Best and Best

[2012] FamCA 28

FAMILY COURT OF AUSTRALIA

BEST & BEST [2012] FamCA 28

FAMILY LAW - CHILDREN – Parenting – Parental responsibility – With whom children shall live and spend time – Bests interest considerations – Where the father suffers from episodic depression and personality disorder – Where the children have a meaningful relationship with both parents – Where the father has undermined children’s relationship with the mother – Where father’s behaviour involves risks to children’s ongoing relationship with the mother – Finding of family violence made – Risk assessment - Presumption of equal shared parental responsibility does not apply – Orders made for the mother to have sole parental responsibility and for the children to live with the mother – Orders made for children to spend time with father initially supervised and then increasing and becoming unsupervised – The father’s time spent with the children is conditional and requires compliance with a medical treatment regime.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 64B, 65AA, 65DAA

Collu & Rinaldo [2010] FamCAFC 53
Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Best

RESPONDENT: Mr Best

INDEPENDENT CHILDREN’S LAWYER: Maguire & McInerney

FILE NUMBER: WOC 91 of 2010

DATE DELIVERED: 3 February 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 23, 24, 25, 26, 27 May and 8 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie

SOLICITOR FOR THE APPLICANT: DGB Lawyers

ADVOCATE FOR THE RESPONDENT: Mr Best in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Jackson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Maguire & McInerney

Orders

1. All prior parenting orders are discharged.

2. That (“the children”), C born … June 1999, L born … December 2000, V born … April 2005 and O born … February 2007 live with Ms Best (“the mother”).

3. That the mother have sole parental responsibility for the children’s long term care, welfare and development.

4. That Mr Best (“the father”) shall spend time with the children as follows:

   4.1for two hours each alternate weekend supervised at the Z Organisation Contact Centre, Wollongong (“the contact centre”) on dates and times nominated by the contact centre, until the end of Term 3 2012;

   4.2thereafter, until the end of Term 4 2012, each alternate Saturday from 9.30 am until 6.00 pm;

   4.3thereafter, until the end of Term 1 2013, each alternate weekend daily on Saturday and Sunday, from 9.30 am until 5.00 pm; 

   4.4thereafter until the end of Term 2, 2013 on each alternate weekend from 9.30 am Saturday until 5.00 pm Sunday;

   4.5thereafter on each alternate weekend from the conclusion of school Friday until 5.00 pm Sunday;

   4.6on Father’s Day 2013 and every Father’s Day thereafter, from 9.30 am until 5.00 pm;

   4.7on Christmas Day 2012 from 9.30 am until 5.00 pm;

   4.8on Christmas Day 2013 and each odd numbered year thereafter from 3.00 pm 25 December until 5.00 pm on 26 December; 

   4.9on Christmas Day 2014 and each even numbered year thereafter from 3.00 pm on 24 December until 3.00 pm on 25 December;   

   4.10from after the father starts unsupervised time on the father’s birthday from 3.00 pm until 7.00 pm;

   4.11on the children’s birthdays in 2013 from 3.00 pm until 7.00 pm and each alternate year thereafter;

   4.12commencing end Term 2 2013, for the first half of each of the shorter school holidays to commence from the conclusion of school on the last day of the school term and to conclude at 5.00 pm on the seventh day of  the school holiday period; and 

   4.13commencing in 2013, for seven (7) days commencing at 9.00 am on 1 January and concluding at 5.00 pm on 8 January. 

5. Commencing from the end of Term 1 2013, each parent may attend the following important events, even when the event takes place while the children are in the other parent’s care:

   5.1weekend final fixtures and demonstration sports days;

   5.2special events associated with the children’s extra curricular activities that allow for parental attendance;

   5.3special school functions to which parents are invited; and

   the parent who has the children in their care on the day of such activity will be responsible for the children’s care throughout the event, including their transportation to and from the event.  The parent whose attendance does not coincide with the children being in their care must give no less than seven days notice of attendance and if the requisite notice is not given that parent shall not attend.

6. That the father’s time with the children is subject to the following conditions:

   6.1that he continues to consult and personally attend Dr D or such other psychiatrist as recommended by Dr D no less than monthly until the end of 2013 and thereafter as recommended by Dr D or his nominee and complies with his treating psychiatrist’s recommended treatment;

   6.2that he not consume or be affected by alcohol whilst spending time with the children;

   6.3that the mother and Independent Children’s Lawyer may from time to time request from Dr D or such other clinician as the father has been recommended to consult details of the father’s treatment and this order is authority to the mother and/or the Independent Children’s Lawyer to obtain such information;

   6.4that the Independent Children’s Lawyer is to provide to Dr D a copy of these orders, as well as such other clinician to whom the father is referred by Dr D.  

7. Other than in accordance with these orders, the father is restrained from approaching the mother and the children or communicating with them.

8. Each party shall nominate a third person (that is, a nominee by the mother and a different nominee by the father) through whom the parties shall promptly keep each other informed about the following matters:

   8.1significant health issues in relation to the children;

   8.2medication which the other parent has obtained for the child and which it is recommended continue;

   8.3medical appointments by the children with specialist doctors, psychologists, counsellors and/or therapists;

   8.4changes to where the children attend school; and

   8.5changes to the parties’ residential address and the adults who reside there.

9. That the children live with mother; which shall include the following significant days:

   9.1on Mother’s Day from 9.00 am until 6.00 pm;

   9.2on Christmas Day 2013 and each odd numbered year from 3.00 pm on 24 December until 3.00 pm on 25 December;

   9.3on Christmas Day 2014 and each even numbered year from 3.00 pm 25 December until 6.00 pm on 26 December; and

   9.4on her birthday from 3.00 pm until 7.00 pm.

10. That changeover is to take place at the contact centre unless the time for changeover coincides with the conclusion and/or commencement of school, then changeover shall take place at the children’s school.

11. For changeover times other than those referred to in Order 10, the mother or her agent shall deliver and collect the children at the father’s home and during change-over he shall remain inside his house. 

12. Commencing from the end of Term 2 2013, the father’s weekend time with the children is suspended during school holidays.

13. The father is restrained from discussing or showing to the children any document related to these proceedings.

14. The mother shall continue to make arrangements for the children to attend counselling with Z Organisation or such other health professional as may be recommended from time to time.

15. BY CONSENT that each of the parents are permitted to liaise directly with the children’s school(s) and sporting bodies to obtain information about the children’s progress and that both parents are to authorise the school(s) and sporting bodies to facilitate this.

16. BY CONSENT that both parents provide the necessary authorities to the Principal of each school attended by the children to ensure (subject to the school’s decision) that the school forwards to both parents copies of the children’s school reports along with copies of invitations to activities which parents are invited to attend.

17. Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) 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 these particulars are included in these orders.

18. Subject to any application for costs, all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Best & Best has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 91 of 2010

Ms Best

Applicant

And

Mr Best

Respondent

REASONS FOR JUDGMENT

Introduction  

1. These are parenting proceedings in relation to the parties’ four children, C, L, V and O.  Respectively, the children are 12, 11, 6 and 4 years old.  The children live with Ms Best who is their mother (“the mother”) and spend time with their father, Mr Best (“the father”) two hours each fortnight at a contact centre.

2. After the parties separated in late 2008, by agreement, the children’s time was divided equally between them.  This ended in January 2010 after the father informed police he had wired his house with sufficient explosives to destroy the surrounding area.  … .  The incident was aptly referred to by police and in the hearing as a siege.  This was not the first time the father had engaged in family violence directed at the mother.  The siege ended without anybody being physically harmed and with the father being admitted to a psychiatric hospital and charged with various offences.  … the elder children, to different degrees, understand that the father was involved in a serious police incident.  On the mother’s application, shortly afterwards and for the first time, parenting orders were made.  Relevantly, the effect of these interim orders was that the father was refused face to face contact with the children.  According to him the mother opportunistically used the siege to deny him his parental rights and to take control of the children.  As will be discussed later, the mother acted responsibly and the father’s claim she was ill motivated and acted contrary to the children’s best interests is rejected.  

3. Further interim orders resulted in the father and children resuming face to face contact in October 2010.  There is no doubt that this first weekend went well and that the children enjoyed their time with the father who cared for them appropriately.  However, four days later and contrary to an apprehended violence order (“AVO”) made for the mother’s protection, the father sent her an SMS message in which he asked her to agree that he spend more time with the children than was ordered only two weeks earlier.  Although this may appear innocuous, it needs to be appreciated that over a long period he subjected the mother to a campaign of harassment by email, SMS, telephone and through friends and family.  On this occasion, when she did not respond immediately he sent her a second, extremely abusive, message which he circulated to a large number of her family and friends.  A separate series of SMS messages were also sent by him to the mother’s stepfather.  These were profane, abusive and contained threats of grave harm.  This was not the first time the father had used SMS messaging to threaten the mother or members of her family. 

4. Thus, after that one weekend with the children, in early November 2010, the interim orders were suspended in favour of orders for him to spend time with the children at a contact centre.  Infuriated by this turn of events and because he said the orders implied he is dangerous, for months the father refused to see the children and they did not see him until he relented and time at a contact centre commenced in March 2011. 

5. It is agreed that the children enjoy spending time with the father at a contact centre and that these periods have gone well.  There is also no doubt that the children want to spend much more time with the father and articulate a desire to resume week about time.

6. It is proposed by the mother that she have sole parental responsibility, the children live with her and continue to spend time with the father at a contact centre.  She is conscious her proposal is in conflict with the children’s views and contrary to recommendations made by Dr W.  Dr W is a Fellow of the Royal Australian & New Zealand College of Psychiatry who was appointed to investigate and report upon the family.  He is qualified to complete the investigations and express the opinions sought from him.  Two reports were completed by Dr W, the first of which followed interviews with the parties and children in July 2010 with further interviews and a second report in early May 2011.  In his first report, Dr W concluded that the father has a Mixed Personality Disorder and a pattern of recurrent episodes of Major Depressive Disorder.  Dr W opined and it remains his opinion, that the father’s personality disorder is the “main factor to his dysfunction.”

7. In his second report Dr W said:

   There is now overwhelming evidence of [the father] displaying Paranoid Personality Disorder, and as is often the case, some features of other categories of Personality Disorder.

   The other features being of Narcissism and Borderline Disorder. 

8. Dr W also said:

   Given his highly disturbed reactions when he feels cornered, I cannot have a firm opinion as to whether he in addition has bipolar disorder.  I consider it as possible that at the time of the siege, that rather than his being hypomanic as a response to antidepressants, the episode was another highly dysfunctional response coming out of his paranoid personality disorder, his behaviour possibly exacerbated by alcohol and marijuana. 

9. It is Dr W’s opinion that the father does not accept responsibility for his “periods of highly disturbed behaviour” and lacks insight into his disturbed thinking.  Nevertheless, because Dr W considered the father’s behaviour had “probably not directly affected his children in an adverse manner” and the children want more time with him, he recommended that they have unsupervised time which would gradually increase to three weekends in four.  Unless such an outcome was ordered Dr W said that the father’s disturbed behaviour would continue.  In relation to the father’s level of disturbance, Dr W said the father came within “the category of aggrieved fathers who at times behave in a seriously dangerous manner when Family Court findings go against them.  Often the motivation for such behaviour is to make people suffer for what they have done to him”.  According to Dr W it did not appear possible to make a decision “that will stop all discord, while also fully protecting the children”.  It is his assessment that this is a low level risk which does not constitute a threat of physical harm to the children.

10. Notwithstanding the children’s undisputed affection for the father, the mother considers unsupervised time would expose them to an unacceptable risk of psychological and possibly physical harm.  Central to the mother’s concerns is her belief the father suffers a mental illness or personality disorder into which he lacks insight.  She points to his suicide attempts, the siege, family violence, demands for reconciliation, erratic and emotionally abusive behaviour variously directed towards her and the children as examples of the type of behaviour she says warrants supervision.  She highlighted that she tried to establish a cooperative post-separation parenting arrangement which she said not only failed but adversely affected the children and her, both personally and caused her to struggle in relation to her parenting capacity.  In the period since the children’s time with the father has been reduced, she says their behaviour initially deteriorated but has now significantly improved as has their relationships with her.  As to the latter there is no dispute that the father belittled the mother to the children and blamed her for the separation and the difficulties which befell the family.  The mother is concerned these pleasing and necessary improvements in the children’s wellbeing would be lost if the father embroils them in what she regards as his disturbed thinking and behaviour.

11. The father described his behaviour towards the mother and children as “horrific”.  According to him, his “horrific” behaviour towards his family was evident well before the parties separated and continued thereafter.  Whether this acknowledgement of disturbed behaviour reflects his genuine belief or is conceded for perceived forensic advantage as evidence of insight, will be discussed further.  In any event, the father highlighted that following a back injury, he stopped paid work and the mother became the primary income earner for the family.  Thus, she worked full time and while she was at work he cared for the children. His point being that, notwithstanding his heavy use of painkillers, plus alcohol and cannabis use, as well as his emotionally manipulative behaviour, the mother was content that he play a significant role in the children’s lives.  According to him, it follows, that her evidence about his behaviour is exaggerated, that she behaved in a similar fashion or her parental capacity and judgment are impaired and certainly not superior to his; perhaps all three.

12. Since separation, both before and since the siege, the father has seen a number of psychiatrists who have expressed a variety of opinions in relation to his mental health.  However, other than by his current psychiatrist, amongst the psychiatrists there is a recurrent theme that he probably has a personality disorder and that there is something of a quandary about the significance in a diagnostic sense of the siege.  In relation to the siege, it is the father’s opinion that he was prescribed a toxic mix of anti-depressants (by Dr M in December 2009), which, when taken with alcohol and cannabis, caused a toxic psychosis.  This is consistent with the view expressed by his now treating psychiatrist (Dr D).  However, when the siege occurred the father was under the care of Dr M who initially diagnosed him having agitated major depression without psychotic features (2009).  Following the siege Dr M opined that the father probably has Bipolar disorder type II in relation to which he was hypomanic at the time of the siege (with Borderline Personality Disorder features) (February 2010).  After further months of treatment and consultations Dr M settled on a working diagnosis of him having a Borderline Personality Disorder complicated by mood swings, intermittent substance abuse and aggressive outbursts (May 2010). 

13. The father relied upon the opinion expressed by Dr M that he has a Bipolar disorder to avoid conviction in relation to charges arising out of the siege and to obtain release pursuant to s 32 of the Mental Health (Forensic Provisions) Act1990 (NSW) and the Mental Health (Criminal Procedure) Act 1990 (NSW). When admitted as an involuntary patient after the siege the admitting psychiatrist diagnosed the father as having a Narcissistic Borderline Personality Disorder. There was no evidence of hypomania which, according to both Dr W and Dr D, raises questions about the likelihood this was a Bi-Polar related event. Nonetheless Dr D agrees with Dr M that the father had been depressed (with which opinion Dr W agrees), that he developed a severe agitated major depression and that the siege related to the father’s antidepressant medication along with substance abuse. That said, Dr D agrees that the father has features of a personality disorder namely narcissism and borderline, but considers that these matters are not sufficiently embedded to be more than personality traits which need to be managed carefully.

1. The father rejects Dr M’s opinion that he requires ongoing medication (Lamotrigin) and long term psychiatric assistance.  It is the father’s contention that he is fully recovered (from agitated major depression and adverse reaction to prescribed anti-depressants) and thus ongoing psychiatric supervision or medication is unnecessary.  As to medication being unnecessary this is also Dr D’s opinion. Nonetheless the father is willing to continue to consult Dr D and cooperate with his recommendations as to how best to manage his mental health.  In this regard Dr D recommends regular psychotherapy for a number of years.  Whether the father can be relied upon to do this, even if ordered to do so is contentious.  In relation to this issue, his use of alcohol while taking prescription medication contrary to both medical advice and the terms of a bond is significant; as is his failure to take medication prescribed to assist his mental health.  It is also noteworthy that the father would appear willing to work with mental health and other professionals for so long as he agrees with their opinions.  Once disagreements develop there is a pattern of him looking elsewhere and threatening legal actions based upon negligence (Ms J (family therapist), Dr T (General Practitioner), Dr M and a Dr Y (neurosurgeon).  A lawyer who previously acted for him was sacked for alleged incompetence.  Baseless allegations of incompetence are now levelled at the doctor who treated him at Wollongong Hospital, the Independent Children’s Lawyer (“ICL”) and a federal magistrate.    

2. It is the father’s proposal that he and the mother have equal shared parental responsibility and the children’s time is shared equally fortnight about.  It is accepted that because the parties live close by an equal time arrangement is reasonably practicable.  Notwithstanding the father’s proposed orders he raised many serious issues about the mother’s parenting capacity and the children’s relationships with her family.  Included in his suite of proposed orders are numerous injunctions and machinery orders which he says are necessary to, for example, address the mother’s mental health, her “uncontrollable anger and aggression towards the children”[1], her “paranoid beliefs and behaviours”[2] and her “long term abuse of children”.[3]  It is appropriate to observe that the expert evidence does not indicate the mother suffers mental health difficulties.  That said she has struggled to cope with the father’s behaviour towards her and the difficult family situation which developed after the parties separated. While there is evidence she may have handled aspects of the children’s difficult behaviour better, as I will later explain, her actions could not reasonably be described as “long term abuse”. 

   [1] Exhibit B item 54

   [2] Exhibit B item 51

   [3] Exhibit B – Events time line

3. The father perceives no inconsistency between his array of allegations about the mother’s parenting capacity and his proposal that the children live with her two weeks in every four.  As will be discussed later, a pattern developed of him attempting to counter each issue raised about his behaviour and parenting capacity with similar allegations about the mother.  His allegations generally had little foundation and too often constituted a serious misrepresentation of the facts.  For example he countered evidence of serious family violence by him with an allegation he too was a victim of family violence.  The violence he alleged the mother perpetrated upon him was that she withheld affection when he needed her emotional support.  Baseless allegations of family violence were also made against the maternal grandmother.  Even if true, the mother’s behaviour did not constitute family violence either as that term is defined in proceedings under the Family Law Act 1975 (“the Act”) or in common use.    That even after these matters were discussed with him the father maintained he is a victim of family violence raised serious questions about the extent to which he sought to manipulate the mother and the Court.  It is feasible that this was a concomitant of a personality disorder or alternatively is merely an example of how he conducts himself even when fully recovered.  In this regard I agree with Dr W “… that what is important is not so much the diagnosis, but whether the problematic outbursts and protests are going to continue, and whether the problem is amenable to treatment” and Dr D that “...it’s not diagnosis that is so much important to the court, it’s the implications of behaviours and personal characteristics.” (transcript 27 May 2011)       

4. At the end of the hearing, the ICL submitted that the mother should have sole parental responsibility, that the children should live with her and subject to conditions, have unsupervised time with the father.  As to the latter, this involved incremental increases over a period of about six months which would ultimately result in the children spending time with the father each alternate weekend, on nominated special occasions, for half of each of the shorter school holidays and for one week in the annual Christmas school holidays.  A recurrence of abusive or harassing behaviour by the father would see his time with the children suspended.  The ICL supported the mother’s contention that the parties are unable to communicate effectively and submitted that equal time and shared parental responsibility would not be in the children’s best interests.  The children’s affection for the father and desire to spend more time with him, the mother’s willingness to support unsupervised time provided the father’s mental health is well managed, her apparent ability to care for the children notwithstanding his difficult behaviour and the low risk of physical harm towards her and the children, comprise the pivotal reasons for the orders proposed by the ICL. 

5. Omitting formal parts, the orders proposed by the ICL are set out below:

   3.That the mother is to have sole parental responsibility for the children: in relation to the care, welfare, and development of a long term nature involving the children to include but not be limited to issues about:

   3.1The education of the children both current and future;

   3.2The children’s religious and cultural upbringing;

   3.3The children’s health;

   3.4The children’s names;

   3.5Any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.

   4.That the mother is to have responsibility for making decisions as to the children’s day to day care, welfare and development during periods when the children are living with her.

   5.That the father is to have responsibility for making decisions as to the children’s day to day care, welfare and development during periods when the children are spending time/communicating with him.

   6.That both parties are to refrain from making critical or derogatory remarks about the other party or members of his or her family in the presence or within the hearing of any of the children and that both parties are do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either party or members of his or her family in the presence or within the hearing of any of the children.

   7.That each parent is entitled to attend all events involving the children including, but not limited to:

   7.1Sporting fixtures;

   7.2Extra curricular activities that allow for parental attendance or participation;

   7.3School functions and events that allow for parental attendance or participation.

   AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parents.

   8.That the father shall not communicate with the mother and the children by any means whatsoever.

   9. That in the event that it is necessary for either parent to communicate with the other parent they shall do so via a person nominated by the mother.

   10.That the mother and father shall ensure that they keep each other informed as soon as it is reasonably practical of:

   10.1Any medical problems or illnesses suffered by the children whilst in each parent’s care;

   10.2Any medications that have been prescribed for the children;

   10.3Any specialist medical appointments with any medical doctors, psychologists, counsellors, or therapists regarding the children;

   10.4Any social, school or religious functions which the children are to attend;

   10.5The details of any school(s) attended by the children;

   10.6The details of any sporting body(ies) that the children are involved in;

   10.7The residential address of each parent and particulars of others who may reside with the children;

   10.8Any other important matter relevant to the welfare of the children.

   11.That each of the parents is to provide full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the children.

   12.That each of the parents are to be permitted to liaise directly with the children’s school(s) and sporting bodies to obtain any necessary information about the children’s progress and that both parents are to authorise the school(s) and sporting bodies to facilitate this.

   13.That both parents are to provide the necessary authorities to the Principal of each school attended by the children to ensure that the school forwards to both parents copies of the children’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.

   14.That the children are to live with mother and including the following significant days:

   14.1 On Mother’s Day from 9.00 am until 6.00 pm should that already not be a day when the children are with their mother.

   14.2On Christmas Day 2012 and each even numbered year from 3.00 pm 25^th December until 6.00 pm on 26^th December.

   14.3On Christmas Day 2011 and each odd numbered year from 3.00 pm on 24^th December until 3.00pm on 25^th December. 

   14.4On the mother’s birthday from 3.00 pm until 7.00 pm should the children not already be living with their mother.

   15.That the father shall spend time with the children subject with his compliance to the following conditions:

   15.1 Whilst ever the father continues to consult with [Dr D], Psychiatrist, or such other Clinician as recommended by that Psychiatrist, and that he complies with all treatment conditions, attendances at appointments and the taking of prescribed medication, if any, as may be directed by his psychiatrist or other treating clinician, from time to time.

   15.2The father shall not consume or be affected by alcohol or any illegal substances, nor shall he smoke cigarettes in the presence of the children during any period of time between the father and          children;

   16.The father shall spend time with the children subject to order 15 as follows:         

   16.1For the next 3 months on each alternate weekend on Saturday and Sunday, daily, commencing from 9.30 am until 5.00 pm on each of those days. 

   16.2 Thereafter for a further 3 months on each alternate weekend from 9.30 am Saturday over night until 5.00 pm Sunday.

   16.3Thereafter on each alternate weekend from conclusion of school Friday until Sunday 5.00 pm.

   16.4On Father’s Day from 9.30 am until 5.00 pm should that already not be a day when the children are with their father. 

   16.5On Christmas Day 2011 and each odd numbered year from 3.00 pm 25^th December until 6.00pm on 26^th December.

   16.6On Christmas Day 2012 and each even numbered year from 3.00 pm on 24^th December until 3.00 pm on 25^th December. 

   16.7On the father’s birthday from 3.00 pm until 7.00 pm should the children not already spending time with their father. 

   16.8Commencing in the year 2012, for the first half of each of the shorter school holidays to commence from the conclusion of school on the last day of the school term and to conclude at 5.00 pm on the seventh day of  the school holiday period. 

   16.9Commencing in the year 2012, in each of the Christmas school holidays for 7 days commencing at 9.00 am on 1^st January and concluding at 5.00 pm on the 8^th January. 

   17.That in the event that it is alleged that the father has at any time failed to comply with paragraph 6, 8, 15 and 19, then upon the filing of a consequential application seeking further orders, the father’s time with the children in accordance with paragraph 16, shall be immediately suspended, until such further Order is made by a Court arising from that application. 

   17.1In the event that such application is withdrawn, dismissed or otherwise not proceeded with, then          time in accordance with paragraph 16, shall be immediately reinstated. 

   18.That changeover is to take place at the [Z Organisation] Contact Centre Wollongong unless the time for changeover coincides with the conclusion and/or commencement of school, then changeover shall take place at the children’s school

   18.1For changeover at other times, the mother is to arrange for her agent to deliver and collect the children to and from the father’s home AND on each such occasion the father shall remain inside his place of residence. 

   19That the father be restrained from discussing with or showing to the children or any other person any document or information relating to these proceedings.

   20.That the mother continue to make arrangements for the children to continue counselling with [Z Organisation] or such other counselling organisation as may be recommended from time to time.

   21.That the mother and Independent Children’s Lawyer from time to time may request from [Dr D] or such other clinician as the father has been recommended to consult details of the father’s treatment AND this order is authority to the Mother and/or the Independent Children’s Lawyer to obtain such information. 

   22.That the Independent Children’s Lawyer is to provide to [Dr D] a copy of the orders, or such other treating clinician to whom the father has been referred to by [Dr D].  

6. Few of the orders proposed by the ICL were the subject of mutual consent.  Both agreed with proposed Orders 4, 5, 6, 12 and 13.  It will be apparent that unfortunately they were as far apart at the end of the hearing as they were when it started.

Background facts

1. Unless stated differently throughout these reasons, the balance of probabilities will determine findings of fact (s 140 Evidence Act 1995 (Cth)). The father was permitted to give evidence about numerous events during cohabitation which he said showed the mother’s indifference to his ill health as well as incidents which demonstrated her occasional cannabis use and occasional misuse of alcohol. Although the relevance of these matters was not clear, it was possible that they might be relevant, therefore he was also permitted to cross-examine the mother and other witnesses (for example the mother’s sisters) on these topics. By the end of the hearing, however, it was clear that although the father is aggrieved about his perceived poor emotional, and at times practical support from the mother and that she occasionally used cannabis and drank more alcohol than is wise, these matters do not assist the Court’s determination about the children’s best interests and thus will not be traversed in these reasons for judgment. Nor is it necessary or useful to recite every email, SMS message and telephone conversation presented in evidence. Instead the approach which has been adopted has been to refer to those which provide a flavour of these types of communications.

2. The father was born in 1964.  He is 47 years.

3. The mother was born in 1972.  She is aged 39 years.

4. The parties commenced cohabitation in 1997 and were married in August 1998.

5. C was born in June 1999.

6. In late 2000, the father suffered a lower back injury following which he did not have significant paid work for years.  He suffered serious episodic pain; in other words there were periods when his back pain was debilitating and periods when he was asymptomatic.  In some documents the father said he was injured when he lifted C from his cot.  In others he said the injury occurred at work.  From this time the mother became the primary income earner for the family, in relation to which there were periods when she worked two jobs.  The family’s financial position was tenuous at best and at various times the mother obtained financial assistance from her family to pay the rent.  It is fairly clear that by at least late 2000 the father was depressed and struggled to cope.  During his first hospital admission following a suicide attempt (November 2008) the father produced a letter which sets out the medication and drugs he took from when he was injured until his final back operation.  He said that when the parties lived at B Street, he took Panadol, cannabis and Valium.  He accurately pointed out that the mother was unaware he took Valium.  When they moved to Wollongong Suburb 1 he took Morphine, Valium and cannabis.  In addition, after the mother left for work he took five Nurofen, sometimes more during the day and another five before retiring.  The Nurofen were hidden from the mother in a shed.  One day he took six morphine tablets.  Although he did not take all of these drugs and cannabis every day, it appears that he took heavy doses of prescribed and non prescribed drugs most days which he regularly supplemented with cannabis and alcohol (at least one and often two large bottles of beer a day).  There were occasions when he consumed much more alcohol.

7. While in hospital for back surgery he was offered but refused drug rehabilitation.  Then, but not now, he was able to genuinely acknowledge what is clearly correct, that “throughout the whole time I was crook [the mother] supported me and our children in a practical sense.  You paid the rent, dressed our children and put food on the table….What you did was simply stunning.  That was a halva (sic) feat.  I don’t think I would have had the strength to do it.”

8. L was born in December 2000. 

9. In October 2004, the father underwent surgery which reduced his back pain and improved his mobility. 

10. In March 2005, the parties consulted a psychologist for family therapy (Ms J) who they then saw separately and together on an ad hoc basis for about four years.

11. V was born in April 2005.

12. In mid 2005, the father suffered a relapse of his back injury.

13. According to the father, he became suicidal for the first time in mid December 2005.  The father attributes this to chronic back pain, which there is no doubt he suffered.  The father’s back deteriorated further in January 2006, following which on and off he spent weeks in bed.

14. In March 2006, the father underwent surgery on his back which successfully reduced his back pain and since when he says he has been physically well.  After a week in hospital he was discharged home on 25 March 2006.  According to the father he no longer needed or took medication to manage pain. 

15. Two days later the mother separated from the father for the first time.  Contrary to his wishes she retained the three children (O had not been born) and for three days he did not know where they were.  In total the mother deprived the father of contact with the children for four days.  Although this distressed him there is no evidence the children were distressed and I infer they were not.  The mother and children resided temporarily with her father.  Within a short period the parties established an arrangement which essentially saw the children’s time divided equally; that is on a movable three days with one party and four with the other.  While with the father they resided at the family’s rented home and when with the mother, at her father’s home.

1. Within a couple of months of separation the father obtained paid employment and to the mother he seemed more settled.  By the beginning of June 2006 they were reconciled and the mother returned to the family home.  With both parties in full time employment they shared the children’s care.  Notwithstanding his improved physical health and the parties’ reconciliation the father says he remained “in a very depressive state”. 

2. With Dr M the father subsequently discussed how being depressed affected him.  These were accurately summarised by Dr M as the father having the following symptoms:

   ·severe problems with insomnia;

   ·pervasive depression;

   ·loss of interest;

   ·social withdrawal;

   ·hopelessness and despair;

   ·problems with suicidal ideation and at one point was seriously considering killing himself;

   ·significant problems with psychomotor agitation and inattention to the point where he was ready to snap at anyone who got in his way.  He became hostile and difficult to live with and this took a significant toll on his marriage.

3. So that it is clear the symptoms described above were present before and after the father’s 2006 back surgery.  This is consistent with the mother’s evidence about the father’s behaviour, which is accepted.

4. O was born in February 2007.

5. By the time O was born the father was again unemployed.  In addition to his work as a tradesman the father sees himself as an inventor and, as had been the situation after his 2000 back injury, he embarked on another invention period which took up most of his day in his home office.  The mother took O with her to work and, while she was there, when the other three children were not in day-care or school they were cared for by the father.  When required, which was not infrequent, the mother’s sister and other members of her family helped.  That said it is not entirely clear when the children started day care or preschool.  At that time, V was only two years old and it would appear likely that she was predominately cared for during the day by the father.

6. At the mother’s behest the parties separated again on 2 November 2008.  Again, she moved in with her father.  Although separated both parties were substantially involved in the children’s care, the precise configurations of which are unclear. 

7. Although the father denies the parties were separated (he finally conceded a trial separation) and claimed that the mother left the family home to care for her undisputedly ill father, his suicide attempt on 25 November 2008 is consistent with the mother’s evidence that he was distressed by her decision to separate.  So that it is clear, this was long after the father’s successful back surgery and thus was not influenced by ongoing pain.  On that occasion, while the children were in the mother’s care, the father sent her a number of text messages to the effect that “I can’t do this any more.  It’s too hard”.  When, at about 10.00 pm the mother was unable to contact the father, she put the sleeping children into her car and drove to the family home.  There, she found the father effectively comatose.  She found an empty packet of prescription pain relief medication, Endone, upon which he had overdosed.  When she was unable to waken him, the mother telephoned the emergency line who dispatched an ambulance.  When the father refused to accompany ambulance officers to hospital, they called police who persuaded him to go.  The mother took the children to a friend’s home and, without them, went to the hospital where the father was taken.  He was seen by the duty psychiatrist and observed by Emergency Department staff.  Against medical advice he left the hospital.   The hospital records show that the father told them that the parties separated three weeks earlier.  The mother waited at the hospital and when he was discharged in the early hours of the morning she took him to his home.

8. Following the father’s discharge, the parties continued to share the children’s care and effectively instituted a week about living arrangement.  By then the father had paid work.  It was during this period that the father began to say things to the children such as “your mother has left us”, “your mother is no longer part of the family”, “you only have to listen to your mother and me – no-one else. No-one else can tell you what to do”.  According to the mother the children became confused and, when during school holidays and other times it was necessary that others (her family) assist with their care, the children were angry, defiant and unhappy. 

9. At the mother’s behest, on 12 May 2009 the parties attended a joint session with their family therapist.  The purpose of this meeting was so that the mother could tell the father that she did not want to reconcile.  That afternoon, he was supposed to collect the children from the school bus.  At about 3.00 pm he sent the mother a text message to the effect that she should meet the children.  This she did and over the course of the next two to three hours she received a number of text messages from him which made her concerned that he may again attempt suicide.  With the children in the car she drove to various places in the hope she would find him.  At about 6.00 pm, she received a text message which said “tried hard to be a good husband.  Please look after my children.  Party hard.  I will always love you”.

10. The mother arranged for a friend to mind the children and, with another friend, went to the police.  Police eventually found the father drinking whilst seated in his car at a beach.  The father was involuntarily admitted to hospital.  The father had also sent text messages to his brother.  His brother flew down and, along with the mother, visited the father in a psychiatric ward the following day.  At this meeting the father was verbally abusive to the mother for which he apologised the following day.  On that latter occasion, the mother reinforced with the father that their marriage was over and that it was time for them to move on.  Against medical advice he discharged himself.

11. With the mother’s encouragement, on 22 May 2009, the father and C had a seven day holiday with the father’s brother in Far North Queensland.  I agree with the father that the mother would not have agreed that he take C if she believed their son was at risk.  Although the mother was comforted by the presence of the father’s brother, her decision to agree that C accompany the father, whilst well motivated towards the father is an example of how until the siege, she failed to appreciate how disturbed the father was and the effect of this upon his parenting capacity.  In any event, nothing occurred during this week which would concern.

12. Following the father’s return from Far North Queensland he resumed full time employment and the parties continued the children’s week about living arrangement.  On the weeks that the children were in his care, he delivered them to the mother by about 7.00 am and she got them to school.  Their daily contact became debilitating for the mother with the father maintaining constant conversations, in the children’s presence, in which he told her “this is all your fault” and monologues about how she should “fix our family”.  Another not infrequent comment at changeover was “don’t worry, daddy still loves you.  Mummy is not part of our family”.  It will be recalled that the children were aged between 2 and 10 when subjected to these remarks.  His actions were emotionally abusive and, although he later realised that they were inappropriate, I infer that at that time they were designed to undermine the children’s relationship with the mother and for them to align with him.

13. At one changeover, while the children and mother were in her car he asked for her mobile telephone which she refused.  Then the father tried to grab her keys from the ignition.  In reaction to the escalating argument, the children were screaming in the back of the car.  The mother managed to dial the emergency number but the father refused to permit her to speak.  As soon as C got into the car the mother sped away.  This was an unprovoked aggressive act by the father which frightened the mother and children.

14. On 5 December 2009, when the mother delivered V to the father, in the presence of the two younger children, he instigated yet another discussion about reconciliation.  Again the mother informed him that this would not occur.  He became extremely angry and began yelling at her.  He told her not to come near him again and hit the side mirror of the car, which broke, in which the mother and children were seated.  He reached into the car and repeatedly smashed his fist into the dashboard, steering wheel, ceiling and lights.  O was screaming.  The mother leaned over to the passenger side in an attempt to stay out of his way.  The father had cut himself on the mirror and wherever he struck he left blood.  At some stage the father grabbed the mother’s keys which he threw down the driveway.  When she got out of the car to retrieve her keys, he grabbed O.  L saw what was happening and while sobbing, came to the car.  The mother hugged her through the window while the father screamed “get back inside”, which L did.  Without the children, the mother left and reported the matter to police.  This was an unprovoked attack by the father which frightened the mother and children.

15. The father consulted Dr M for the first time on 9 December 2009, the catalyst for which was the 5 December 2009 incident.  Dr M commenced the father on a combination of Avanza, Cymbalta and Lamotrigine.  Essentially, these are mood stabilizing medications which quickly achieved, according to the father, a significant improvement in his mood and general sense of wellbeing.  The father accepted and was pleased with Dr M’s working diagnosis that he suffered “agitated major depression” in relation to which he appeared to be responding well to the treatment regime.  His point being that he and others could now understand the reason for his behaviour and be confident that his “horrific” behaviour was a thing of the past.  The father related his depression to his back injury and developed a strong belief (which he maintains) that he and the family were all victims of what followed.

16. There followed numerous SMS messages to the mother to the effect that they should reconcile, that he was recovered and she need not be concerned about erratic and difficult behaviour from him in the future.

17. On 10 December 2009, police obtained an interim apprehended domestic violence order (“AVO”) against the father for the mother’s protection.  The AVO provided that:

    1a.[The father] must not assault, molest, harass, threaten or otherwise interfere with [the mother] or a person with whom [the mother] has/have a domestic relationship.

    1b.[The father] must not engage in any other conduct that intimidates [the mother] or a person with whom [the mother] has/have a domestic relationship.

    1c.[The father] must not stalk [the mother] or a person with whom [the mother] has/have a domestic relationship.

    11.[The father] must not destroy or deliberately damage or interfere with the property of [the mother].  (mother’s affidavit, p 60) 

18. It can be seen that the AVO did not prevent the father from communicating appropriately with the mother or spending time with the children.  The AVO application was listed for hearing on 26 February 2010.

19. The father saw Dr M again on 17 December 2009 and 6 January 2010.  Between these periods the father’s brother suicided which greatly upset him.  During these interviews, the father was optimistic that the parties would reconcile, he had returned to work, he said and appeared to be reasonably settled.  At the consultation on 6 January 2010 Dr M thought the father was doing extremely well.  So that it is clear, at this time there was no evidence of hypomania or adverse reaction to, relevantly Avanza.  Dr W expressed surprise that if the father came within the about 1% group of people who react adversely to that drug, that this was not evident sooner, that is, before the siege.  Notably while Dr D views prescription medication toxicity, along with the father subsequently taking cannibis, alcohol and Benzodiazepin (none of which were prescribed or recommended by Dr M) as contributing to the father’s behaviour vis the siege, he did not explain why medication toxicity had not been evident in the month preceding the siege. 

20. In any event, Dr M instructed the father to continue his current medications (referred to above) and arrangements were made to confer again in three months time. 

21. In the meantime, Dr M provided a written report to the father’s general practitioner (Dr T) a copy of which was provided to the father who distributed it amongst the parties’ family and friends.  He wrote a long letter to the mother’s mother in which he implored her to recognise that he, his reputation, the mother and children were victims of “this disease” in relation to which he was “well on my way to recovery”.  He explained that he did not “deserve to have my wife, my family taken from me because of an [back] accident”.  He apologised to the mother’s mother for letting her down and sought her support to recognise that he had “earned the right” to reconcile with the mother.  In the final paragraph he said “now that it’s [his erratic and difficult behaviour] over, I so desperately hope that you can and will” (mother’s affidavit, annexures 41-52).

22. Dr M was right in his concern about the father’s optimism that the parties would reconcile and his approach to the mother.  Notwithstanding her persistent indications that she would not resume the marriage, orally and in writing, the father continued to force the issue.  Set out below is the type of sentiment used by him:

    ·SMS dated 20 December 2009 – Then I guess I’ll just have to show you how wrong you are then ah.  So hang on to ya hat lovey cause your about to enter a whirlwind weither you like it or not but I intend to have both my wife and my family back.  I’m not going to allow this hideous thing to take from me the 2 things I most value in the world above everything else.  Its done enough damage to us all already and I’ll do it in such a manner that you will be delighted to engage And that you can absolutely bank on.

    ·SMS dated 28 December 2009 – Ive been thinking this through quite thoroughly for the last couple of days now and the only conclusion I can come to is your behaviour is really quite bizar.  Given what you now know as the real reason behind all the past trouble, for our family to be whole again you would have to admit that you have made a grave mistake along with all that would flow from that admission and instead of doing so you would rather see our family ripped apart.  You seem to be tradeing in our family so you don’t have to be embarrassed.  That really quite bizar behaviour don’t you think [the mother’s first name] an you thought I was the crazy one go figure.  Admit your wrong [the mother’s first name] and then lets get on with the business of raising a family or are you just not a big enough person to do that.  And don’t give me that stuff about you don’t love me, you know thats crap as much as I do, my god [the mother’s first name], when are you going to stop being so stubborn – anyone else in the entire world would do this in a flash, except it seems you – why, whats so wrong with our family that you would rather trade you not being embarrassed for our family. Id love an answer, but I reckon you might just be to stubborn to give one.

    ·SMS dated 28 December 2009 – Why are you being so stubborn and pigheaded about all of this [the mother’s first name], you know as well as what I do what the real reason behind the troubles of the past 8 years where.  For Christ sakes [the mother’s first name] your husband got sick, really sick.  This is no different than if I had cancer or the like.  Would you treat me and our family like this if I had got cancer and then recovered.  I have every right to expect my wife to help me pick up the pieces and fix our family after one of us has been so incrediably sick.  Do you really think I would do this to you if it were you that got sick.  Do you really think I’m ever going to let that happen again, ya got rocks in ya head if you do.  Do the right thing here [the mother’s first name], let us all have our family back, very slowly I grant you but let it happen – our family is to beautiful to let it go to waste because you can’t accept that you may very well be wrong – and stop with the not talking to me stuff this is important and it really does demand that you communicate or are you to embarrased that you cann’t.  I really don’t care who or what got me sick, I’m not interested – the only think I care about is our family and YOU, ya great big twit – and don’t give me this love crap, you know as well as I do the love will flow between us again it just takes some time a bit like trust. (spelling as per original) (wife’s affidavit, p 9)

23. The father fell out of a tree at home on 11 January 2010.  It would appear he suffered a soft tissue injury in relation to which he was prescribed pain killers.  The following day he sent the mother flowers which he looked for at her office when he collected the children that afternoon.

24. The week commencing 10 January 2010 the children were in the father’s care.  His soft tissue injury was not sufficiently severe to prevent him going to work and each morning that week, as usual, he delivered the children to the mother.  When he arrived to collect the three elder children at the usual 3.30 pm collection time again he harassed her about her obligation to heal the family, reconcile and that she caused his depression. Angered by her refusal to consider reconciliation, he left without the children. 

25. At 10.30 that night, the father telephoned the mother with his conversation centred upon the need that the parties reconcile.  The mother hung up and turned her telephone off.  When she awoke the following morning, she saw several missed calls from the father and another from a mutual friend (Mr E) which had been made at 12.30 am.  The mother spoke to Mr E who informed her that he had received a call from the father to the effect that he had enough explosives in the house to destroy the suburb and could not go on.  Concerned for the father’s welfare, with the children in the car, the mother drove to his home.  She parked the car some distance from the home so that the children would not see the father or be seen by him.  The mother found the father smoking in bed.  There was an empty scotch bottle and empty beer bottles on the floor.  When the father saw her he told her to “piss off”.  She suggested, but he did not agree, that she call his psychiatrist.  The mother left and not long after telephoned Dr M’s surgery.  Dr M’s surgery contacted the local Mental Health Team who in turn contacted the mother.

26. Mid morning the mother received an SMS message from the father asking that she return to the house.  She telephoned him and advised that the Mental Health Team was on its way and again asked him to ring Dr M’s surgery.  The father responded “if they step one foot inside this house it will blow.  It’s all wired”.  The mother said “I was there this morning and the house was not wired.”  The father said “I fixed it since then”, which in one sense he had.

27. The mother relayed this conversation to the Mental Health Team.  Because of the nature of the father’s threats police were informed and attended in large number.  In all, that morning the father sent the mother 10 SMS messages, in effect, demanding that she return to the home.  He made similar demands to police negotiators.  The mother accepted police advice that she not enter the property and leave the negotiations to them.  The siege ended that night but only after a huge police and emergency services presence and evacuation of the neighbourhood. 

1. Although I accept that their prior equal time arrangement occurred when the father was depressed and before he commenced psychotherapy and thus its failure cannot be determinative of this aspect of the father’s application; his recovery from depression and attendance at psychotherapy does not mean equal time would probably work now.  In addition to my concerns expressed about the parties’ inability to communicate and problem solve, equal time makes the children too vulnerable to attempts by the father to have them align with him.  Unfortunately for the father, the Court is strongly satisfied that the best way for the children’s relationships with both parents to be maintained in a meaningful way and for their emotional and psychological needs to be met, is that they have significantly more time with the mother than they do with him.  Relevantly, this will buffer and thus soften the impact of any denigratory and undermining remarks which may be made by the father.

2. Both parties are weary of litigation and their disputation has clearly taken a heavy toll on them and the children.  Further litigation is likely to exacerbate the tensions between the parties which, in turn, is likely to result in further pressure on the children.  Irrespective of what orders are made there is a risk of future litigation.  Because I am strongly satisfied that the parties would be unable to implement orders along the lines proposed by the father, these involve a high probability of future litigation.  Orders along the lines proposed by the mother make future litigation virtually certain.  As best I can, the orders made will be designed with the aim they might endure and to moderate the risk of future litigation.  The risk of future litigation, however, is not a matter which warrants significant weight.

3. There is considerable overlap between s 60CC(4) and s 60CC(4a) with s 60CC(3). There are no further matters which require consideration. However, so that it is clear, I accept the mother has made decisions about the children without consulting the father. Although he wished to be more involved, relationships between the parties since the siege, in particular, have been extremely difficult and decisions were not able to be discussed appropriately. It behoves the father to reflect more carefully upon his role in how this situation came about.

Conclusion and construction of the orders

1. When making a parenting order, the Court must apply a presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility. The presumption does not apply in the circumstances specified in s 61DA(2) and may be rebutted if the Court is satisfied its application would not be in the child’s best interests. Because of my findings about family violence the presumption does not apply. Notwithstanding this, it is appropriate to consider whether an order that the parties have equal shared parental responsibility would be in the children’s best interests. That this is a significant issue is evident by the types of decisions which have required court intervention and upon which I am required to determine. These have included serious disagreements about the children’s living arrangements, medical treatment, contact with extended family and financial support. Although many of these matters will be resolved in this hearing, the magnitude of contentious issues and litigation in this and other courts since late 2009, strongly indicates that the parties will continue to disagree on many major parenting matters. Central to their capacity to resolve disagreements, is their capacity to communicate and problem-solve.

2. The gravamen of my findings in relation to these matters is that the parties have a chronic inability to constructively communicate and problem-solve matters in relation to the children.  In addition, equal shared parental responsibility would increase the risk of ongoing parental conflict which, in turn, would be stressful for the parties and the children.  Even with the father engaged in ongoing psychotherapy and with counselling support for the mother, I am not satisfied that the parties’ capacity to communicate is likely to improve, even in the long term.  The probability of unpleasant conversation is considerably higher than the prospect of child focussed discussions.  The sad reality is that important parenting decisions would continue to be fertile ground for dispute with the children’s interests held hostage to the parties’ inability to communicate.  Almost certainly, decisions which would need to be taken in a timely way would languish unresolved.  Such a situation is untenable for the children and regrettably, I am strongly satisfied that their best interests require an order for sole responsibility.

3. Having determined that there will be sole parental responsibility, the children’s living arrangements are “at large” as those words are understood in Goode & Goode, and to be determined in accordance with their best interests. This necessarily involves consideration of the Court’s findings discussed in the context of s 60CC albeit, in the interest of brevity, they need not be fully repeated.

4. Although phrased slightly differently, I am satisfied that with each party the children enjoy a mutually reciprocated affectionate relationship.  It is fundamentally important to each child’s sense of identity and happiness that their relationships with their parents continue in a meaningful way.  While the children favour an equal time outcome, for the reasons already given, they do not have sufficient maturity for that component of their views to warrant significant weight.  On the other hand, their views in favour of an ongoing meaningful relationship with each parent are important.  There is strong evidence that the father undermined the children’s relationship with the mother over a reasonably lengthy period during which he sought to manipulate her and them to his desired outcome. 

5. While the commencement of this behaviour coincided with the father suffering a depressive illness, it continued after his depression was in remission.  The father’s depressive illness is episodic and may recur.  When depressed, the father is likely to struggle to meet his own needs, let alone the children’s.  Although the father will continue to see Dr D, the father lacks insight into the reasons why this is important for him to function well.  Nor, even if ordered to do so, can the Court be completely confident that the father will co-operate with Dr D or, if Dr D becomes unavailable, such other health professional to whom the father may be referred.

6. In relation to this issue, it will be recalled that on a number of occasions the father discharged himself from hospital (where his mental health was the medical issue) against medical advice.  He stopped taking Lamotrigin even when a bond required him to comply with Dr M’s direction that he do so.  From Dr M and Dr D the father withheld information relevant to how he was functioning. 

7. It follows that the father’s continued attendance for psychotherapy does not mean that the risk of his emotionally abusive behaviour towards the mother and in the children’s presence has forever abated.  As has already been explained, I am strongly satisfied that there exists a continuing and long term risk of episodic, angry outbursts by him towards the mother, as well as an ongoing risk of behaviour by him which is detrimental to the children’s relationship with the mother.  Simply put, the more time the children are with him the higher the risk.  Thus, not only am I satisfied that the parties lack the capacity to make an equal time living arrangement work, if the children spend time with the father unsupervised, this needs to be structured so as to provide a time buffer for the mother and children.

8. There is ample evidence that the children are settled in the mother’s care which is a significant improvement upon the situation prior to mid-late 2010.  In short, the children are better behaved with the mother and maternal relatives.  They have adapted to less contact with the father and generally made pleasing gains in their overall adjustment.  I am not satisfied that changing the children’s circumstances so that they spend a significant amount of time in the father’s care could be achieved without jeopardising their emotional and psychological wellbeing.  The mother, to a far greater degree than the father can, is better able to meet the children’s emotional and psychological needs.  This is an important matter which carries significant weight.

9. Whether the father’s time with the children should continue to be supervised and, if not, the pathway to unsupervised time has been a difficult and finely balanced decision.  I have placed real weight upon his trust in Dr D and the benefit for the father from psychotherapy.  The lengthening gaps between abusive outbursts, as well as the father’s capacity to discuss matters which might increase his level of insight are evidence of the point.  Orders which would continue supervision would probably fail once supervision at the contact centre was no longer available.  As was explained previously, the parties cannot afford private supervision and supervision by family or friends is contraindicated.  I am also satisfied that limited supervised time would unreasonably deprive the children of the continuing benefits of a meaningful relationship with the father and the right to spend time with him on a regular basis.

10. Thus, there will be a regime which moves from supervised to unsupervised time and, on a stepped basis, increases the children’s time with the father.  Because the father is likely to be distressed about the outcome, unsupervised time will not commence until the end of Term 3 this year.  This will give him and Dr D a solid period within which to work through the father’s disappointment and minimise aggressive and manipulative behaviour by him with the children and towards the mother once unsupervised time starts.  Because the father’s view that his approach is the only one consistent with the children’s best interests, his disappointment will be deep and brief psychotherapy would probably be insufficient. 

11. Once unsupervised time commences, it will increase generally along the lines proposed by the ICL.  Minor variations to the proposed orders have been made in the interests of clarity and in the hope this may avoid further disputation.  I agree with the ICL that periods longer than seven days are contraindicated.  However, provision is made for the children to spend time with the father on their birthdays, which it is accepted is important for the children and father.  Other important days, namely the father’s birthday, Christmas and Father’s Day are also provided for.  Some of these special occasions will be shared annually while others will alternate.  Although in relation to the children’s birthdays this means the father can only be sure he will spend time with them every second year, it was difficult to make provision for both parents to share these days annually without requiring one party to celebrate the birthday before school or increasing the rate of changeovers to too high a number.

12. These orders strike the right yet difficult balance between ensuring the children have the benefits of meaningful relationships with both of their parents and protection from the father’s emotionally abusive and manipulative behaviour.  In addition the low risk of family violence is contained to acceptable levels.

13. The remaining orders are self-explanatory and, in essence, are designed to facilitate the provision of important information in relation to the children and movement between the parties.  I have not ordered, as was proposed by the ICL, an automatic suspension of the father’s time with the children if he fails to comply with conditions for it.  It is preferable that any decision to continue or suspend the father’s time is informed, not only by his alleged non-compliance, but also the parties’ and children’s circumstances at the time.  That said the mother should take advice about the circumstances in which she need not comply with a parenting order.

14. Nor is provision made for the father to attend all of the school and extra curricular activities identified in the ICL’s proposed Order 7.  If the father does attend the mother says she will not.  Once unsupervised time commences, the father will be able to attend the children’s weekend sporting and extra curricular activities at least fortnightly.  The order, as framed by the ICL, would potentially have the parties and children in close and frequent contact.  There is too high a risk that this would result in conflict between the parties and stress upon the children.  Thus, provision is made for the father to attend special events and other specified events only.

15. There are tight constraints upon the father which mean he cannot directly communicate with the mother and can only communicate with the children as provided in the orders.  Telephone communication is not provided for.  At different times each party felt the telephone communication did not work and, eventually the children settled into their not having telephone contact with the father.  Its reintroduction would probably increase conflict with disagreement (possibly also litigation) were it to again fail.  As far as possible changeover will take place at the contact centre or school.  Where this is not possible it will occur outside the father’s home but on condition that he remains in his house.  At her election, the mother may have another person collect or deliver the children.  An order which would require the father to deliver or return the children to the mother’s home on these occasions, while equitable, could result in disagreements and an invasion of her privacy.  Each party will be required to nominate a third party through whom each can communicate matters required by the orders.  The types of matters to be communicated are specified and are designed to ensure that each party has relevant and necessary information in relation to the children. 

16. For the avoidance of doubt, orders are made which require the father to continue to attend Dr D or his nominee and the father’s time with the children is conditional upon his compliance with the order and his treating psychiatrist’s recommended treatment.  The father will be ordered to attend Dr D no less than monthly, which is the current schedule of treatment, until the end of 2013.  This is a period of great change for the father and anything less than monthly, face to face meetings with Dr D, would probably be insufficient.  Thereafter, the father is required to attend Dr D (or his nominee) as that person recommends.

17. For these reasons, I make the orders identified at the start of this judgment.

I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 3 February 2012.

Associate:     

Date:              3 February 2012