, she did not contact the wife. Her candid response was that she did not do so because the principal had told the staff not to take sides and had she contacted the wife, she would look like she was taking sides. Again, that comment has to be seen in the context of the historical relationship between the husband and the school.
Ms U said that the children were called to the office to attend with their bags because the husband arrived. She observed R arrive at the door and the child ran. Ms U then followed to where S was and the husband followed. She said that both boys made it clear that they did not want to go. She was not able to remember the precise words. She then conceded that she spoke to the husband trying to convince him not to remove the children and that that conversation took place in their presence. Whilst that may have been inadvisable in some circumstances, it made little difference in this case because the husband said that he was taking them whether they wanted to go or not. She said that she observed the husband then “grab” R by the wrist but R got away and ran. She said that he then grabbed S under the arms lifting him off the ground. The husband then carried S quite forcefully across the school grounds and across the busy road where she saw him “dump” S at the bus stop.
The husband took exception to the use of the word “dump”. He challenged Ms U about that word and she described what she meant by the husband shoving the child on the ground. She said she saw him push S to the ground with his hands and that it was both a downward and sideways push. She said S called out.
She said whilst S was being carried across the road, she observed him to be kicking and calling out for someone to save him or help him.
Ms U crossed the road and spoke to the husband but his response was to ask her to call a taxi and she refused. He asked her to bring R to him and she also refused. She then walked back across the road to ring the police. When asked why she did that, she said it was to protect the neutrality of the school.
As she walked back to the school, S ended up in her arms, obviously having left his father. The father conceded that the child escaped.
The police thereafter attended.
When Ms U saw the children in the presence of the mother, they were very distressed. Notwithstanding the use of that word, the husband questioned Ms U as to what she meant by distressed. It was perhaps an odd question to ask because it gave her a licence to say how the children were different from what she would otherwise know of them as a teacher. She said R was extremely quiet. S was complaining that he was sore and on the face of S, he was in pain. When she asked S how he was, he responded that he was not very good.
There was no reason for me to find that Ms U was anything other than honest and objective. I accept she saw what she saw and did what she did. She was a truthful witness.
The husband cross-examined Ms U on the basis that she was incompetent because she did not know of the Departmental guidelines about how to handle matters and in particular, the need to remain objective. I have no hesitation in saying that I reject that. Ms U saw the importance of remaining neutral and did so. However, there can be little doubt that her neutrality had to give way to her obligation to protect the child even in circumstances where the husband might have felt that he had some legal right to do what he was doing. I commend Ms U for approaching the issue the way she did and I find there was nothing in the evidence upon which I would criticise her. Importantly, knowing that the husband had a history of disputes with the school, she acted sensibly. If I had any criticism of Ms U at all, it is that she took the neutrality too far and did not contact the wife. Having said that, all that might have then occurred was that the wife might have attended to remove the children from the school earlier and the scene may have been avoided. I do not intend that as a criticism as such but indicate that I appreciate very much the difficult role that the teachers have to play where their protective role of their charges is under pressure as well as scrutiny. It cannot have been easy dealing with the husband.
The husband spent some time putting to Ms U that the school directorate had been critical of the staff over a variety of incidents. All of those were irrelevant. However, what that history shows is that the school had felt it was walking on egg shells and it should not have been put in that position. There is no-one to blame for the position other than the husband.
Undeterred with his suggestion that Ms U was acting inappropriately, the husband put to her that she was totally exaggerating. I reject that. He put to her that she inflamed the situation. I reject that and find that it was only the husband’s conduct that caused the problem. It was put that she was telling lies in respect of the evidence to which I have referred above. I reject that. It was put to her that the child R was not “concerned”. Her response was that the child was “petrified”. I have no reason to doubt her objectivity in making that statement and I accept it.
It was put to her that the child R did not say a word during the whole process. I reject that. It was put to her that she did not cross the road to the bus stop. I reject that. It was put to her inferentially that she had exacerbated the situation and somehow or other had concocted with the police by familiarity with them and allowing them to use the school, to have the husband charged with offences arising out of the incident. There is no evidence upon which I could find the husband was justified in making that assertion.
The husband put to Ms U that the “female staff” were a “bunch of hen-pecked mothers”. The expression was puzzling and I queried what he meant. He said that these women were acting like chickens or ducks hovering around their young offspring to somehow protect them from males. I concede I have never heard that explanation for the expression before. Despite the terminology, if that is what the husband meant then that is exactly what the teachers did and I commend them for it. It is most unfortunate however that he used the terminology he did because he intended it in a pejorative sense. Consistent with my view about the husband’s incapacity to see his own inadequacies, this is another example.

The evidence of the husband

In addition to seeking orders that the time pursuant to the February 2008 orders be resumed, the husband sought a specific order that the wife be examined by a psychologist. In the material to which I have referred and upon which the husband relied, there was no evidence that I could say concerned me about the wife’s behaviour such as to make me think that some independent analysis needed to be undertaken of her behaviour. At no stage did the husband point to a psychologist or medical practitioner who indicated concerns about the conduct of the wife. The whole of his evidence supporting this order was that he believed that she needed a psychological assessment because of her behaviour in excluding him from his children.
By coincidence apparently, on the resumed hearing on Friday 15 January 2010, the wife attended with her mother. The husband seemed a little surprised and said that no-one had told him that she was coming. He said he wanted the mother called because he wanted to put to her that her husband had raped or attempted to rape the wife when she was young. This he said would establish that the wife had a psychological illness requiring an assessment. He said it was known by professionals that those sorts of assaults gave rise to problems in adulthood.
The husband conceded that he did not know what the wife’s mother would say nor whether she would be truthful. What he had in mind was an interrogation. He had no intentions of providing an affidavit nor a proof of evidence. In addition, when he learned of the presence of the wife’s mother, he sought an order for an injunction precluding her from leaving the country pending the hearing of the evidence and any appeal. Not only was there no evidence to support such an order but there was no basis for the application to be made.
To make matters a little more complex, the husband said that he wanted to make an application that I disqualify myself because I would not allow him to call the evidence. I gave him an opportunity to obtain legal advice. That necessitated the delay in the resumption of the hearing. When he returned after giving legal advice, he indicated that he would only make the application that I disqualify myself on the basis that I refused to allow him to call the wife’s mother to give the evidence. I indicated that I would not permit him to call that evidence and asked him whether he was still making the application that I disqualify myself. What he was alluding to was that he wanted another judge to hear that issue.
After a number of requests that he indicate whether he was proceeding with the application that I disqualify myself, he said that he would not proceed with it at that stage but reserved the right to make the application again. He did not make that application. On the basis of what he was putting, there was no basis for such an application. A whole process surrounding that including the time spent whilst he obtained apparent legal advice wasted not only court time but incurred costs for the wife and the Independent Children’s Lawyer. I am satisfied that the husband did get some sort of advice because upon his return, when pressed, he indicated that he was relying on the decision in Johnson and Johnson [2000] 201 CLR 488, a decision of the High Court. Needless to say, I make no further comment about thereafter occurred in relation to that issue. The husband subsequently did make the application which I dismissed. I have delivered separate reasons in respect of that application.
I pressed the husband on a number of occasions about whether he was relying on any other material than that which he had presented when he opened the case in October 2009. It was only in re-examination that he produced two handwritten statements of the children when he over-held them and took them to Sydney. I do not propose to canvass what the children there said because it is not relevant to the issue that I have to determine; the material pre-dates the February orders.
Whatever the husband’s evidence may have been in the variety of affidavits upon which he relied, there is a very simple proposition that he was conveying. His view was that he was entitled pursuant to court orders to attend at the school and collect his children whether they wanted to go or not. It was not a subject of negotiation with the wife or the school as he felt that he was entitled to do what he was doing. His view was that the children had no right to resist.
There was cross-examination of the husband by counsel for the wife that he knew that the supervisor had not attended on the second occasion and not only did he not tell the wife or her partner of the supervisor’s absence before the contact commenced but nor did he tell them at the conclusion. His view was that it was not a relevant issue and that he did not need to worry about it. Nothing according to the husband occurred notwithstanding the boys told the family consultant that they were scared and that the room was darkened by the blinds being drawn. The husband said that those statements to the family consultant were not matters of any weight because he did not accept the majority of what the family consultant said.
Whether the children were frightened or not on the second visit is irrelevant to the fact that the husband refused to let the wife and her partner know of the dilemma about the absence of the supervisor. The husband was quite content to constantly accuse the wife of breaching orders but he did not see his own conduct as being inconsistent with the requirements under the order for him.
Counsel for the wife asked about the build-up to July. The husband said that there were no incidents that would suggest that the build-up was not working. There was clearly a problem in early June when text messages between the parties indicated that they would be going to court if the wife did not hand over the children. This included the period when the wife was hospitalised. Counsel asked about how the hospitalisation should be viewed and the husband said that the wife had lied before.
What the husband maintained was that the supervisor had written a letter explicitly “granting unsupervised time”. That was hardly the role she was to play.
In respect of the school incident, counsel put to the husband that the children were not happy. The husband laughed and said that he had the orders and that was it. When it was put to him that later in the incident S was sitting on the ground and was upset, the husband said that the child was “happily crying”. He said he was not doing “anything abnormal”. He conceded that the child was looking for an opportunity to run away.
Counsel asked him whether it mattered that S was kicking and screaming. The husband’s response was that he had the orders. It was put to him that the children did not want to go and he corrected counsel by saying that S did not want to go and he only restrained S so that he would not hurt himself by running across a busy road. His suggestion that he was acting “protectively”, was absurd.
Both counsel for the Independent Children’s Lawyer and counsel for the wife pressed the husband for an explanation as to why both children behaved the way they did and particularly S. As for S, the husband’s response was that the child had been brainwashed by the wife and her “hen-pecked school teachers”. He then went on to add that it was the influence of the wife and “corrupt police”. It was put to the husband that he was forcing the children to go. He said that he certainly forced S but that could not be said of R because R ran away.
Counsel then drew the husband’s attention to the discussion that took place with the children in the family report. Rather than the impression to which I shall refer further below that I had that the children were being denounced by the husband inappropriately, the husband said that S knew that he had done wrong and he was content for the child to be told that.
Counsel for the wife asked the husband about what confidence the Court could have about him saying appropriate things in front of the children. His response was enlightening. He said that the Court had “totally stuffed” the case up and that he was the parent and he had the right to bring up his children as he saw fit. He said if the children lied and cheated, he had the right to tell them that they were wrong. As for the family consultant, he added that he did not think he was professional and he was not a psychologist.
Counsel for the wife tried to come back to the issue of the impact of the husband’s conduct on the children both in respect of the July issue and that which occurred with the family consultant in the family report. The best the husband could do was to turn the issue into one in which it was the Court’s fault along with the Independent Children’s Lawyer, the police and the school and obviously, the Ringwood Magistrates Court. As for the Ringwood Magistrates Court, the husband said it would be better if it was not run by the people who currently run it.
Of the family consultant (and presumably all family consultants) the husband was of the view that “they” simply repeated what the wife said. He said they were like “rabbits” in that they ate the same food everyday.
As I shall point out below, family consultant Mr V suggested that the first step that the husband had to take to repair the relationship with his children was to apologise. Fundamentally, the husband said he would never apologise although in re-examination in a more gentle frame of mind, he said that he might contemplate it in the future. When he was asked by counsel about an apology, he simply responded by describing counsel as an “idiot” and said that there was an order and that he was never going to apologise to S and he asked counsel in emphatic terms whether that was “clear enough”.
Counsel for the wife then turned to the issue of the injuries that it has been alleged that the child suffered. The husband maintained that at no stage in any of the areas shown in the photographs could he be said to have been responsible for what occurred. He said the only thing he did was to lift the child under the arms and there might have been some indication in one photograph of a bruising in that area. All of the other injuries on the child’s back and other parts of the torso were nothing to do with him. This is a difficult issue because there is no clear evidence as to why the injuries were there. I do not know what the child’s condition was prior to 17 July. I do not know with any certainty whether a medical practitioner would say that the injuries were consistent with the evidence that I was hearing about the husband’s conduct. I think it matters little in this case because that issue is apparently to be determined by the Magistrates Court as I now understand the husband was very recently charged with assault. Importantly, the issue is the fact that the husband maintained that it was either the wife or the child himself who inflicted these injuries. He had absolutely no basis for such an assertion. There is no evidence of any historical nature or in these proceedings, to indicate that the wife has a propensity to cause injuries of that nature nor is there any logical reason why the child would have done it. Whilst there might have been the opportunity in terms of time after the incident occurred before the child was examined by the doctor, it is highly improbable that the child or the mother would orchestrate those sorts of bruises for the purposes of these proceedings or having the husband charged with assault. Of course, all of that is in the context of the husband accusing the Victoria Police of being part of the conspiracy against him. Again in a quieter moment in re-examination, he explained to me that he had had a problem when he left the Navy and was being pursued by the Federal Police. He referred to incidents involved in his local area in which he had contacted authorities about the police not exercising their obligations relating to licensing laws and that there were problems about him driving without a licence. There are clearly difficulties with the local police in the area where the wife lived because he was charged and convicted by the court at Ringwood in relation to issues of breaching the intervention order by the court.

Accordingly, when examining s 60CC(2) it is clear that the children cannot benefit from having a meaningful relationship with their father whilst he adopts the approach that he does. It is therefore not in their interests to maintain the sort of relationship that I had contemplated in February 2009.
Section 60CC(3) sets out the additional considerations. I shall deal with them sequentially.
I am quite satisfied that the children understand very clearly the nature of the dispute between their parents and do not want to have any time with their father at the moment.
I am satisfied that the relationship between the children and their mother is sound but that they have real fear of their father because of the way he behaves towards them and their mother.
I am satisfied that the wife did endeavour to facilitate the orders that I had made in February and adopted a reasonable approach in the circumstances having regard to the view that Ms N had that the children were not ready for overnight time with their father. On the other hand, the husband shows no willingness to facilitate the relationship between the children and their mother. He talks of the wife in derogatory terms to anyone who will listen. The children must understand that that is the way he thinks. I have real concerns that he will simply tell them if he has the opportunity to do so.
I have taken into account in the orders that I make the likely changes in the children’s circumstances in not having time with their father. I have serious concerns that the children will miss out on a very significant entitlement in their life in having a father. They need to have the opportunity in circumstances where they respect, admire and feel secure with that person. On the evidence, I could not find that any of those situations occur here or are likely to occur in the foreseeable future. The family consultant provided the husband with an opportunity to start again by an apology to his children. In October that suggestion was met with derision. In cross-examination in January 2010, the husband again rejected it outright. He found it fanciful. In re-examination when I gave him an opportunity to pursue some themes, he said it might be possible in the future. He needs to contemplate that because he holds the key to open the door. An apology in this case is not just in relation to what happened in July but in relation to his whole attitude to the children’s mother and her importance in their lives.
There are still practical problems in any event in relation to pursuing the relationship between the husband and the children because of the distance but that is a matter that the husband can control.
In terms of the capacity of each of the parents to provide for the needs of the children, I dealt with that in February 2009. Nothing I have learned in 2009 subsequently or in the hearing in January 2010 convinces me that the husband has learnt anything about the needs of his children.
I have also contemplated the attitude of the husband to his children and I have said enough about that which is reflected in what he said to S in the presence of R during the family report interviews. The husband did not deny saying those words.
If one contemplates the responsibilities of parenthood, the fundamental facets are set out in s 60B. The husband is not fulfilling his responsibilities as a parent and it has nothing to do with the Court or any of the other persons at whom he points the finger. I have previously been satisfied about family violence and do not need to say any more about it in this case.
Section 60CC(3)(l) requires me to make an order that would be least likely to lead to the institution of further proceedings in the future. I cannot see any way of avoiding future proceedings in the event that the husband does decide to litigate upon what he sees are his rights as a parent. However, it must be obvious to him that he can avoid litigation by simply endeavouring to build the foundation for a relationship with his children in circumstances where they are keen for that to occur. At the moment nothing could be further from that position. If the husband enticed the children to accept that he has changed and that he does respect them, it is conceivable that they might be interested in having some time with him. To give him the opportunity albeit he has rejected it as an immediate prospect, I propose to make an order that he can write to them. He must understand that if he simply writes setting out events that are happening in his life and does not address their concerns and fears about him, the letters will fall on deaf ears. He can send presents of a material nature but unless those presents are accompanied by sentiments that are attractive to the children, they will be meaningless.
When all of those matters are considered, there is no alternative but to give the children some respite from his behaviour. I stress it is not just his behaviour in July to which I am referring. He needs to create the very foundation for a relationship with his children and he need look no further than the evidence of Ms N to indicate that there was much work to be done. It is absolutely pointless for him to point the finger at the wife and say that it is all her fault. Even if that were so, the children have the view that they have because of his behaviour and as such, he has to mend the bridges. He cannot mend bridges with the children as if they were adults. They are not. They are entitled to be protected as children from the adult concepts that he seems to think they will clearly understand. He needs look no further than the matters that I have set out above in s 60B of the Act as indicative of what the Australian people desire for children. He has not met that charter. He has the opportunity to do so in the future but the work must be done by him first.

Equal shared parental responsiblity

In the orders I made on 18 February 2009, the wife was to have sole parental responsibility in relation to medical issues and I made provision in relation to educational issues but otherwise the parties have equal shared parental responsibility.
It is abundantly clear that the parties have no form of communication. Any attempts by them during June were not only unfortunate, they were unpleasant. Their usual method of discussion is by text message. The husband has no concept of civility.
Accordingly, it is impossible to see the regime that I had then contemplated working.
Section 61DA(1) provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility.
There are two bases upon which that does not apply. The presumption may be rebutted if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence and secondly that the evidence satisfies the Court that it would not be in the best interests of the children for those parents to have equal shared parental responsibility for the children.
For all of the reasons that I have set out above, both of those grounds apply in this case and the presumption is therefore rebutted.
Section 65DAA(1) also provides that if a parenting order provides that the children’s parents are to have equal shared parental responsibility the Court must consider equal time and then if that is not appropriate then substantial and significant time. I say for the purposes of the record, that it is not appropriate for the parents to have equal shared parental responsibility and as such, the issues set out in s 65DAA do not apply.

The future

I have already set out my concerns about what steps need to be taken before any serious parenting can be undertaken by the husband. There is no basis for the husband to bring any further application without making some endeavours to solve the problems to which I have referred. Section 118 of the Act provides that on the basis of a court being satisfied that the proceedings were frivolous or vexatious, an order can be made preventing further applications being made to the Court. I do not find that the husband’s applications were frivolous or vexatious although I clearly indicate that they were misguided. I do not intend to make an order under s 118 of the Act for that reason.
Section 64B(2) sets out what matters a parenting order may contain. That provision includes:
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
i.a child to whom the orders relates; or
ii.the parties to the proceedings in which the orders is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Section 65D provides that in proceedings for a parenting order, the Court may make such parenting order as it thinks proper. The husband can always negotiate with the wife on terms that do not breach any intervention orders and agreement can always be reached about future parenting issues. It would not therefore be appropriate for the Court to simply permit the husband to bring any application he liked in the future without some indication that there is a basis for the Court to re-examine the position. To allow the husband to make an application at any time he felt aggrieved may have unfortunate and inappropriate psychological consequences for the children. That is undesirable. In my view, s 65D is sufficiently wide and it would be proper in the circumstances, to make an order that the husband not make any application for parenting orders in the future without leave of a judge of this Court. Whilst there are clearly other courts within the Australian judicial hierarchy who have jurisdiction to deal with matters, I specifically appoint a judge of this Court on the basis that there is a complicated and difficult history involved.
In paragraph 21 of these reasons, I referred to the husband’s application filed on 21 July 2009 in which he sought that petrol costs I had ordered him to pay be recognized as child support. The husband led no evidence in relation to that claim and did not mention it in any way. It did not figure in any submissions. That being the case, I will not make any orders in those terms. In any event, for reasons which ought now be apparent, there will be no such expense for the husband in the foreseeable future.
In paragraph 22 and 23 above, I referred to the order sought by the husband to have the obligations managed by a counsellor. At various times, the husband raised the subject and said that the wife needed a counsellor or that a psychologist/counsellor should mediate the case. This was not a matter in which any evidence of the husband could realistically alter the position for the children. It will be noticed that in the February 2009 orders, I made an order for supervision by a counsellor. I do not propose to repeat that order. Suffice to say, the husband had no proposals as to how his counsellor could help and the appointment was not one that he had really thought about.

I certify that the preceding One Hundred and Seventy Seven (177) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 22 January 2010

[2010] FamCA 20

22 January 2010

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Injunction

Jurisdiction

Procedural Fairness

Remedies

Standing