Betros & Betros - [2021] FamCA 378

FAMILY COURT OF AUSTRALIA
Betros & Betros [2021] FamCA 378

File number(s): PAC 3685 of 2011

Judgment of: HANNAM J

Date of judgment: 9 June 2021

Catchwords: FAMILY LAW – JURISDICTION – Whether there is a significant change in circumstances to warrant a fresh hearing in respect of parenting arrangements – Consideration and application of the rule derived from Rice & Asplund (1979) FLC 90-725 – Best interests of the children – Where the applicant father seeks to revisit existing parenting orders relating to the children’s time with him – Where both the mother and ICL seek orders that the father’s application to reopen proceedings be dismissed – Where the Court is not satisfied that there are changes in circumstances sufficient to justify reopening proceedings – Father’s application to reopen proceedings dismissed – Where it is otherwise appropriate to make an order that the ICL explain to the children the supervision requirement of their time with the father, as recommended by the family consultant.

Cases cited:
Betros & Betros [2016] FamCA 225

Betros & Betros [2017] FamCAFC 90

Marsden & Winch [2009] FamCAFC 152

Miller & Harrington (2008) FLC 93-383

Prewett & Mann [2013] FamCAFC 130

In the marriage ofRice & Asplund (1979) FLC 90-725

Number of paragraphs: 163

Date of hearing: 14 – 15 December 2020

Place: Parramatta

Counsel for the Applicant: Ms Conte-Mills

Counsel for the Respondent: Ms McCarthy

Counsel for the Independent Children's Lawyer: Ms Seric

Solicitor for the Applicant: Phillip A Wilkins & Associates

Solicitor for the Respondent: Womens Legal Services NSW

Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers
ORDERS

PAC 3685 of 2011

BETWEEN:
MR BETROS

Applicant

AND:
MS BETROS

Respondent

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

9 JUNE 2021

THE COURT ORDERS THAT:
1.The Independent Children’s Lawyer is to explain to the children the Orders made in 2016 with respect to their supervised time with their father and in doing so, may be assisted by any person with suitable expertise as the ICL considers appropriate.
2.The father’s Initiating Application filed 1 March 2017 and any Amended Initiating Application is otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Betros & Betros has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION

The parties (“the mother” and “the father”) have a significant history of litigation in relation to the parenting arrangements for their three children who are now aged between 12 and 15 (“the children”).
The first tranche of litigation resolved by way of final orders made with the parties’ consent in the Federal Magistrates Court (as it was then known) in 2013. Not long after these orders were made, the father commenced further proceedings which proceeded to final hearing before me in late 2015. Final judgement was delivered in April 2016. On that occasion orders were made (“the 2016 orders”) providing that the mother hold sole parental responsibility for the children and that the children live with her and spend supervised time with the father at a contact centre every second month. In making the 2016 orders, I considered that the children were at risk of emotional and psychological harm if they were to spend unsupervised time with the father as a result of his history of family violence and in particular, his coercive and controlling behaviour in attempting to portray the mother in an extremely negative light.
In the 2016 orders, it was also stipulated that the father was at liberty to make a fresh application to consider the lifting of the requirement that the children’s time with him be supervised, upon him engaging in therapy for at least 24 months and obtaining a report from his therapist regarding his progress in gaining insight into his behaviour and the effect on the children of emotional manipulation and intrusive parenting.
The father unsuccessfully appealed the 2016 orders and in March 2017 also filed a fresh application seeking to reopen the proceedings in this Court.
The father’s position has changed significantly throughout the current proceedings and at the hearing in December 2020, he no longer sought to revisit the issue of parental responsibility and the children’s living arrangements, but seeks only that orders in relation to the children’s time with him be revisited. He contends that there has been a significant change in circumstances to warrant re-opening the proceedings, including that he has successfully undertaken therapy in accordance with court orders.
The mother in response seeks that the father’s application to reopen proceedings be dismissed. She contends that there has been no significant change in the children’s circumstances and maintains that there is still a need to protect the children from emotional and psychological harm when spending time with the father.
The Independent Children’s Lawyer’s (“the ICL”) supports the mother’s position and submits that there is no significant change that would necessitate a fresh investigation into the children’s arrangements. The ICL further submits that if the Court were minded to re-open the proceedings, such re-opening should relate only to the narrow issue of the need for ongoing supervision of the father’s time with the children.
The question for me to determine is whether there has been a significant change in the children’s circumstances such that it would be in their best interests for the question of their parenting arrangements to be reconsidered by the Court.
BACKGROUND
The father who is 47 and the mother who is 41 married in 2004. There are three children of their relationship: a son born in 2005 and now 15 (“the oldest child”), another son born in 2006 and now 14 (“the middle child”), and a 12 year old daughter (“the youngest child”) who was born in 2008.
The parties separated in March 2011 and following separation the children remained living with the mother.
The parenting arrangement following separation became highly problematic as each parent complained about the parenting capacity of the other. The father for example, raised concerns that the mother was physically abusive towards the children and neglected their medical needs, while the mother alleged that the father was controlling towards her and the children and was emotionally abusive.
Parenting proceedings were first initiated by the father in August 2011 and in February 2013 the parties agreed on final orders (“the 2013 orders”) providing that they equally share parental responsibility for the children and that the children live with the mother and spend time with the father four nights each fortnight and half of each school holiday period.
Over the next few months, and notwithstanding the making of the 2013 orders with their consent, each parent maintained their various reservations about the other parent.
In December 2013 the father filed a fresh Initiating Application seeking to vary the 2013 orders, to an arrangement that would see the children live with him and spend time with the mother as the Court deemed fit.
The final hearing of the father’s December 2013 application took place in late 2015 and final judgment was delivered in April 2016 (“the 2016 Judgment”)[1]. Those orders provided for the mother to hold sole parental responsibility for the children and for the children to live with her and spend limited supervised time with the father each alternate month.
[1] Betros & Betros [2016] FamCA 225.
A more detailed exploration of the Reasons for decision and the evidence contained in the 2016 Judgment is given later in these Reasons. It suffices to say at this stage that in making the 2016 orders I was satisfied that while the father shared a close relationship with each of the children, he had for some time engaged in a process designed to destroy the children’s relationship with their mother and cause them to align with him and question their safety with her. Accordingly, I found that there was a need to protect the children from psychological harm in the father’s care, and considered it in their best interests that a provision also be made for him to address those aspects of his behaviour through therapy, with the possibility of supervision being reconsidered when these matters were addressed.
In May 2016 the father filed an Appeal in relation to the 2016 orders which was later dismissed by the Full Court.[2]
[2] Betros & Betros [2017] FamCAFC 90.
The children continued to spend supervised time with the father in accordance with the 2016 orders without significant incident, though the father deposes that both he and the children became increasingly dissatisfied with time occurring within the confines of a contact centre.
The father’s current application to re-open proceedings
On 1 March 2017 the father filed an Initiating Application commencing the third tranche of proceedings in relation to the children.
In a Notice of Risk filed in support of his application, the father alleges that the children had been exposed to “extreme religious views” in the mother’s care and that there were various safety concerns arising from the mother’s partner’s family. It was the father’s proposal at the time that he hold sole parental responsibility for the children and that they live with him. He also sought an order that the children be placed on the Family Law Watchlist.
At around the time that he commenced the current proceedings, the father also began to engage in counselling sessions with a psychologist (“the father’s psychologist”). He attended upon this psychologist on a regular basis, and at times spoke to her over the phone.
On 7 March 2017 an ICL was appointed to the proceedings and it was ordered by consent that the children’s names be placed on the Family Law Watchlist.
Shortly after, the mother filed her Response to the father’s application in which she seeks that the father’s application to vary the final parenting orders be dismissed.
When the proceedings came before me for a case management court event in May 2017, I indicated that the father’s application to revisit the 2016 orders required a determination in accordance with the principles set out in Rice v Asplund[3]. I then ordered that the matter return to my judicial list upon the father filing all his material with respect to this application and the mother filing any further material in response. For over a year, neither party filed any material pursuant to court orders.
[3] In the marriage of Rice & Asplund (1979) FLC 90-725.
On several occasions in 2018 the children spent time with other members of the paternal family also at the contact centre.
In around April 2018 the father’s solicitors requested that the father’s psychologist prepare a report regarding the father’s engagement with therapy. The father’s psychologist provided her initial report (“the psychologist’s 2018 report”) in which she expressed the view that the father had a “better understanding of the consequences of his behaviour” and had “developed strategies to correct such”.
In November 2018, the father filed an Amended Initiating Application seeking that all previous orders be discharged, that the parties equally share parental responsibility for the children and that the children live with the mother and spend time with him each alternate weekend and half of the school holidays.
The father’s application was next listed before a Registrar in June 2019 and on this occasion the Registrar noted that the ICL intended to meet with the children as well as speak to the father’s psychologist for further clarification about the father’s progress with therapy.
Between July and December 2019 there was little progress in readying the application for hearing. During that period, and at the request of the ICL, the father’s psychologist prepared a second report (“the psychologist’s 2019 report”) in which the psychologist elaborated on the positive changes she said she observed in the father’s awareness and understanding of his past behaviours.
At some stage between late 2019 and early 2020 the children’s time with the father was moved from Saturday afternoon to Friday evening. Although the parties provide differing accounts of the children’s time with the father thereafter, it is common ground between them that on various occasions each of the children expressed a desire to spend more time with their father and had been to maintain some electronic communication with him on some occasions without the knowledge of the mother at the time.
By February 2020, the parties had still not filed any material relating to the father’s application to re-open the proceedings.
Sometime in early February 2020 the parties engaged in mediation and apparently reached some agreement as to interim parenting arrangements for the children, though the terms of such arrangement are not entirely clear. Ultimately, this interim parenting arrangement did not come to fruition, and for many months the children were not able to spend time with their father pursuant to court orders as a result of the restrictions associated with the COVID-19 pandemic.
At a case management court event in April 2020, I noted that the father pressed his application to revisit the 2016 orders as opposed to availing himself of the leave in those orders to make an application that I lift the requirement that the children’s time with him be supervised. In these circumstances, the ICL sought an order that a family consultant prepare a report solely relating to the issue of the children’s views regarding their parenting arrangements. Further orders were made that the parties file their affidavits directed only to the issue of whether there is a significant change in the children’s circumstances such that it is in their best interests to revisit the 2016 parenting orders. The mother was also to make the children available to the family consultant for the preparation of a report.
In late April 2020 the children were assessed by the family consultant for the preparation of a report as to their views.
The Family Consultant’s Memorandum to Court
In her Report dated 30 April 2020, the family consultant noted that on interview, each of the children expressed a “clear preference” for an increase in their time with their father. The family consultant further noted that both the oldest and middle child complained about the contact centre setting and had a strong preference for seeing their father on an unsupervised basis to restore their meaningful relationship with him. Each of the children were also reported to have expressed a desire to reconnect with the extended paternal family.
It was the family consultant’s recommendation that given the children’s ages and developmental stages, “some weight” should be given to their views in determining the most appropriate parenting arrangements for them.
Although risk factors in each of the parent’s households, including the mother’s concerns about the children’s safety and wellbeing in the father’s care, were not assessed in accordance with the parameters of the report, the family consultant opined that the children are either “unaware of any risks relating to them spending time with father” or are “minimising any negative experiences in his care”. The family consultant further hypothesised that it is also possible that as result of spending significant periods of supervised time with their father, the children have developed an “idealised view of him” that is not commensurate with their previous experiences of him.
Ultimately, the family consultant recommended that if it is not determined to be in the children’s best interests due to risk concerns that they spend additional or unsupervised time with the father, it is likely to be of assistance to the children if they were provided with some information regarding the reasons for this. She further explained that while this is unlikely to significantly alter the children’s views, it may be of assistance to the children, particularly the oldest and middle child, in understanding the requirement for supervised time and to assist them in developing a more realistic view of spending time with their father.
In May 2020 the father’s psychologist prepared a further report (“the psychologist’s 2020 report”) in which she expanded upon her views about the father’s significant progress since engaging in therapy.
The hearing took place across two days in December 2020 in relation to the question of whether it is in the children’s best interests for their parenting arrangements to be revisited by the Court.
THE "RULE" IN RICE & ASPLUND
As is clear from Full Court decisions, such as Prewett & Mann[4], there is no doubt that the principles established in Rice & Asplund (supra) and the subsequent line of authority apply to proceedings such as these where a party is seeking to have parenting orders reconsidered.
[4] [2013] FamCAFC 130.
The so-called "rule in Rice & Asplund" arises from remarks made by Evatt CJ in that case at [78,905-06]:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change in an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …
Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
As further explained in Prewett & Mann (supra) at [9]:
The rule is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).
The way in which the rule is to be applied has also been set out by the Full Court in Marsden & Winch[5], where it was said at [50]:
… The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[5] [2009] FamCAFC 152.

As the Full Court said in Miller & Harrington[6], the applicant is required to establish a prima facie case of changed circumstances.
[6] (2008) FLC 93-383.
The past circumstances- Reasons for previous decision and evidence
The previous proceedings finalised in 2016, representing the parties’ second tranche of litigation, were determined when the children were aged between seven and 10. The parents’ dispute about the children’s parenting arrangements arose from allegations made by both of them that the other parent failed to meet the children’s needs or were otherwise physically or emotionally abusive. I identified the issues requiring determination as consisting of the following:
·The father’s allegations that the mother neglected the children’s medical needs;
·The father’s allegations that the mother physically abused the children;
·The mother’s allegations that the father perpetrated family violence towards her and the children; and
·The mother’s concerns that the children were at risk of emotional and psychological harm in the father’s care.
The bulk of the father’s evidence at trial said to support his contention that the mother was incapable of providing adequately for the children or was otherwise violent towards them, was based on reports made by the children themselves or the father’s own observations. As virtually none of the father’s allegations were corroborated by medical evidence and almost all were found to be exaggerated, I was not satisfied on the evidence that the mother failed to meet the children’s medical needs or physically abused them as alleged.
I also concluded that the father’s readiness to accept the truth of the children’s complaints, including about serious assaults, did not reflect well on him. In concluding that the children’s complaints were unreliable, I attached weight to the family consultant’s opinion that some reports made by the children were “unusual” and that a possible explanation for their readiness to complain to their father about the mother was that they may have done so “to obtain a certain response from [him] to meet an emotional need”. Although some of the children’s complaints also grounded various notifications made to the Department of Family and Community Services (as that department was then known) (“the Department”), particular weight was attached to the fact that the Department took no further action and did not investigate the vast majority of the complaints even at a preliminary level.
While the mother had also given evidence that she had hit the children in the past and at times restrained the older child in particular, I did not find that there was an unacceptable risk that she would use excessive physical discipline on the children or physically abuse them in the future. In assessing the magnitude of such risk, I had regard to the mother’s recognition of the problems inherent in physical discipline and her unchallenged evidence that it had been a long time since she engaged in such behaviour towards the children. Further consideration was given to the mother’s active engagement with various services including parenting programs, and records produced from one parenting program which indicated that the mother had made progress in her management and discipline of the children.
In relation to the mother’s case that the father was a perpetrator of family violence prior to separation, I was satisfied on the balance of probabilities that the father was coercive and controlling towards the mother during their relationship. I referred to various admissions made by the father when first assessed by a family consultant in the initial parenting proceedings, including his reports that he “stopped [the mother] from seeing her family”, would “limit [the mother] seeing her friends” and also closely scrutinised the mother’s household expenditure.
In support of her case that the father’s coercive behaviour continued following separation and even extended to the children, the mother relied upon various allegations made by the father against her to various agencies, and evidence that the children had been encouraged by the father to report maltreatment in her care. The mother contended that as a result of the father’s constant denigration of her to which the children were regularly exposed, her relationship with the children became strained and that over time these difficulties manifested as behavioural problems in both the oldest and middle child. Accepting the mother’s evidence in this regard, I noted that, consistent with her account, the family consultant in the earlier proceedings opined that:
[the children] appear to have…witnessed family violence in terms of coercive and controlling behaviour towards the mother and this has had a substantial impact upon their psychological and emotional wellbeing. [The oldest child] and [the middle child] appear to be emotionally influenced by [the father’s] negative view of [the mother] and they have openly demonstrated a lack of trust in her.
The deterioration of the oldest child’s behaviour assumed particular significance in the previous proceedings in that despite engaging in court-ordered family therapy, this behaviour did not abate and instead became more pronounced in both home and school settings. Coupled with his polarised views of each parent’s household, this child’s unrelenting anti-social behaviour (which was corroborated by independent witnesses such as Departmental caseworkers and the child’s treating paediatrician), caused the family consultant to speculate whether the father attempted deliberately to alienate the children from the mother. The family consultant was of the view that if the Court found that the mother was not physically abusing the children and was not neglectful in meeting their medical needs, it was likely that the father was attempting to interfere with the children’s relationship with her and undermining it. The family consultant further postulated that the emerging emotional and behavioural problems affecting the two older children could be a function of this.
Having regard to the father’s unsupported allegations against the mother, the escalating emotional and behavioural difficulties exhibited by the oldest and middle child, and the children’s alignment with the father including that they questioned their safety and security in the mother’s household, I was satisfied that the father engaged in a campaign of coercive and controlling conduct towards the children sufficient to meet the definition of family violence and sufficient to establish a risk of psychological harm in his care. I further said:
…Even if I am unable to find that the father has deliberately engaged in a process of alienation or destroying the children’s relationship with their mother, I am satisfied that he is behaving in this manner at least at a subtle and indirect level.
Although I acknowledged that the children shared a loving relationship with their father, on the basis of adverse findings made against him, the need to protect them from harm arising from his care was given primacy.
The family consultant also finally recommended that if the Court were satisfied about the father’s manipulation and emotional abuse of the children, the mother should hold sole responsibility for the children and the children should live with her and spend limited supervised time only with the father every second month. This proposal was adopted by the ICL and largely supported by the mother. Orders along these lines were ultimately made as they were considered by me to be in the children’s best interests in order to safeguard them from the identified harm.
While I considered it deleterious to the children’s wellbeing and their relationship with their mother if the father were to maintain a significant role in their lives, it was not of the view that there was no benefit to them in having any relationship with him or having a relationship with him in the future.
In these circumstances, I endorsed a proposal that the father engage in therapy to mitigate the risks arising in his care. It was proposed by the ICL that the orders provide for the father to address those aspects of his behaviour which are relevant to his engagement in family violence and emotional abuse of the children and leave open the possibility of supervision being reconsidered when these matters were addressed. In my view, such a proposal “appropriately address[ed] the need to protect the children from harm and allow[ed] support for a more meaningful relationship between [the father] and the children in the future”.
One other matter touched upon in the 2016 Judgment and which was of particular relevance in making the orders proposed by the ICL, related to the nature of the parental relationship.
There was no dispute between the parties that the level of parental conflict was such that it would be difficult for the children to maintain a relationship with both parents. I also found, as explained, that the father was active in undermining the children’s relationship with the mother and causing them to align with him. The parties also agreed that although the children lived primarily with the mother following separation, each of the children had established relationships with their father albeit that the mother contended there were a number of problematic features present in those relationships.
Against this background, I noted that the likely effect of a change in the children’s circumstances as a result of the final orders was a weighty factor in the matter. Although it was acknowledged that the arrangement under the ICL’s proposal would likely see the children “experience significant sadness and distress as a result of the separation from their father”, I accepted the family therapist’s opinion that a decision to significantly reduce time with either parent would, in the short term, “likely necessitate a significant level of support for the parents and the children”, but in the long term “may settle the children”.
In these circumstances, I considered it in the children’s best interests for the mother and children to continue to participate in family therapy and for the father to receive therapeutic treatment as proposed by the ICL. In making these orders, I was mindful that such a proposal would help ameliorate the “very negative impact” the parental conflict has had upon the children, while at the same time provide the children an opportunity to have an improved relationship with their father in the future.
Circumstances following the Final Hearing of 2015
Before exploring the circumstances following the final hearing of 2015, it is in my view significant to note that the father unsuccessfully appealed the 2016 Orders.
Central to the father’s Appeal filed in May 2016 were his contentions that I made erroneous findings about the nature of his coercive and controlling conduct, that the orders unfairly impinged on the children’s loving relationships with him, and that I did not provide adequate reasons for such findings and orders.
In dismissing the father’s Appeal, the Full Court stated, in summary:
Ground 1
14. … the trial judge’s alleged failure to provide sufficient reasons about [the father’s] need for [therapy]…could not be sustained. The trial judge made unchallenged findings about [the father’s] lack of insight because he accepted the truth of all critical reports made by the children about the mother, he could not countenance why their reports might be false, he attributed the children’s misbehaviour to the inadequacy of the mother’s parenting capacity, and he showed no insight into the role his conduct played in influencing the children’s attitudes towards the mother or the harm thereby caused to them (see [91]–[96], [123] and[159]). The trial judge concluded the father would continue to treat the children in the same way “without some form of intervention” (at [159]) and therefore made Order 13 as proposed by the Independent Children’s Lawyer, with the mother’s support (at [160], [211]). The trial judge reasoned an order to that effect would “leave open the possibility of supervision being reconsidered” if the father fulfilled the stipulated condition of acceptance of psychotherapy to help him gain “insight into his shortcomings” and address his “harmful behaviour” (at [170], [198], [212]). The reasons were ample and so Ground 1 fails.
Ground 2
15. Ground 2 alleged the trial judge erred by failing to provide sufficient reasons to reject certain evidence, including that of the Family Consultant in particular, about the likely detrimental effect upon the children of having their interaction with the father so drastically curtailed.
16. As can be seen, the father’s complaint entailed two aspects: the asserted rejection of evidence and the insufficiency of reasons given for its rejection. However, the trial judge did neither. In fact, her Honour did the opposite. The Family Consultant’s evidence was accepted and the trial judge said she placed “significant weight” upon it (at [140]).
…
18. In making orders that reflected the Family Consultant’s recommendation, the trial judge was conscious the orders were “extreme orders” (at [166]), “insufficient to promote the children having a meaningful relationship with their father” (at [156]), and would represent “a significant change in the current circumstances for the children” (at [189]).
…
21. It is therefore quite clear her Honour realised the appealed orders would radically alter the children’s relationships with the father and would cause them some level of distress. Her Honour made the orders in reliance upon the unchallenged opinion evidence of the Family Consultant, as urged by the mother and Independent Children’s Lawyer, once the adverse factual findings were made against the father. Consequently, there is no merit in Ground 2…
…
Grounds 3 and 4
27. The father complained about the trial judge making factual findings in relation to conduct that pre-dated the final consent orders made in February 2013. The trial judge acknowledged the proceedings before her were “mainly concerned” with circumstances after the February 2013 orders (at [100]), but her Honour was unable to simply ignore past history. The provisions of the Act required her to assimilate the evidence about “family violence” to determine whether the children needed any protection from harm caused by exposure to it as part of the broader inquiry about their best interests (ss 60CC(2)(b), 60CC(3)(j)). Findings about the commission of family violence were also integral to the application of the presumption of equal shared parental responsibility (s 61DA(2)(b)). In any event, the father’s submission overlooked the fact his own affidavit evidence addressed episodes of alleged “family violence” and “abuse” before the February 2013 orders were made. He would not have placed such evidence before the trial judge unless he contended it had some relevance to the orders her Honour was asked to make and so it was inconsistent for him to criticise the trial judge for considering the evidence and factoring it into her Honour’s determination of proper parenting orders.
28. As for the children, the trial judge accepted the Family Consultant’s evidence that the children witnessed family violence, in the form of coercive and controlling behaviour by the father towards the mother, both before and after the parties’ separation, which had a “substantial impact upon their psychological and emotional wellbeing” (at [105], see also [165] and [210]). Apart from the children’s exposure to such family violence, the trial judge found the father “abused” them…
29. In reaching those conclusions, the trial judge accepted and relied upon the evidence given by the mother and the Family Consultants, the latter of which was not controverted. Such evidence included representations made to each of them by the children. Conversely, the trial judge attributed little or no weight to representations made by the children to the father that were critical of the mother, which he considered was unfair, but her Honour adequately explained that was because the children were most probably unduly influenced by him. Otherwise, any asserted error manifest in the trial judge’s acceptance or rejection of, or attribution of weight to, certain evidence could not be vindicated on appeal in the absence of a transcript…
…
Ground 5
35. Overall, this ground of appeal asserted discretionary error by the failure to ascribe sufficient weight to some particular aspects of the evidence, but an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight (see Gronow v Gronow (1979) 144 CLR 513, at 519–520). No submission made by the father was sufficient to overcome that obstacle.
36. Technicality aside, the father contended the trial judge had “alternative options”, besides making orders that so substantially curtailed the children’s relationships with him, which could have “remedied” any concerns about the destructive effect of his conduct upon the children, but in reality her Honour had none. Significantly, the father failed to articulate any alternative option during the appeal. The evidence before the trial judge presented only a polarised choice between retention of a parenting regime similar to that imposed by the February 2013 orders, which was failing spectacularly, or a radical change. The father’s lack of insight into the need for modification of his behaviour forced the trial judge’s hand to adopt the latter course.
Nearly a year after filing his appeal, the father also sought that the proceedings be re-opened to reconsider the children’s parenting arrangements under the 2016 orders. At the time the father filed his fresh Initiating Application in March 2017 seeking orders that the 2016 orders be discharged and that he hold sole parental responsibility for the children and that they live with him, the thrust of his case remained that there were various safety concerns in the mother’s care. His appeal at this stage had not been determined.
By November 2018, the father continued to seek that the 2016 orders be discharged but amended his proposal to an arrangement whereby the parties equally share parental responsibility for the children and the children live with the mother and spend unsupervised time with him.
At final hearing in December 2020, after I noted various inconsistences with the father’s written submissions and his proposed final orders, counsel for the father tendered a Minute of Order in which the father sought, in summary, that the 2016 orders relating to his supervised time with the children and engagement in therapy be discharged and that the children spend significant and substantial time with him on an unsupervised basis.
It appears from the father’s written submissions and his trial affidavit dated May 2020 that he no longer contends that the children are at an unacceptable risk of harm in the mother’s care. Rather, it is his case that the following significant changes in circumstances have occurred since the earlier proceedings to warrant revisiting the matter:
·He has undertaken 24 months of counselling as was contemplated by the 2016 orders;
·He has now accepted the living arrangements for the children;
·He has gained insight into his coercive behaviour and into the effects on the children of emotional manipulation, intrusive parenting and emotional abuse; and
·The children have “outgrown” the contact centre noting their ages, and each of them have expressed a desire to spend more time with their father outside a supervised setting.
The father’s engagement with counselling
The father deposes to attending appointments with his psychologist in person or on telephone on a regular basis since the final orders were made in 2016. It is his case that through completing 24 months of therapy he has come to accept the children’s living arrangements and has gained insight into his coercive behaviour and the effect on the children of intrusive parenting and emotional abuse.

In his affidavit he gives examples of the way in which he has applied this new-found understanding when interacting with the children at the contact centre. He deposes for example that when the children have raised matters relevant to the proceedings such as querying changes to their regime of time with him and telling him that they miss coming to his house, he has made concerted efforts to change the subject. He deposes that he now recognises the importance of not imposing his personal views onto the children and placing undue pressure on them as he did in the past and claims also to have learnt to be more proactive in working towards the children’s best interests rather than placing the blame for the situation on the mother.
The father also claims to have gained insight into other relevant matters such as his approach to the children’s medical needs.
The father relies upon various reports prepared by his psychologist in 2018, 2019 and 2020 in support of the contention that he has gained insight into his past behaviours and that accordingly, there has been a significant change in the circumstances to warrant reopening the proceedings.
It is a clear theme in the father’s psychologist’s three reports that in her view the father has achieved significant progress in changing his behaviour and attitudes, particularly towards the children.
In her 2018 report for example, the father’s psychologist explains that the father has engaged in cognitive behaviour therapy, psychological education and stress management. In so doing, the psychologist opines that the father has been able to “implement the concepts of such in his communication with his children, having accepted the manner in which previous patterns of communication have been detrimental to his desired outcomes”.
Further in her 2018 report, the father’s psychologist added:
[The father] now fully understands his role in ensuring that his children respect their mother, her choice in partnering, the individual differences at times in parenting and lifestyle, and how vital his communication is with them in this regard.
[The father] has exercised extreme patience over some considerable period of time due to the separation from his children and limited access to them. It is my opinion that [the father] is now not only fully cognizant of the issues as outlined in the Court orders, but also of the benefits of the strategies he now utilises. I consider that his current and future interaction with his children will reflect this in a very positive manner.
In her 2019 report, the father’s psychologist elaborated on the positive changes she says she observed in the father. She reported that at their initial consultation she observed the father’s distress as “palpable” but that over time and through psychotherapy, relaxation training, counselling and role playing, she believes the father has been able to “apply principles of self-awareness, patience, mutual understanding and acceptance of the circumstances relating to this very difficult period”.
Similar sentiments were expressed by the psychologist in her 2020 report. In particular she expressed the view that the father is eager to present himself as a role model to the children “who demonstrates to them positive and rewarding communication skills based on recognition and compassion to the needs of others”. She expressed the opinion that the children’s time with the father should be “of longer duration” and “unsupervised” as it is her view that the therapy the father has undertaken has enabled him to develop a “strong foundation” to continue to be an integral part of the children’s lives.
It is the mother’s case that although the father has attended upon his psychologist on a number of occasions since the 2016 orders were made he has not satisfactorily addressed the concerning aspects of his behaviour. She contends that the father’s evidence concerning this matter and the opinion of the psychologist is at odds with contact centre records and that although the father gives evidence of his counselling he minimises his ongoing behaviour of concern and fails to acknowledge the harm he has caused to the children.
In her affidavit of December 2020 the mother deposes that as recently as June 2020 the oldest child received messages from the father in which the father asked the child questions such as “has your mum bashed you?” and “does your mum let you do dangerous things?”. She describes seeing “pages” of these messages but says she did not remove the child’s phone from him to respect the child’s privacy.
The mother argues that overall, comments made by the father to both staff at the contact centre and the children, as well as his approach to the current proceedings, are not consistent with opinions of the father’s psychologist. She maintains that the father continues to criticise her parenting and attempts to influence the children to say negative things about her.
At final hearing the father was cross-examined by the mother’s counsel about his insight into emotional manipulation and intrusive parenting. While the father was able to offer his learnings from his counselling sessions with his psychologist, including the strategies discussed to overcome or manage these issues, significant challenge was made to his evidence in general.
The mother’s counsel for example cross-examined the father about the orders he proposed in his Initiating Application in 2017 and Amended Initiating Application in 2018 seeking that he hold sole parental responsibility for the children and the children live with him and later seeking that the parents equally share parental responsibility. The father agreed that his initial application indicated a lack of insight into the issues for which he engaged in therapy but could not comment on his amended application.
The father was then taken to various contact records (Exhibit 5) from late 2016 in which it appears he discussed the court proceedings with at least the oldest child. He was also shown contact reports from throughout 2018 which record that he raised concerns about the children’s presentation (arising from complaints apparently made by them to him or his own observations), approached supervisors at the contact centre insisting that the children receive medical attention, and later became frustrated that his overall concerns about the children were “not being acknowledged”.
Under further cross-examination, the father was shown a more recent contact record dated 6 March 2020 in which the following is recorded:
The [father] was very emotional evident by him being teary, and described how much he is missing the children and he can’t understand why [the mother] is just prolonging this…The children are older now and [the father] has been giving her everything she wanted and done everything the court had asked.
Further in the record it is recorded that:
Conversation took place between [the father] and [the supervising coordinator]. [The father] was extremely emotional and stated he was unable to understand why [the mother] was unable to just move on. The children are older now and he believes he should be able to see them outside the centre. [The father] voiced he had never hurt [the mother] in anyway (sic) and had never been violent and he has given her all she wanted.
…
The children appeared to have been prepared for unsupervised contact as they spoke at length about what they wished to do during their time with [the father] when not at the contact centre.
In particular [the oldest child] and [the middle child] were reacting to not having seen [the father] and were clearly needing of spending time with [the father]. [The oldest child] appears to be dealing through this by verbalising a sense of betrayal whilst [the middle child] found it hard to control his emotions and was observed to cry numerous times.
While the father generally agreed under cross-examination that the contact records were true accounts of what occurred, he disputed the accuracy of the March 2020 record explaining that:
…I might have been teary and missing the children and everything else as well too, but I’ve never said anything about the mother in regards to prolonging it’s just saying things taking a while but it’s got nothing to do with the mother, just the court system, the way it’s been going.
So when you say you don’t remember that exact wording but you might - - -? --- Not in that context, no. But I have said something along those lines, yes, because that year we had issues trying to do mediation, just trying to wait for the courts and everything else was just – everything was taking so long, so.
It is submitted on behalf of the father in relation to this session at the contact centre that although this was a very emotional time for both the father and the children the father did not descend into negative comments about the mother to the children and his behaviour on this day demonstrates the great gains he has made in not reacting negatively or emotionally in the presence of the children. It is submitted on the father’s behalf that the general theme is that the children have had very positive interaction with the father over the years and that the more recent contact records, for example one from August 2020 indicates that the father was “very positive throughout his interactions” with the children.
During cross-examination, the father was also challenged by the ICL about his claims to have accepted the children’s living arrangements, ceased blaming the mother for the court proceedings and gained insight to his approach towards the children’s medical needs. The ICL pressed that the father was still trying to make the children question their safety with their mother. The father was taken to contact records in which he is reported to have raised health issues including “[the middle child’s] weight, asking about [the child’s] exercise, and if he’s eating enough”, “that [the oldest child’s] hair had thinned a lot since the last visit”, and concerns about the middle child’s dry skin as well as that the child presented with a limp on one occasion.
The general tenor of the father’s responses was to insist that he made progress in his behaviour “within the first six months” of engaging with his psychologist, and he now acknowledges he “made a big mistake in the previous proceedings” in relation to the serious allegations he made about the mother in the past. He also denied the ICL’s suggestion that he is virtually repeating his past conduct in uncritically believing the children’s complaints and insisting that they be presented to the doctor as was found in the previous proceedings. The father added:
….it’s not [that] I believe [the children] entirely. I physically have a look and check everything else, so I make sure it’s all right or not, but it doesn’t mean I entirely believe everything they say. It does not. The only reason I respond to something is because I don’t see them very often…And I don’t know what to say and how to react to certain situations in the way, when they come up to you and limp with a leg like that and – and they keep telling me they’re sore and in pain. All I say is, “Well, just get it checked out.” I’m not saying anything worse or anything good for undermine (sic) – or do anything to the child or – or put words in his mouth. Because sometimes kids carry on and play all day not noticing they’ve got a – a slight injury, that you do get it checked out because they’re just too young and just want to play. They don’t want to stop. That’s all it is.
(emphasis added)
The father again maintained under cross-examination that “a lot of things changed [for him]” and that he no longer holds any negative views about the mother. He insisted that he has “let go of the past” and is “only ready to move forward”.
At the conclusion of his cross-examination, the father clarified that he did not have his first face-to-face appointment with his psychologist until March 2017 and that prior to that date he had only had telephone contact with her “every month or two, sometimes more”.
The father’s psychologist was also cross-examined. She did not resile from the opinions expressed in her three reports.
The father’s psychologist was challenged about her opinion that the father had satisfactorily addressed his intrusive parenting. It was put to her that contact records indicate that the father appeared hyper-vigilant about the children’s presentation and continued to display behaviours for which he was seeking therapy. The psychologist considered that the records indicate that the father is merely a “concerned parent”.
In response to further suggestions about the father’s lack of progress since engaging in therapy, the father’s psychologist said:
I don’t agree with that. I think that [the father] has made many, many changes and he has…a much greater understanding of what the requirement is of him within his role as a father of these children. I think that as a father of the children, as any parent would notice on a day-to-day basis, let alone the infrequency of the visits, the little things that… the children may have from time to time, whether it be a bite, whether it be ...running into a door or whatever it may be, these things cannot be ignored.
When taken to the contact report dated March 2020 (as outlined in [85]-[86]) the father’s psychologist did not agree that it suggested that the father had no insight into the issues of concern raised in the previous court proceedings.
Under cross-examination of the psychologist questions were also directed to the lens through which she provided therapeutic treatment to the father. This arose because she had given some oral evidence to the effect that her views were somewhat at odds with findings made in the 2016 judgment.
While the father’s psychologist did not claim to have experience in child, adolescent and family issues beyond completing some related courses throughout her career, she expressed the view that the father was “emotionally alienated” from the children as a result of the court orders and that it is her belief that the children receive a benefit from having a meaningful relationship with both parents. When asked whether she understood that the only reason the children are spending supervised contact with their father at the contact centre is because of his actions, she replied:
I do not dispute, nor do I argue, decisions that have been made there. What I endeavoured to do is to ensure, perhaps, that a child – or children’s relationships with both parents is far better, rather than just one parent feeling that he is only seeing them rarely, on – for short periods of time. I think children need both parents regardless of their individual differences, and if those individual differences can be looked at, overcome, to enhance the lives the children may have in knowing there are parents whose main concern is their wellbeing, their love, their stability, and their happiness.
At the conclusion of her cross-examination, the psychologist was asked by the ICL whether at his last session with her in October 2019 the father still held some negative views about the mother. She responded that if that were the case, it was her view that the father “had the strategies to be able to cope with that and to sort of think that through himself, [and] to make a judgment as to whether that negative view was justified or not”.
In final submissions the father’s counsel submitted that great weight should be attached to the evidence of the father’s psychologist given her extensive experience in counselling and the fact that the father had a previous relationship with her as a counsellor. It was further submitted that although challenged under cross-examination, the father’s psychologist did not resile from her opinion that through his engagement with cognitive behaviour therapy and other therapies such as role-playing, the father gained the insight she felt was required as a result of the previous court proceedings.
Both the mother’s counsel and the ICL contend that very little weight should be given to the evidence of the father’s psychologist for similar reasons.
First, it is contended on the mother’s behalf that the father’s engagement in therapy for the purpose of gaining insight into his behaviour of itself does not amount to a change in circumstances for the children for the purposes of the principles in Rice & Asplund. It is contended that in any event engagement in the therapy must be viewed against the father’s continuation of the court proceedings and the nature of the orders that he continued to seek up until the commencement of final hearing.
It is also contended to be clear from the father’s psychologist’s evidence that the psychologist herself had some reluctance in accepting my previous findings and overall assessment relating to the unacceptable risk of harm posed by the father to the children.
It is contended by the ICL that none of the psychologist’s reports nor her oral evidence set out clearly the facts upon which her opinions about the father’s progress are based or her process in reaching her final opinion. The father’s psychologist had not ever observed the children with the father or even been provided with any of the contact centre reports prior to preparing her evidence in the proceedings.
More significantly, quite apart from the psychologist’s opinion, both the mother and the ICL maintain that the father’s conduct itself since 2016 and his evidence given under cross-examination demonstrate that he cannot be taken to have accepted responsibility for his behaviour or to have developed sufficient insight into the issues that were the subject of the previous proceedings.
The ICL also notes that given that the father’s first face-to-face appointment with his psychologist did not take place until around the time he commenced these proceedings in March 2017, the father took no meaningful steps to address his behaviour for almost one year after the making of final orders.
The father’s time with the children pursuant to the 2016 orders
It is also the father’s case that another significant change in the children’s circumstances relates to the nature of the children’s time with him. It is to be remembered that prior to the 2016 orders the children spent substantial unsupervised time with the father.
It is the father’s case that the regime of supervised contact is neither desirable nor practical in light of the children’s ages, and that over the years the children have each consistently expressed the desire to spend more time with him outside the contact centre. It was summarised by the father’s counsel in final submissions that the children are “incredibly emotionally affected by not seeing their father” and want to see him in “normal” arrangements.
The father deposes that while he and the children have been able to enjoy some indoor and outdoor activities during their time together, the children have stated to him that they have become “bored” and that they are instead eager to visit him in his home in the future. He also deposes that the oldest and middle child in particular have expressed interest in seeing him outside of the contact centre to engage in some work experience with him.
The father also expresses particular concern about the middle child and some emotional difficulties he understands this child has experienced. He deposes that on occasion he observed the child to “cry, give [the father] a big hug and say words to the effect of I miss you, Dad; I wish things to be different”. At other times, the father says the child complained that he does not sleep properly and that he feels “isolated and upset”.
Further in his affidavit, the father recounts that in around early 2020, the middle child began sending him messages via a social media application in circumstances where the 2016 orders do not provide for electronic communication between he and the children. The father also gives evidence that “every now and again” the older child also contacts him via text message.

The father further deposes that sometime in April 2020 he received a phone call from the middle child from a private number. During that conversation, the father says the child told him words to the effect of “please dad come and pick me up. I am outside and I will run away to your house if you do not come and get me. I want to come and live with you. I don’t want to be here [the mother’s home] anymore”. Although the father says he was able to convince the child to stay with the mother, he deposes to being worried about the child’s safety if the current regime of time between he and the children continues and this child were to run away.
Much of the father’s account of the children’s experience during supervised time is consistent with his reports made to the family consultant in April 2020. On interview, the father stated that while he has shared some “very good” and “happy times” with the children at the contact centre, such a setting is “only for young kids”. He also raised concerns about the middle child in particular and said that he believes that this child does not want to be in the mother’s household.
When assessed by the family consultant for the purposes of ascertaining their views, each of the children made consistent reports of dissatisfaction with their current regime of time under the 2016 orders.
The older child, for example, who was 14 years old when interviewed, immediately commenced the interview by asking when he was to see the father “out of the centre”. While he reported that spending time with the father is “all good”, he reiterated that he wants to spend time with the father “privately, like normally”. He explained that unsupervised time with the father would allow him to talk about “private things” and “personal stuff” and also enable them to do more varied activities.
Although the older child denied that he had contact with the father outside of their supervised time, he confirmed that in addition to spending unsupervised time with him, he wished to have communication with the father via electronic means. The family consultant further reported:
[The older child] subsequently identified that he wants to spend more time with [the father] than he currently does and wants flexible arrangements so that he could “be, like, free to do whatever”, identifying that he would want to visit [the father] as he wishes “and come back home”. [The older child] said that “it would be pretty sad and bad” if the current arrangements continue and that “I hate this”, referring to the current arrangements. He also said that it is “pretty weird” having someone “write down everything you say” and that they cannot have private conversations…
The middle child who was almost 14 at the time of the assessment, also expressed the view that he does not spend enough time with the father and clarified that he was referring to both the frequency and duration of visits. He told the family consultant that the only positive aspect of the current time arrangement is “I get to see [the father]”. This child also complained about the contact centre setting, stating that it is “not that good” and is “more for babies” and “very small”. He added, he feels “uncomfortable” at the contact centre with people listening to and writing down “everything we say”.
After the middle child also told the family consultant that he missed the father, he went on to provide a number of different suggestions about parenting arrangements. He ultimately suggested that he would prefer flexible arrangements whereby he could spend time with the father as he wishes. Further in his interview, the middle child raised concerns that the father is “getting old now”. The family consultant reported that:
[The middle child] said that if [the father] were to pass away before he reaches adulthood, it would be “too late”. [The middle child] went on to state that [the father] has “missed out on our whole childhood” and that, while [the father] previously did a lot of outdoor activities with the children, he will not be able to do this if he is “getting older”.
Towards the end of his interview, the middle child also denied that he had communicated with the father outside the 2016 orders and said that although he has the means to, and wants to, he is “scared that either he or [the father] will get in trouble if he does”.
In her interview with the family consultant, the youngest child who was 11 years old identified that a positive aspect of the current arrangements is that she sees the father but that a negative aspect is having to wait “that long” between visits. She also complained about the visits being only two hours long. Although this child did not complain about the contact venue as much as the two older children, she told the family consultant that it would be “a little annoying” if the current arrangements continue but stated that it would be “ok as well” because there are “a lot of fun things to do” at the contact centre and it is “fun to just see [the father]”.
In their interviews with the family consultant each of the children also spoke of wanting to spend time with members of the paternal family.
The mother gives evidence in her trial affidavit dated 29 May 2020 that while the children are “happy to go and see their father” and have questioned when they would be allowed to “see him outside the centre”, they have not “pushed it”. She also provides a different account to the father’s in relation to the middle child’s behaviour and in particular disputes the alleged distressed phone call in April 2020. She deposes that when she discussed this incident with this child, while the child did confirm that he missed the father he “wasn’t upset and didn’t threaten to run away”. She raises concerns that the father has “twisted [the child’s] words”.
The mother also deposes to being aware that the children have had some contact with the father outside of the contact centre, but she does not consider that these conversations are always positive in nature. For example, she describes that the older child brought her attention to a conversation in which the father allegedly asked the child “didn’t u miss me, don’t u love me…why haven’t you been in contact”. The mother says this child thought “his father was making him feel bad” and told her that in other messages the father “asks a lot of questions”. The mother deposes that the youngest child has also complained that the father “bugs [the child]” with questions.
In another affidavit filed June 2020 the mother deposes to an incident in early June 2020 in which it was said that the youngest child learned from a school friend that the father had made negative comments about her. The mother alleges that since this incident the child has expressed some reluctance about the seeing the father.
In submissions made on behalf of the mother in relation to this matter the mother conceded that while the children do wish to spend time with the father, recent comments made by them suggest some ambivalence about the nature of the father’s communication with them.
It is also contended on the mother’s behalf that the children being older is not sufficient of itself to constitute a change in the children’s circumstances and the inevitable fact of them becoming older was within the contemplation of the Court at the time the 2016 orders were made. She agreed that while it may well be that a contact centre is more suitable for younger children the need for supervision reflects the overarching need to protect the children from harm.
The ICL similarly does not dispute that the children each express a desire to spend more time with their father but the expression of these views are similar and no different to the views they expressed in the previous proceedings and on this basis do not constitute a significant change in circumstances.
Cost of supervised contact
It is also appears to be contended on behalf of the father that the financial burden associated with supervision of the children’s time with him, which he suggests is unsustainable, amounts to a change in the children’s circumstances.
It is difficult to see how such a matter could be contended as a change in circumstances. Moreover, this contention is inconsistent with the father’s proposal that the children spend significant and substantial time with him and his concession under cross-examination that such a proposed arrangement would result in a greater financial burden than the expenses associated with supervision.
Is there a likelihood of orders being varied in a significant way as a result of a new hearing?
It is to be remembered that the father did not avail himself of the leave given under the 2016 orders to revisit only the requirement that the children’s time with him be supervised. If that were the case then the father need only satisfy the requirement in relation to obtaining therapy to address the matters related to his behaviour that necessitated the supervision. Rather, through his current application the father seeks to reopen the proceedings in relation to the children’s time with him more generally. The precondition for such an application is that he satisfy the Court that there has been a sufficient change in circumstances such that it is in the children’s best interests to consider afresh how their welfare should best be served.
In determining this, I must consider whether the father’s proposal (that the children spend unsupervised time with him and that this time rapidly increase to substantial and significant time), carries any prospect of success. In my view, there is no real likelihood that the regime of the children’s time with the father under the 2016 orders would be varied in a significant way following a new hearing for the following reasons.
First, I am not satisfied that the father’s behaviour has changed as he contends as a result of his engagement with counselling with his psychologist. In my view, the contact records about his observed contact when the children have spent time with him carry more weight than his own assessment of his behaviour or the opinion of his psychologist.
In contact reports dating between 2016 and 2019 it is recorded, in summary, that the father has engaged in the following behaviours, most of which he did not deny under cross-examination:
·Making comments to the children about court matters;
·Raising issues with the children about their presentation including their health based on comments made by the children or his own observations;
·Insisting that the contact centre instruct the mother to seek medical attention for the children’s complaints;
·Assuring and promising the children that their parenting arrangements will “change soon” or “things will be back to normal”;
·Questioning the youngest child about her clothing (which accords with the mother’s faith tradition); and
·Expressing frustration that his concerns about the children are not being acknowledged.
Of note, on some of the occasions referred to above, intervention by contact supervisors was required including asking the father not to pursue certain conversations with the children.
As recently as March 2020, it is recorded that following his contact visit with the children the father was visibly disquieted and told the supervisor of the contact centre that he “never hurt the mother in any way” “had never been violent” “had given her all she wanted” and was “unable to understand why the mother was not able to just move on”. The inescapable inference is that the father has not accepted the children’s parenting arrangements under the previous orders. While he has not spoken negatively about the mother directly to the children as noted by the father’s counsel, I am not satisfied that the manner in which the father made complaints and expressed his dissatisfaction suggests that he is more concerned about the children’s best interests than he is about blaming the mother for the difficult situation.
Some of the father’s comments made to the Family Consultant when interviewed in April 2020 also suggest that he remains sceptical about the mother’s parenting. For example he raised concerns that the oldest child had spoken to him about “wanting to buy guns in order to go the shooting range or go hunting”. He further told the family consultant that the oldest child was “questioning my faith” and “why I’m not praying” which he found “very, very unusual” and indicated that he had also questioned the youngest child about her religious clothing “a fair bit”. The particular concerns about the children’s expression of faith were repeated in the father’s affidavit, and he appears to attribute the children’s religious involvement to the fact that “[the mother’s partner] and [the mother] are very religious and their faith is very important to them”.
In summary, for the foregoing reasons I am not satisfied that the father has understood or shown insight into those features of his behaviour which amount to intrusive parenting.
The nature of the father’s application to reopen the proceedings and the various orders that he has proposed also demonstrate in my view that he has not accepted responsibility for his actions or understood the need for limiting the children’s time with him and requiring that it be supervised.
It was not until the first day of the hearing that the father narrowed his application to revisiting only the regime of the children’s time with him. Prior to that, for a lengthy period of time it was his proposal that he hold sole parental responsibility for the children and that the children live with him. In around late 2018 while he abandoned his proposal that the children live with him, he sought that he and the mother equally share parental responsibility for the children with an apparent disregard for the strength of findings of family violence and parental conflict in the 2016 Judgment.
I accept the submission that the orders sought by the father themselves may demonstrate the coercive and manipulative behaviour which previously caused the Court concern. I also consider that the father’s attempt to coerce the mother is evident in an email dated February 2020 which was sent from a senior supervisor from the contact centre to the ICL (Exhibit 5). In that email the following is written:
…[P]lease be advised [the father] has contacted the service stating he is not prepared to come to contact this afternoon unless [the mother] agrees to negotiations with the solicitors in relation to future contact visits…
I have advised [the father] it is not the role of [the contact centre] to get involved in negotiations and have encouraged him to attend this afternoon but [the father] remains adamant he will not attend contact if [the mother] does not approve of the dates provided to both parties by [the contact centre]…
(emphasis added)
In my view, it is unlikely that the Court would endorse a proposal that the father’s time with the children become unsupervised where it is evident that his coercive and controlling behaviour found by the Court in the earlier proceedings and which underpinned the need to impose supervision in order to protect the children’s emotional and psychological well-being, remains. The father’s behaviour as documented in the contact reports indicates a continuation of his inability to reflect upon his own contribution to the difficulties in the children’s current situation.
As I have explained, I attach more weight to the records of the father’s behaviour and his evidence under cross-examination than to the opinion of his psychologist. I also have serious reservations about the psychologist’s evidence. In particular, although the psychologist maintained under cross-examination that she had provided therapy to the father with reference to the 2016 orders and the Court’s findings, she unsurprisingly clearly had a therapeutic alliance with the father which in my view may have affected her capacity to objectively assess the benefit of the counselling and therapy she provided to him. In particular, it appears from her oral evidence that the focus of her therapy was to help the father navigate his “emotional alienation” from the children and that she also worked with him from the standpoint that children needed more exposure to his parenting.
While it may have been helpful for the psychologist to have had access to contact records when preparing her reports (given she relied upon the father’s account of his time with the children), when taken to the various contact records during cross-examination, she appeared to understate the father’s harmful behaviours about which I made adverse findings. She insisted that the father questioning the children’s presentation and health demonstrated that he was merely a “concerned parent”. I also observe that her position in her most recent report dated May 2020 that the father is “determined” not to repeat his past communication patterns as therapy has enabled him to develop a “clear understanding” of their detrimental effects, is contradicted by the mother’s evidence of the father’s recent behaviours contained in her June and December 2020 affidavits. These incidents to which the mother deposes (see paragraphs [123]-[124] of these Reasons) occur well-after the father’s engagement in therapy and were not challenged under cross-examination.
For the foregoing reasons I attach little weight to the opinion of the father’s psychologist that the father has made significant inroads in his therapy.
The father has urged that in determining the likelihood of the orders being changed if the proceedings are re-opened significant weight be given to the children’s ages and views. In my view the fact that the children are now older and may have “outgrown” their parenting arrangements is not of itself a change in circumstance that would justify revisiting the previous orders. If it were so, there would be endless litigation, which the authorities are clear is not in the children’s best interests.
In my view, little weight can be attached to the children’s views as indicative of a change in their circumstances given that throughout the earlier proceedings they all held similar strong views about spending more time with the father. That is, their desire to have time in the father’s care is no fresh circumstance, albeit that they are now older and more firmly expressing those views. Such views, which were also assessed by the family consultant in the previous proceedings, had been in my contemplation when making the 2016 orders. The reality that the children would grow older and likely be displeased about spending limited time with their father in a supervised setting was at the forefront of the provision that the father be at liberty to apply to the Court to consider lifting the supervision requirement upon him engaging in treatment.
I accept the ICL’s submission that even four years on, the children still appear very vulnerable to the same dynamics of coercion and control by the father to which they were exposed during the parties’ relationship and following separation.
In these circumstances, I accept the submission made on the mother’s behalf that the children’s views while relevant, are not determinative. Having regard to the nature of the findings in the 2016 Judgment regarding the father’s emotional abuse, it cannot be expected, as contended by the mother’s counsel, that the children understand any undue influence by the father, much less the potential risk of emotional and psychological harm to them. The family consultant opined that:
…the risks and determinations that resulted in the children spending supervised time with [the father] for the past four years are not known. It is therefore possible that [the children] are either unaware of any risks relating to them spending time with [the father] or are minimising any negative experiences in his care. It is also possible that, with the children having spent a significant period of supervised time with [the father], the children have developed an idealised view of him that is not commensurate with their previous experiences of him.

While the family consultant in her most recent assessment of the children in April 2020 recommended that “some weight” should be given to their views in determining their future parenting arrangements given their ages and developmental stages, it cannot be concluded by the Court at this stage that the father’s influence on the children and their views has completely diminished. The father in his own cross-examination showed little insight into the role he has played in shaping the children’s attitudes and while he made some acknowledgement of making “mistakes” in the previous proceedings, he denied exposing the children to negative views about the mother. The children, and in particular the middle child, also appear to continue to experience some emotional difficulties as described in recent contact records and observed by the family consultant.
Moreover, as the ICL identifies, notwithstanding the fact that the children are expressing these views that are referred to in the father’s evidence and in the Family Consultant’s Memorandum, there is no undisputed evidence that the children are resisting or rebelling against these orders.
While the children have also been insistent about spending unsupervised time with the father in order to also maintain their relationship with the extended paternal family, there appears to be some capacity for the contact centre to support the children spending time with members of the paternal family, as this has already occurred on at least two occasions.
Having regard to the foregoing matters, I consider there are no real prospects of there being a change in the final orders as it is unlikely the Court at fresh hearing would consider the children’s expression of strong views a weighty factor. This is particularly so in the context of their exposure to family violence and the reality that the safety concerns relating to the father’s parenting appear to persist and the father’s proposal does not provide any means to mitigate the risks he continues to pose to the children.
The final matter to which I attach weight in determining the likely success of the father’s application at a new hearing is the fact that he unsuccessfully appealed the 2016 final orders. As outlined earlier in these Reasons, in dismissing the father’s Appeal the Full Court considered the father’s contentions that I mischaracterised his coercive and controlling behaviour and also drastically curtailed his established relationships with the children. The Full Court observed that the evidence before the Court in the previous proceedings presented “only a polarised choice between retention of a parenting regime…which was failing spectacularly, or a radical change”. That Court concluded that the father’s lack of insight into the need for modification of his behaviour “forced” me to adopt the latter course.
Almost five years from the making of the 2016 orders, it appears to be that the father is still not fully cognisant of his harmful behaviour, which compels me to conclude that even if proceedings were reopened, the Court could not find any viable “alternative options” to the children’s current parenting arrangement that would be considered proper having regard to the children’s best interests.
The potential detriment to the children caused by the litigation itself
It is also imperative in child-related proceedings to consider the detrimental impact of the proceedings on the subject children particularly in cases such as these in which the children have been entangled in parental conflict and three sets of parenting proceedings to date. The youngest child, who is 12 years of age, has been enmeshed in proceedings between her parents for almost her whole life.
Although in the 2016 Judgment I recognised the difficulties associated with long term supervised contact and on this basis endorsed an order allowing for some review of the situation in the future to facilitate the children enjoying unsupervised time with the father, such an order was contemplated to be in the children’s best interests in the event the father addressed his harmful attitudes and behaviour.
For the reasons given, I am not satisfied that the father has gained insight into the issues of coercive and controlling behaviour, emotional abuse, emotional manipulation and intrusive parenting that underpinned the previous orders.
I accept that each of the children express unshaken views about not only wanting to spend unsupervised time with their father but having that time increase. I do not, however, consider it in their best interests to reopen the proceedings and expose them to litigation given their vulnerability to family violence and the need to protect them from tensions arising from the parental relationship which have been found in the earlier proceedings to put them at serious risk of emotional and psychological harm.
CONCLUSION
Having regard to the foregoing matters, there is in my view no evidence in the father’s application to establish a prima facie case of changed circumstances. Further, even if I were to accept there had been changes in the children’s circumstances as contended, these changes are not sufficient to justify reopening the proceedings having regard to the very limited prospect of success of the father’s application and the potential detriment to the children caused by the litigation itself.
While I do not consider it in the children’s best interests that the 2016 orders relating to their time be revisited for the reasons given, it is not disputed that the children hold strong views about their regime of time with their father. It is in my view appropriate that they be provided with some information relating to the Reasons for my decision as recommended by the family consultant.
The family consultant in her April 2020 report opined that if it were not determined that altering the children’s time with the father is in the children’s best interests, it would likely be of assistance to the children, particularly the oldest and middle child, if they understood the requirement for supervised time. In my view, this is particularly important where there are concerns raised by the father that the children, and in particular the middle child, “may vote with their feet and attempt to reach out to [him] and/or abscond”.
While the family consultant also expressed the view that providing the children with such information is unlikely to “significantly alter their views”, she insisted that it may at least help the children develop a more “realistic” view of spending time with their father. Ultimately, each of the parties in the course of final submissions indicated that they supported such an order.
In these circumstances, I consider it in the children’s best interests that an order be made that the ICL, with the assistance of a properly qualified person if deemed appropriate by the ICL, explain to the children in a child-focused way the supervision requirement of their time with the father. Orders are made accordingly.

I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 9 June 2021

File number(s):	PAC 3685 of 2011
Judgment of:	HANNAM J
Date of judgment:	9 June 2021
Catchwords:	FAMILY LAW – JURISDICTION – Whether there is a significant change in circumstances to warrant a fresh hearing in respect of parenting arrangements – Consideration and application of the rule derived from Rice & Asplund (1979) FLC 90-725 – Best interests of the children – Where the applicant father seeks to revisit existing parenting orders relating to the children’s time with him – Where both the mother and ICL seek orders that the father’s application to reopen proceedings be dismissed – Where the Court is not satisfied that there are changes in circumstances sufficient to justify reopening proceedings – Father’s application to reopen proceedings dismissed – Where it is otherwise appropriate to make an order that the ICL explain to the children the supervision requirement of their time with the father, as recommended by the family consultant.
Cases cited:	Betros & Betros [2016] FamCA 225 Betros & Betros [2017] FamCAFC 90 Marsden & Winch [2009] FamCAFC 152 Miller & Harrington (2008) FLC 93-383 Prewett & Mann [2013] FamCAFC 130 In the marriage ofRice & Asplund (1979) FLC 90-725
Number of paragraphs:	163
Date of hearing:	14 – 15 December 2020
Place:	Parramatta
Counsel for the Applicant:	Ms Conte-Mills
Counsel for the Respondent:	Ms McCarthy
Counsel for the Independent Children's Lawyer:	Ms Seric
Solicitor for the Applicant:	Phillip A Wilkins & Associates
Solicitor for the Respondent:	Womens Legal Services NSW
Solicitor for the Independent Children's Lawyer:	Sydney West Family Lawyers

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	9 JUNE 2021