BILNEY & BRISCO

FAMILY COURT OF AUSTRALIA

BILNEY & BRISCO

[2013] FamCA 561

FAMILY LAW – CHILDREN – Final orders – With whom a child lives – Status quo maintained – High level of parental conflict – Allegations by mother that father poses unacceptable risk to the children – Where the Police and Department have investigated allegations – Where the mother has failed to comply with previous orders – Where the children have been exposed to their parents conflict – Children not at unacceptable risk of harm in the father’s unsupervised care – Orders that mother’s time with children continue to be supervised – Where the mother’s sister gave undertaking to supervise the mother’s time with the children.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA and 65DAA

Heath v Hemming (No 2) [2011] FamCA 749
Marvel & Marvel (No 2) [2010] FamCAFC 101

APPLICANT:

Ms Bilney

RESPONDENT:

Mr Brisco

INDEPENDENT CHILDREN’S LAWYER:

Adey Lawyers

FILE NUMBER:

ADC

6474

2007

DATE DELIVERED:

9 May 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Benjamin J

HEARING DATE:

6, 7 & 8 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

COUNSEL FOR THE ICL:

Mr McQuade

Adey Lawyers

Orders

Previous Orders

All parenting previous orders in relation to C Brisco (born … 2005) and J Brisco (born … 2006) (“the children”) are discharged.
Residence
The children live with the father.
Parental Responsibility
The father have sole parental responsibility for the major long term issues for the children including:-
(a)their education (both current and future); and
(b)their religious and cultural upbringing.
(c)such parental responsibility does not include the responsibility to change the children’s names and/or change the children’s principal place of residence from within the greater Adelaide area, without the written consent of the mother or order of a court exercising jurisdiction under the Family Law Act, 1975.
Prior to making a decision in the exercise of his parental responsibility pursuant to these orders, the father shall:-
(a)advise the mother in writing as to any decision/s being made;
(b)seek her written response about that decision, permitting her sufficient time to properly consider the decision;
(c)by reference to the best interests of the children consider any response by the mother, before making such decision; and
(d)advise the mother in writing, as soon as reasonably practicable, of the result of the decision.
(e)If there is an emergency situation that does not reasonably permit the father to consult with the mother in advance, the father will make any decision that is in the children’s best interests (to address that emergency) and will as soon as is reasonably possible, notify the mother of the emergency, the advice provided to him and of the decision made by him.
The mother shall have parental responsibility such as to enable her to obtain and/or be provided with copies of the children’s school reports, newsletters and school photos (at her own expense) and discuss with the children’s teachers the progress of the children at school. In addition she shall have parental responsibility such as to enable her to discuss with the children’s health care professionals, the health and treatment issues relating to the children.
Spending time and communication
The children shall spend time with the mother as follows:-
(a)On Mother’s Day, Sunday 12 May 2013 from 1.00pm to 7.00pm, NOTING that the children will be collected by Ms K Bilney (the mother’s sister) and returned to Ms U (the father’s fiancée) at an agreed address;
(b)From 13 May 2013 until the week ending 10 August 2013; two (2) evenings per week (between Monday and Friday) and being days reasonably nominated by the father in writing; from after school (if not a school day from 3.00pm) to 7.00pm;
(c)As and from Sunday 26 May 2013 until Sunday 28 July 2013, each alternate Sunday from 1.00pm to 7.00pm;
(d)As and from Saturday 22 June 2013 until Saturday 27 July 2013; each alternate Saturday from 10.00am to 5.00pm;
(e)As and from the weekend commencing Saturday 10 August 2013, each alternate weekend from 10.00am Saturday to 6.00pm Sunday.
(f)Such times the children spend with the mother to be supervised by Ms K Bilney (the mother’s sister) or such other person as is agreed in writing between the parents and in the absence of agreement by the parents, as determined by this Court.
(g)THE COURT NOTES and RELIES UPON the sworn undertaking given to the Court by Ms K Bilney on 8 May 2013 to the effect that;
i.She will at all times supervise and monitor the children’s time with the mother;
ii.She will ensure that the children are returned at the end of time in accordance with these orders or the written agreement of the parties;
iii.If the supervisor observes in the presence and/or hearing of the children or either one of them;
I.the mother and/or the maternal grandmother abusing, demeaning or belittling the father and/or members of his family;
II.the mother and/or the maternal grandmother discussing these proceedings, events and facts
III.the children being exposed to adult issues in relation to the disputes between the mother and father; or
IV.the children being unsafe in the care of the mother;
iv.she will forthwith terminate the time the children spend with the mother, return the children to the father and provide written details to him of the events that brought about that return.
(h)The spend time with arrangements must take into account the existing football and dance commitments of the children and the mother shall ensure that the children will continue with these activities.
(i)As and from the week commencing Sunday 11 August 2013; one evening per week (between Monday and Friday) and being a day reasonably nominated by the father in writing; from after school (if not a school day from 3.00pm) until 7.00pm;
(j)Changeover shall be arranged as between Ms K Bilney (for the mother) and Ms U or the paternal grandmother (for the father). Where possible the changeover shall take place at the children’s school, the local McDonald’s Family Restaurant or otherwise the collection will be by Ms K Bilney from the father’s home and return shall be by Ms U or the paternal grandmother to the mother’s home, or by such other person or persons and with such other arrangements as are agreed in writing between the parties.
(k)The mother shall be entitled to telephone the children two (2) times per week at days and times reasonably nominated by the mother and the father shall provide a telephone number for the purpose of such telephone calls and any family violence order precluding these calls is varied to enable the calls to be made.
(l)Such other or alternate times and/or arrangements, including without supervision, as is agreed in writing between the parties.
Injunctions
Each of the parents is restrained by injunction from being part of any changeover or attending within 50 metres of any changeover (except as agreed in writing between the parties).
Both parties are restrained from;
(a)abusing, demeaning or belittling the other or any member of the other party’s family in the presence or hearing of the children;
(b)or allowing or permitting any other person to abuse, demean or belittle the other party or any member of the other party’s family in the presence or hearing of the children.
The mother is restrained by injunction from bringing the children into contact or communication with Ms Y Bilney (the children’s maternal grandmother) for a period of three months from the date of this order.
Section 65L Request
Pursuant to s 65L of the Family Law Act,1975 the assistance of a Family Consultant is requested to aid the parties in moving from supervised time to agreed non-supervised time, after a period of five (5) months from the date of these Orders and once the parties have completed the courses required of them in these orders.

Miscellaneous

Within five (5) months from the date of these Orders the father shall enrol and complete an anger management course conducted by Relationships Australia or some other similar organisation approved by the Independent Children’s Lawyer and provide to the Section 65L Family Consultant and the mother a copy of a certificate of completion of such course.
Within five (5) months from the date of this order the mother shall complete six (6) sessions with Mr L, her psychologist, and provide to the Section 65L Family Consultant and the father a copy an updated report from Mr L as to her treatment and confirming completion of the six (6) sessions.
Within three weeks of the date of these orders the father arrange for the child J to recommence counselling at the Child Adolescent Mental Health Service (CAMHS) and enable the continuation of such counselling for a period of six months or such longer period as it recommended by the counsellor/s at that service.
The father shall ensure that the child C will continue counselling at the Counselling Service at the W Hospital and will not terminate such counselling unless recommend by C’s counsellors.
Within three weeks from the date of these orders the father provide to each the children’s general medical practitioners, CAMHS, the Counselling Service at the W Hospital and any other of the children’s counsellors copies of the report of Ms Y dated 13 April 2012 and these Orders.
The father shall promptly advise the mother of any counsellors and other health professionals, whom are treating the children.
The parties may use such other supervisors as is agreed by them in writing.
The parties shall communicate by way of text message except in the case of an emergency and then they will communicate by way of telephone.
Neither party is to request the children to deliver any messages or to tell the children to tell the other parent anything in relation to the children's welfare care and development; that should be communicated directly between the parents.
Both parties are to notify the other of any change of residential address, postal address, email address or telephone number within forty eight (48) hours of such change.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
These proceedings be removed from the list of cases requiring determination.
All other extant applications (other than costs applications – which are to be made in accordance with the rules) be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The appointment of the Independent Children’s Lawyer is extended for three months from the date of this order to;
(a)Enable him to approve an anger management course for the father; and
(b)To forward to the Department of Child Protection Authorities a copy of these orders, the reasons upon which they are based together with Exhibit ICL1 and Exhibit ICL2.
The parties are given leave to apply on 14 days notice to the other party and the court in respect of undertakings for alternative supervisors and direction in respect of changeovers, if necessary. Such leave to apply to operate up and until 1 November 2013.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bilney & Brisco 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 ADELAIDE

FILE NUMBER: ADC 6474 of 2007

Ms Bilney

Applicant

And

Mr Brisco

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

INTRODUCTION

These are parenting proceedings between Ms Bilney, the mother, and Mr Brisco, the father, in relation to their children; C, aged eight and J, aged seven. The volatile nature of the parties’ relationship has continued following the breakdown of their intimate relationship. The parties’ behaviour and the extent of their animosity has been destructive. Family Consultant, Ms Y, described the situation at paragraph 11 of her April 2012 report:
11)The likely detrimental impact on [the children] of their parents’ (and extended families’) longstanding antipathy which has resulted in the children having relationships repeatedly disrupted with significant others (including relationships with half siblings [T] and [A]) is another major theme in this matter.
The mother claims the father has sexually abused, or facilitated sexual abuse of at least one or both of the children. The mother submitted that the father presents an unacceptable risk to the children.
The father asserts the children are at risk of emotional or psychological abuse in the care of the mother, given her history of failing to comply with orders. The father also claims that children have been subjected to emotional maltreatment in the care of the mother and maternal grandmother.
The parties’ relationship has been destructive by nature and has resulted in the children being exposed to conflict on many occasions. It is the view of the Family Consultant that such history should instil little confidence of the parties’ respective abilities to achieve parental collaboration required for a shared care arrangement.

THE ISSUES

In this case, my task was to determine the issues of parental responsibility, residence, time and communication (having regard to the best interests of these children). Given the conflict between the parties, it is to be expected that few factual matters were agreed upon.
The mother sought orders that she have sole parental responsibility for the children and that the children live with her. She submitted that if the children are not to live with her for the majority of the time, that they should live with her at least half of the time. Further, she said that if the children were to be supervised whilst in her care, that supervision should run for four weeks; from 3pm to 8pm on Friday and each Saturday and Sunday from 10am to 8pm.
The mother’s position changed frequently as the hearing progressed, but essentially she sought that the children live primarily with her. She also sought orders for time to be instituted to allow her to improve her relationship with the children; as at the time of the hearing the mother had not spent time with the children for some 10 months.
The father’s case was that the children should live with him and spend supervised time with the mother. During evidence the father said that he is open to the children spending unsupervised time with the mother at some time in the future.
An Independent Children’s Lawyer was appointed in this matter. The Independent Children’s Lawyer sought orders that the children live with the father and that the father have sole parental responsibility for the children. The Independent Children’s Lawyer proposed that the children spend supervised time with the mother, with no particular arrangements to end the condition of supervision in the future.
This matter has been litigated in the Federal Magistrates Court (as it then was) for a number of years before being transferred to this Court. At one stage the maternal grandmother became a party to the proceedings, however, she withdrew from the proceedings at the commencement of this hearing, with the consent of all parties and support of the Independent Children’s Lawyer.
Each of the parties sought an adjournment of the proceedings at the commencement of the hearing. For reasons which I gave at that time, I did not allow an adjournment. I did facilitate the parties to give evidence in person and to rely on previous affidavits. Throughout the trial, I arranged for the parties to have copies of affidavits and other documents and also allowed them time to reflect on those matters.

BACKGROUND

The parties have been involved in Court proceedings since December 2007 and their conflict is documented in the chronology prepared by the Independent Children’s Lawyer.
At the time of the hearing the father was aged 35; and the mother aged 26, almost 27. There are two children of the relationship; C aged eight and J aged seven. The father has a son from a previous relationship, T who is aged ten lives primarily with him. The mother also has a daughter from a subsequent relationship, A, who is aged four.
In these reasons, any statement of fact is to be regarded as finding of fact unless it is clear to the contrary, given the context of the statements.
At the hearing, both the mother and the father agreed to adopt the chronology prepared by the Independent Children’s Lawyer, as set out in his case outline. That chronology appears below, in full:

CHRONOLOGY

[1959]	The maternal grandmother is born
[1977]	The father is born
[1986]	The mother is born
[2002]	Father’s son [T] is born (mother is [Ms TT])
10/2003	The mother and the father commence a relationship
2005	The mother says the father and the mother cohabited in a for a period of three weeks
[2005]	The child [C] is born
[2006]	The child [J] is born
25/11/2006	The mother says the father and the mother separate, leaving the children in the care of the mother
05/04/2007	Father obtains final order of Family Court for his son [T] to live with him and for him to have sole parental responsibility
06/09/2007	Intervention Order from [a] Magistrates Court against the father and relating to the mother and following various reports to the police made by the mother as to violence perpetrated by the father and which the father denies
21/12/2007	The father files an Initiating Application seeking to spend time with the children
31/01/2008	The mother’s Intervention Order Application is withdrawn by Police
14/02/2008	The mother files a Response to the father’s Initiating Application seeking orders that the children live with her and spend supervised periods of time with the father, supervised by the material grandmother and on the basis of the father’s alleged domestic violence, and alleged alcohol and drug use by the father and his partner [Ms TT]), which the father denies
20/02/2008	Federal Circuit Court order made directing mother to file further Affidavit and adjourning proceedings to 27/02/2008
27/02/2008	Federal Circuit Court order as to the children living with the mother and spending supervised periods with the father supervised by his mother and thereafter increasing to unsupervised overnight periods. Family Report ordered to be completed and matter set for Trial commencing … October 2008
21/05/2008	Federal Circuit Court order made as to children spending supervised periods with the father supervised by his mother during day periods in May and June 2008, and presumably appointment of Independent Children’s Lawyer (order not drawn)
17/06/2008	The mother files an Application in a Case seeking orders that children live with her, an Independent Children’s Lawyer be appointed, the children spending supervised periods with the father, injunctions in respect to the father contacting her and using drugs or alcohol whilst having the care of the children
26/06/2008	Federal Circuit Court order directing case be adjourned for interim argument [in] July 2008 and filing of further Affidavit material by mother and Independent Children’s Lawyer
26/06/2008	The father files a Response to the mother’s Application in a Case seeking to dismiss the mother’s Application, and a supporting Affidavit wherein he denies any wrongdoing and alleges that the mother has fabricated evidence against him
01/07/2008	The mother files an Amended Response and wherein she seeks orders that the children live with her and spend supervised periods with the father at the … Children’s Contact Service and thereafter as ordered by the Court, the father undergo random drug and alcohol testing, and injunctions re father’s behaviour
01/07/2008	The mother files an Affidavit raising allegations regarding the father’s mother supervising the periods that the children spend with the father and the father’s parenting of the children and behaviour towards the mother
01/07/2008	The mother files Notice of Child Abuse or Family Violence
01/07/2008	The maternal grandmother files an Affidavit in support of the mother and confirms various allegations made previously by the mother about the father’s conduct. Confirms mother is pregnant and due to give birth in December 2008
03/07/2008	Federal Circuit Court order directing case be adjourned to July 2008
04/07/2008	Federal Circuit Court order regarding children spending time with the father with his mother substantially present and with overnight periods to take place at her home on an increasing basis culminating in consecutive overnight periods and with all handovers at [the] Police Station
09/07/2008	The Independent Children’s Lawyer files Affidavit attaching copies of subpoenaed SA Police records of father and letter indicating father has ten pending charges of failing to comply with Intervention Order
14/08/2008	The father files an Amended Initiating Application seeking final orders that the children live with him and spend time with the mother during each alternate weekend and on special occasions
31/08/2008	The Family Report of psychologist Ms [V] is provided and wherein she recommends that the children live with the father and spend time with the mother during each alternate weekend, the mother undergo a psychiatric assessment, the child [C] have a speech therapy assessment and counselling from the Child & Adolescent Mental Health Service
25/09/2008	Federal Circuit Court order vacating the Trial commencing October 2008 and listing Trial commencing November 2008
03/11/2008	The father files his Trial Affidavit
06/11/2008	The mother files her Trial Affidavit
20/11/2008	Federal Circuit Court order regarding children living with the mother and spending regular periods of overnight time with the father on a “four days on / four days off” basis and various injunctive and other orders. The Independent Children’s Lawyer is discharged and the case dismissed
12/2008	Mother’s daughter [A] is born
31/12/2008	The mother files an Application in a Case seeking an order in respect to the recovery of the children and files supporting Affidavit material making allegations in respect to the father’s parenting of the children and alleging the father refused to return the children to her [in] December 2008
12/01/2009	Federal Circuit Court order directing matter be adjourned 23 April 2009 as consequence of mother’s failure to appear
12/01/2009	The mother files Notice of Discontinuance regarding her Application in a Case
23/01/2009	Families SA inform the mother in writing that it has investigated her claims and the allegation of sexual abuse made by her against the father is not confirmed
17/06/2009	The mother files an Initiating Application seeking orders for the discharge of the previous order, that the children live with her and be parentage tested, the children spending supervised periods of day-only time with the father, the father completing anger management and alcohol treatment programs, and the father’s partner [Ms TT] being restrained from coming into contact with the children
25/06/2009	The father files an Application re Contravention alleging the children were not provided to him by the mother on various occasions
29/06/2009	The father files a Response to the mother’s Initiating Application seeking an order dismissing the mother’s Initiating Application, and an Affidavit which denies any wrong doing on his part and makes mention at paragraph 3 of ending the parties’ “on again, off again” relationship, and denying any relationship with [Ms TT]
08/07/2009	Federal Circuit Court order directing the father’s Application re Contravention and the mother’s Initiating Application be listed for hearing [in] August 2009
10/08/2009	Federal Circuit Court order finding mother guilty in respect to three counts of breaching without reasonable excuse the current order and ordering the mother to attend a post separation parenting program and entry into good behaviour bond, make-up time, the re-appointment of the Independent Children’s Lawyer, and parentage testing for children
21/08/2009	The father files a further Application re Contravention alleging the children were not provided to him by the mother on various occasions
03/09/2009	The mother files an Application in a Case seeking order in respect to the striking out of all orders and the transfer of the case to the Family Court
08/09/2009	Federal Circuit Court order in respect to the costs of the parentage testing
25/09/2009	Parentage testing shows the father to be father of both of the children
02/10/2009	The father files a further Application re Contravention alleging the children were not provided to him by the mother on various occasions
07/10/2009	Federal Circuit Court order directing that the father’s Application re Contravention filed [in] October 2009 and the mother’s Application in a Case filed [in] September 2009 be heard [in] November 2009
14/10/2009	Federal Circuit Court order adjourning further consideration to Directions Hearing [in] November 2009
16/10/2009	The mother files an Application in a Case seeking orders that the children live with the mother, a family assessment be undertaken, and the father be restrained from spending time with the father, and on the basis of her concerns for the children’s safety whilst in the father’s care
21/10/2009	The mother issues a Subpoena to SA Police regarding incident [in] September 2009
22/10/2009	Federal Circuit Court order regarding the completion of further Family Report and the fixing of a Trial [in] April 2010 and associated orders, and the hearing of the father’s Application re Contravention and the mother’s Application in a Case [in] November 2009 as previously ordered
26/10/2009	The mother files an Application in a Case seeking a more urgent listing of the father’s Applications re Contravention and the mother’s Application in a Case and for the periods of time that the children spend with the father to be supervised, and on the basis of her concerns for the children’s safety whilst in the father’s care
04/11/2009	Federal Circuit Court order directing the father’s Applications re Contravention be heard [in] January 2010, the vacating of the Trial [in] April 2010, and the transfer of the remaining outstanding matters to the Family Court
18/11/2009	The mother files an Application in a Case seeking a suspension of the current orders regarding the children spending time with the father, the children spending periods of day-only time with the father, the father completing anger management and alcohol treatment programs, and the father’s girlfriend being restrained from coming into contact with the children and injunctions preventing contact between the father and the mother, and on the basis of her concerns for the children’s safety whilst in the father’s care
17/12/2009	Family Court order as to Section 11F Non-Privileged Family Dispute Resolution Conference and further consideration adjourned to January 2010
18/01/2010	Family Consultant [Dr B] reports to the Court following Section 11F Conference as to the father seeking shared care, the mother being unsure she can comply with future orders as she needs to keep the children safe, and recommending that the mother be psychiatrically assessed
21/01/2010	Family Court order referring all matters back to Federal Circuit Court [in] January 2010
25/01/2010	Federal Circuit Court order adjourning all outstanding matters to February 2010
03/02/2010	Federal Circuit Court order reserving Judgment in respect to the father’s Applications re Contravention, and psychiatric assessment of the mother
22/02/2010	Judge Simpson delivers Reasons for Judgement and convicts the mother of six breaches of the current order, and orders penalty to be considered [in] April 2010
20/04/2010	The Independent Children’s Lawyer files an Affidavit to which is attached the mother’s psychiatric assessment dated March 2010 and obtained from psychiatrist Dr [E]
23/04/2010	Federal Circuit Court order regarding the children living with the father until June 2010 and injunction preventing the mother from coming into contact with the children during that period and adjourning further consideration to June 2010
27/04/2010	The mother files an Application in a Case seeking the discharge of the aforementioned order, that the children live with the mother and spend alternate weekends with the father, that the father be psychiatrically assessed and the Independent Children’s Lawyer be removed
27/04/2010	The mother files Notice of Child Abuse or Family Violence alleging possible sexual abuse by the father of the child [J]
03/05/2010	The mother files an Application in a Case seeking orders for the mother to spend time with the children on Mother’s Day, for the children to live with the mother and to spend day time periods with the father each alternate weekend and injunctions preventing the father drinking alcohol and smoking indoors whilst the children are in his care and for the father’s girlfriend to be restrained from coming into contact with the children, and on the basis of her concerns for the children’s safety whilst in the father’s care
12/05/2010	Federal Circuit Court order dismissing the mother’s Application in a Case filed [in] April 2010
14/05/2010	The mother files an Application in a Case seeking orders that the children spend time with her pending 30 June 2010
27/05/2010	The Independent Children’s Lawyer issues a Subpoena to Families SA for the children’s records
08/06/2010	Federal Circuit Court order directing the father to file responding documents and adjourning further consideration of all matters to 24 June 2010
15/06/2010	The father files an Application re Contravention alleging the mother breached the order dated April 2010
24/06/2010	Federal Circuit Court order dismissing the mother’s Applications in a Case filed May 2010 and May 2010 and ordering that children spend time with the father in accordance with order dated November 2008 from 4 July 2010 onwards and adjourning all matters to 13 August 2010
05/07/2010	The mother files an Application in a Case seeking orders that the children live with her and that the periods of time that the children spend with the father be suspended on the basis that the father has been sexually abusing the children
05/07/2010	The mother files Notice of Child Abuse or Family Violence alleging sexual abuse by the father of the children
06/07/2010	The father files an Application re Contravention alleging the mother has breached the order by failing to allow the children to spend time with the father [in] July 2010
20/07/2010	The Independent Children’s Lawyer issues Subpoenae to SA Police regarding the recent allegations of sexual abuse made by the mother, and to the children’s general practitioner for their medical records
02/08/2010	The Independent Children’s Lawyer files an Affidavit to which is attached copies of subpoenaed material produced by Families SA
09/08/2010	The father files an Application re Contravention alleging the mother has breached the order by failing to allow the children to spend time with the father on various dates
10/08/2010	The Independent Children’s Lawyer issues a further Subpoena to obtain the children’s medical records from their general practitioner
13/08/2010	Federal Circuit Court order adjourning all matter to August 2010 for interim argument
18/08/2010	The father obtains a Domestic Violence Restraining order against the mother through the … Magistrates Court
20/08/2010	Federal Circuit Court order restraining the parties from denigrating each other or discussing the Court proceedings within the presence of the children, and from contacting or approaching one another, the children to live with the father from 6.00 p.m. that evening until further order, convicting the mother in relation to count one of the Application re Contravention of the father filed June 2010, and counts 1, 2, 3 and 4 of the Application re Contravention of the father filed on August 2010 and adjourning all outstanding matters to September 2010
20/08/2010	The mother fails to deliver up the children to the father
01/09/2010	Federal Circuit Court order regarding the finding of and the recovery of the children by the Australian Federal Police, the children living with the father until further order, and adjourning further consideration of matter to September 2010
06/09/2010	Children recovered from mother by Australian Federal Police and placed in the care of the father
16/09/2010	Federal Circuit Court order directing parties to file further Affidavit material and adjourning further consideration of matter to October 2010
19/10/2010	Federal Circuit Court order restraining the mother from approaching or contacting the children’s school or kindergarten
15/11/2010	The mother files an Application in a Case seeking orders regarding the reinstatement of the previous order dated November 2008 and the case finalised
19/11/2010	Federal Circuit Court order regarding penalties to the mother relating to Applications re Contravention filed by the father for the children to live with the father until further order and for the mother to be restrained from coming into contact with the children
22/11/2010	Federal Circuit Court order adjourning all outstanding matters to December 2010
03/12/2010	The mother files an Affidavit to which is attached the report of her psychologist Mr [L] dated November 2010
15/12/2010	Federal Circuit Court order dismissing the mother’s Application in a case filed November 2010, and adjourning further consideration of all matters to 9^th March 2011 and with an order that the children not have any contact with the mother until such time as the mother can satisfy the Court by way of further Application and supporting Affidavit evidence of the proper addressing by her of her personality disorder and her willingness to comply with Court orders
21/12/2010	The maternal grandmother files an Initiating Application with the Federal Circuit Court seeking orders that the children spend each alternate weekend with her
23/12/2010	The father obtains through the … Magistrates Court a variation to the Domestic Violence Restraining Order against the mother and in order to include the children
31/12/2010	The mother files an Application in a Case seeking orders regarding the return of the children to her care and the resumption of the operation of the order dated November 2008
19/01/2011	The father files a Response to the mother’s Application in a Case seeking to have the mother’s Application dismissed and for the children to remain living with him
24/01/2011	Federal Circuit Court order directing the children to spend supervised periods of time with the mother at a Children’s Contact Service, the mother’s Application in a Case filed December 2010 be dismissed, the father be restrained from allowing the children to come into contact with [Ms TT], and the preparation of a further Family Report, a Trial to commence [in] July 2011 and associated orders
09/02/2011	Father pleads guilty in the local Magistrates Court to one count of assault in relation to an altercation between the father, the mother and the maternal grandmother, and receives a without conviction penalty of $400
07/02/2011	The mother files an Application in a Case seeking orders regarding her being permitted entry to the grounds of the child [J’s] kindergarten at [the] Child Care Centre at [R] in order to collect and deliver her daughter [A], and for orders to spend unsupervised and make up periods of time with the children
17/02/2011	The mother issues Subpoenae … for the father’s employment records and to [Ms TT] to give evidence,
25/02/2011	The Independent Children’s Lawyer files an Affidavit in respect to drug and alcohol testing undertaken by the father and the mother, and the prescribing of Capadex, a now banned pain killer, and Endep, an anti-depressant, to the mother
09/03/2011	Federal Circuit Court order noting the Trial date [in] July 2011 and making no further orders
15/03/2011	Federal Circuit Court order regarding the maternal grandmother spending supervised periods of time with the children at [Contact Centre 1]
18/03/2011	The mother files an Application re Contravention and in respect to the father’s alleged failure to take the child [J] to the kindergarten at the … Child Care Centre on various dates
21/03/2011	The mother files an Application in a Case seeking orders regarding the children living with her and for them to spend supervised periods of time with the father and on the basis that the children are being improperly cared for by the father
25/03/2011	The Family Report of psychologist Dr [B] is provided and wherein it is recommended that the children live with the father, spend supervised periods of time with the mother, the mother continue her therapeutic intervention, the father seek counselling and the child [C] attend the Relationships Australia ikids program
29/03/2011	The Independent Children’s Lawyer issues a Subpoena to Department of Education for the children’s school and kindergarten records
30/03/2011	The mother issues Subpoenae to Ms [Z] and Ms [GG] of [R] Primary School to give evidence and produce documents
01/04/2011	The mother files an Application in a Case seeking orders regarding the disqualification of Judge Simpson
08/04/2011	Federal Circuit Court order adjourning all matters to April 2011
11/04/2011	The mother files an Application re Contravention and in respect to the father allegedly permitting the children to come into contact with [Ms TT]
14/04/2011	Federal Circuit Court order disqualifying Judge Simpson and adjourning the matter to a date to be fixed
15/04/2011	The mother files an Application in a Case seeking orders regarding the children living with the mother and spending day periods of time with the father each alternate weekend
19/04/2011	The mother files an Application in a Case seeking orders regarding the children living with the mother
27/04/2011	The mother files an Application re Contravention and in respect to the father allegedly refusing to bring the children to [Contact Service 1] [in] April 2011
04/05/2011	The maternal grandmother files an Application in a Case seeking orders regarding the children spending unsupervised day periods of time with her each alternate weekend
12/05/2011

16/05/2011	Federal Circuit Court order of Judge Cole noting the submissions of the Independent Children’s Lawyer regarding the Trial, directing the father to file responding material to the mother’s various Applications and transferring the case to the Family Court
20/05/2011	The mother files an Application in a Case seeking orders regarding the children living with the mother and spending supervised periods of time with the father at a Children’s Contact Service and an order restraining the father from having any contact with the children outside the Children’s Contact Service
01/06/2011	Family Court order consolidating the applications of the mother and the maternal grandmother, sundry orders relating to same and matter generally, an order pursuant to Section 69ZW for the production by Families SA of information regarding the children, and one drug test by the father at the request of the Independent Children’s Lawyer
03/06/2011	The father files a Response to the mother’s Applications in a Case seeking to have them dismissed and for the children to live with the father and spend supervised periods of time with the mother
03/06/2011	The father files an Application re Contravention and wherein he alleges that the mother abused the father’s neighbour Mr [N] whilst the child [C] was with Mr [N]
03/06/2011	The Independent Children’s Lawyer requests by ordinary mail that the father undergo drug and alcohol testing
06/06/2011	The Independent Children’s Lawyer issues a Subpoena to the SA Police regarding the records of the parties
07/06/2011	The father returns a clear drug and alcohol test result
10/06/2011	The maternal grandmother is convicted of Act Likely To Cause Harm relating to her previously ramming her motor vehicle into that of the father and is given a suspended six month sentence and made subject to a three year good behaviour bond
14/06/2011	The maternal grandmother files an Application re Contravention and wherein she alleges that the father prevented her from spending supervised periods of time with the children at [Contact Service 1] in accordance with the current order
20/06/2011	The Independent Children’s Lawyer files an Affidavit to which is attached a letter from [Contact Service 1] regarding the cancelling of the supervised periods between the maternal grandmother and the children due to the father’s refusal to allow same following the maternal grandmother’s criminal conviction
21/06/2011	The Independent Children’s Lawyer files an Affidavit to which is attached a letter from Child & Adolescent Mental Health Service and regarding the observations of the children and recommending that the children have counselling
21/06/2011	The Independent Children’s Lawyer issues Subpoenae to obtain the maternal grandmother’s medical and psychological records from her general practitioner and her psychologist Mr [L]
27/06/2011	The Independent Children’s Lawyer files an Affidavit to which is attached the report of [Contact Service 1] regarding the supervised periods between the mother and the children
28/06/2011	The father files an Amended Response to the mother’s Initiating Application seeking orders for the children to live with him and spend supervised periods with the mother, and for the mother to have psychiatric treatment
30/06/2011	Family Court order dismissing the father’s Application re Contravention filed June 2011, adjourning the other Applications re Contraventions to July 2011 before a Registrar, and matters generally to the Magellan case list [in] September 2011 and ordering that during the period of the adjournment the children live with the father and spend supervised periods with the mother at [Contact Service 1], and the order previously permitting the maternal grandmother to spend supervised periods with the children is suspended
02/09/2011	The Independent Children’s Lawyer files an Affidavit to which is attached the further report of [Contact Service 1] regarding the supervised periods between the mother and the children
05/09/2011	The mother files an Application in a Case seeking orders regarding the recommencement of the order dated November 2008 and that all outstanding applications of the mother be dismissed
05/09/2011	Family Court order that all of the mother’s and the maternal grandmother’s outstanding applications save and except for their Initiating Applications do stand dismissed and adjourning case to allow the criminal proceedings of the parties to be finalised, and directing the mother to file further material regarding suitable supervisors for future periods that the children may spend with the mother, and ordering that during the period of the adjournment the children live with the father and spend supervised periods with the mother at [Contact Service 1], and the order previously permitting the maternal grandmother to spend supervised periods with the children is suspended
27/09/2011	The Independent Children’s Lawyer files an Affidavit to which is attached a copy of a letter forwarded by [Contact Service 1] to the mother and regarding the taping by the mother of the supervised periods between the mother and the children
28/09/2011	The Independent Children’s Lawyer files an Affidavit to which is attached a copy of a letter received from Junior Primary Principal Ms [Z] and regarding the children’s behaviour at [R] Primary School
17/10/2011	The mother files an Application re Contravention and wherein she alleges that the father failed to permit her to spend time with the children on two occasions
17/10/2011	Family Court order that the children live with the father and spend supervised periods with the mother on each occasion offered and with the maternal grandmother present at each alternate occasion offered at [Contact Service 1] pending the availability of [S] Contact Service
30/01/2012	The Independent Children’s Lawyer files an Affidavit to which is attached the further report of [Contact Service 1] regarding the supervised periods between the mother and the children
23/02/2012	The mother files an Application in a Case seeking orders for the children to live with the mother and that the father be psychiatrically assessed and do complete an anger management course, and an order for the mother to spend more time with the children
01/03/2012	The Independent Children’s Lawyer files an Affidavit to which is attached the further report of [Contact Service 1] regarding the supervised periods between the mother and the children
05/03/2012	Family Court order directing that a further Family Report be prepared and for the children to live with the father and spend supervised periods with the mother such periods to be supervised by the mother’s friend Ms [G] and restraining the maternal grandmother from attending those periods
13/03/2012	The Independent Children’s Lawyer files an Affidavit to which is attached copy correspondence regarding the mother’s supervisor Ms [GG]
13/03/2012	The Independent Children’s Lawyer issues Subpoenae to the SA Police for the parties’ records and to Child & Adolescent Mental Health Service for the children’s records
19/03/2012	The mother files an Application re Contravention and wherein she alleges that the father failed to permit her to spend time with the children on one occasion
02/04/2012	The mother files an Affidavit to which is attached a copy of the handwritten notes of the mother’s supervisor Ms [G’s] observations of the supervised periods
13/04/2012	The Family Report of Family Consultant Ms [Y] is provided and wherein she recommends that the children live with the father, that he have sole parental responsibility, and spend day periods of supervised time with the mother each week supervised by Ms [G], and the mother and the maternal grandmother do undergo psychiatric assessments by Dr [E] and once obtained consideration be given to an updated family assessment
23/04/2012	The mother files an Affidavit to which is attached a copy of the further handwritten notes of the mother’s supervisor Ms [G’s] observations of the supervised periods
30/05/2012	The mother files an Application in a Case seeking orders for the children to live with the mother and for the maternal grandmother to be permitted to spend time with the children, and that the father be psychiatrically assessed and the children prevented from attending at [R] Primary School and following concerns by the mother in respect to comments made by the child [C] to her during a supervised period
05/06/2012	Family Court order dismissing the mother’s Application re Contravention filed March 2012 and adjourning matters to July 2012
12/06/2012	The mother files an Application in a Case seeking orders for the children to live with the mother and that the father and the maternal grandmother be psychiatrically assessed and that the father do complete an anger management course, and an order for the father to spend supervised periods of time with the children, and the children to have counselling at Child & Adolescent Mental Health Service with the mother present
27/06/2012	The mother files an Affidavit to which is attached a copy of the further handwritten notes of the mother’s supervisor Ms [G’s] observations of the supervised periods
17/07/2012	Ms [G] advises the Independent Children’s Lawyer in writing that she is no longer available to supervise the periods of time that the children are to spend with the mother due to an unspecified change in her personal circumstances
19/07/2012	Family Court order dismissing the mother’s Application in a Case filed May 2012 and June 2012 and adjourning the question of the supervision of the mother’s periods spent with the children to September 2012, and directing the parties to register with the [S] Contact Service
02/08/2012	The Independent Children’s Lawyer files an Affidavit to which is attached copies of the psychiatric assessment reports of Dr [E] dated July 2012 and relating to the mother and the maternal grandmother
06/08/2012	The Independent Children’s Lawyer files an Affidavit to which is attached correspondence passing between him and the parties, and wherein the issue of the conduct of the father’s neighbour Mr [N] towards the children is raised
09/08/2012	The Independent Children’s Lawyer files an Affidavit to which is attached correspondence received from the father relating to the father’s neighbour Mr [N] and to which is attached a copy of the Paedophile Restraining Order relating to Mr [N]
13/08/2012	The mother files an Application in a Case seeking new orders for the care arrangements for the children
07/09/2012	Family Court order noting the mother is advised to seek legal advice in relation to her apology to the Court for her offensive remarks, and the mother is advised to seek counselling in relation to her attitude towards the children, the proceedings and the Court, orders made dismissing the mother’s Application in a Case filed August 2012 and continuing the current order for the children to live with the father
18/09/2012	The Independent Children’s Lawyer files an Affidavit to which is attached the transcript of the hearing held at the Family Court [in] September 2012
24/09/2012	The mother files an Application in a Case seeking orders that the Honourable Justice Dawe do disqualify herself and the case be returned for hearing before the Federal Circuit Court
08/11/2012	The mother files an Application in a Case seeking orders that the children live with the mother and spend supervised periods of time with the father at a Children’s Contact Service, and injunctions preventing the father from otherwise approaching or communicating with the children and from his family and friends approaching or communicating with the children
08/11/2012	The maternal grandmother files an Affidavit in support of the mother and making criticisms of the father
19/11/2012	Family Court order dismissing the mother’s Applications in a Case filed September 2012 and November 2012 and directing the father to file an Affidavit as to when he became aware of the allegation made by [C] that [C] had been sexually abused by the father’s neighbour Mr [N]
04/12/2012	The father files an Affidavit stating that Mr [N] was arrested [in] August 2012 in relation to the sexual abuse of the father’s son [T Brisco], and the child [C] was interviewed by the SA Police [in] September 2012 regarding the possible sexual abuse of the child by the father’s neighbour Mr [N] and making criticism of the conduct of the mother and the maternal grandmother
14/03/2013	Family Court order setting case for Trial commencing 6 May 2013 and associated orders
02/04/2013	The mother files an Application in a Case seeking orders that the children spend time with her during specified periods each weekend for a period of four weeks, and thereafter for a “much larger” amount of time and for other specified periods, and that the father undergo a psychiatric assessment

EVIDENCE

The Independent Children’s Lawyer prepared a book of documents to be relied upon, which was tendered in evidence. One of the documents contained in the book was a report from Psychologist, Ms V. At the commencement of the hearing, the mother indicated that she did not accept that report. I was therefore required to determine whether that report was to be included as part of the material before me. Mr McQuade, counsel for the Independent Children’s Lawyer, raised material from that report in his submissions, and the mother objected to the use of that material.
Ms V was not called to give evidence, and as such, I have not given any weight to her report.

The family consultant, Ms Y

The Family Consultant, Ms Y, gave evidence in accordance with her report dated 13 April 2012. This report formed part of the book of documents prepared by the Independent Children’s Lawyer. There was no issue as to her qualifications. There was certainly an issue, at least on behalf of the mother, as to the conclusions she came to. I note those issues.
The Family Consultant, Ms Y, was cross-examined by counsel for the Independent Children’s Lawyer and each of the parties. I quote from her report, where she stated at paragraph 61:
… [the maternal grandmother’s] forthright and continuing denigration of [the father] is likely to thwart or sabotage any such endeavor [sic] on her part, particularly in view of the fact that [the mother] resides with [the maternal grandmother]. Such entrenched views of the father as a child molester and of the children therefore being at risk of harm in his care (neither of which have been substantiated by statutory authorities) were reportedly major contributors to the mother’s decision to defy Orders and abduct the children in 2010.
She went on to conclude her thoughts in paragraphs 62 through to 67 of her report:
62.Current social science research refers to abductors of children in terms of them being driven by blame or the need to punish the other parent and that they are often obsessed alternatively with desires for reconciliation and fantasies for revenge with a concomitant incapacity to reflect on the children’s lived experience of their behaviours. Abducting parents are also more likely to have narcissistic personality traits in which they feel entitled to flaunt the authority of the courts with impunity and without any consideration of the other parent’s rights or value to the children. (In The Name of the Child, Janet Johnston, 2009, Chapter 12, page 342) Such narcissistic vulnerabilities can reportably escalate under stress (such as the stress or fear of losing custody of the children) resulting in the harbouring of intense hostility and abiding distrust of the other parent. Such descriptions, in the writer’s view, can be attributed to [the mother] in this matter, which gives rise to concerns for the children’s safety in her unsupervised care at this point in time.
63.Although [the mother] was able to acknowledge in interview that the children seemed to be “doing okay” since living full time with [the father], she tempered these remarks with a negative view that the children always seemed sick since living with their father (as did her mother in her interview) which suggests that she will need some ongoing support and assistance to shift her seemingly fixed and longstanding belief the children will come to harm in [the father’s] care. Although [the mother] and [the maternal grandmother] both denied the children’s claims of having been duct taped by their mother and being forced to watch terrifying movies, the children’s claims are reminiscent of descriptions of “severely narcissistic and sociopathic parents” who view children as “no more than a weapon of punishment and revenge, a trophy and a tool for tormenting and manipulating [the other parent]. They deliberately seek to sabotage damage or destroy their child’s relationship with the other parent with impunity and appear oblivious that in the process they are emotionally abusing their child”. (In The Name of the Child, Janet Johnston, 2009, Chapter 13, page 368) Again such descriptions seem to resonate with descriptions of both [the mother] and [the maternal grandmother] in all three of the family reports undertaken in these proceedings.
64.It is the writer’s view that further information is needed about the mother’s mental health (and future prognosis) before any consideration is given to changing the current Orders or removing the supervision requirement of her time with the children, especially in view of the psychiatric report by Dr [E] which identified some worrying concerns about the mother. In interview [the mother] herself felt that an updated psychiatric report was needed as she believed that her views about [the father] and the astonishing non-compliant behvaiours that have characterized her (and her mother’s) involvement in this parenting dispute had significantly changed in the two years since Dr [E’s] report was written.
65.In regard to the maternal grandmother, who is also a party to these proceedings, her hatred of the father was almost palpable during her interview for this assessment. Her animosity and dislike of [the father] has no doubt been exacerbated by her attracting a criminal conviction for allegedly ramming [the father’s] car with her motor vehicle in the context of her consistent claims that she was not the driver of her car at that time and that she has been set up by the father. Although observations revealed the children to be comfortable in her presence, it is difficult to support her spending unsupervised time with the children whilst she holds such a fixed negative view about [the father]. A psychiatric assessment on [the maternal grandmother] may assist to shed some light on whether she can be assisted to alter her views of [the father] so that the children are not exposed to her intense antipathy toward their father when they are in her or their mother’s presence.
66.Other information that supports a continuing cautious approach in regard to any changes to existing parenting arrangements were the views expressed by the children during the course of this assessment when both separately identified feeling more comfortable spending time with their mother with Ms [G] being present. Both children identified wanting to continue to spend time with their mother each week with both expressing a willingness to extend the currently 4-hourly visits to a “whole day”. Telephone communication with Ms [G] confirmed that she would be able to continue to make herself available each Saturday (her only day off) to supervise [the mother] for the foreseeable future.
67.Observations and interviews with the children for the purpose of this report would appear to indicate that the children are well settled with their father, [T] and paternal grandparents and that the father, with support from his parents, is providing a safe and stable environment for the children. Although contact was not possible with the children’s school prior to the release of this report, information from CAMHS subpoenaed documents for May 2011 provides positive reports on the nature of [the father’s] relationship with the children at that time which is consistent with information obtained from observations and interviews for this assessment.

I have had regard to her evidence; I believe her to be a credible witness and conclude that her evidence is soundly based. The Family Consultant set out her recommendations in paragraph 68:
•That an updated psychiatric assessment by Dr [E] be conducted on the mother and that such an assessment include, if appropriate, referral options for long term therapy for the mother with a psychologist or psychiatrist experienced in treating personality disorders.
•That in the meantime, the current Orders continue namely that the children live with their father and that he has sole responsibility for their care and that the children spend time with their mother each Saturday supervised by Ms [G]
•That consideration is given to the 4-hourly visits between the mother and children extending to 6-hourly visits (i.e. from 10 AM until 4 PM) provided that Ms [G] is still able to supervise such visits.
•That a psychiatric assessment be undertaken on the maternal grandmother before consideration is given to supporting her wish to spend supervised or unsupervised time with the children
•That consideration be given to a further updated family report after more information is available about the mother’s and maternal grandmother’s mental health with a view to assisting in determinations about long term parenting arrangements.
•Should there be any dispute between the parties about the children’s progress at school, that more recent information is obtained from [R] Primary School when Term 2 commences (and that the mother be at liberty of obtaining regular school reports and school photos of [C] and [J]).
As at the date of the hearing, the mother had not seen the children since July 2012. The Family Consultant was aware of those circumstances, and noted that Ms G, the former supervisor, is no longer available to assist. She said that the mother’s interaction with the children has not improved and her view was that the time the mother spends with the children should be supervised.
In reference to the mother spending unsupervised time with the children, the Family Consultant deposed that the parties were still unable to protect the children from their conflict. She said she believed the children would be influenced by both the mother and the father. The Family Consultant said that the mother had been offered supervised time, but had not taken up the offer. She observed that the mother put the conflict above the needs of the children. The strong view of the Family Consultant was that the maternal grandmother would not be a suitable supervisor. I accept that evidence.
Based on the submissions of the Independent Children’s Lawyer and given the concerns expressed by the Family Consultant, I draw the inference that no contact with the mother would be preferable to unsupervised time, given the impact on the children of the parties’ conflict.
The evidence of the Family Consultant was that the children would benefit from the continued assistance of the Child Adolescent Mental Health Service (CAMHS), notwithstanding the views of the father. I had planned to make that order, however, the father disclosed in his evidence that C was attending sessions with a counsellor at the W Hospital. I have made an order requiring that counselling continue.
I have also made an order to enable the mother to make enquiries of those healthcare professionals, so that she remains informed as to the children.

Dr E

Dr E is a psychiatrist who prepared reports in relation to the mother. His reports were published on 30 March 2010 and 26 July 2012 and formed part of the book of documents prepared by the Independent Children’s Lawyer. A report was also tendered in relation to the maternal grandmother. In his March 2010 report, Dr E said of the mother:
The manner in which [the mother] holds onto a belief despite evidence to the contrary and utilises hyperbole to maintain her belief, although leading to a distortion of reality is not diagnosed as a psychotic disorder, but diagnosed as part of her personality disorder.
Dr E goes on to say:
I specifically canvassed with [the mother] her thoughts regarding herself, either harming herself or the children. These were not present.
Dr E expressed the view that the mother did not pose a physical risk to the children, and neither party nor the Independent Children’s Lawyer made submissions to that end. Dr E also states:
However, their absence does not mean that such actions could not be possible because of the above-mentioned psychological mechanism of hiding unpalatable ideas. She told me she had never threatened to harm the children. Whilst it is difficult to predict the future, and having regard to the manner in which she does distort her reality of life, I was nevertheless encouraged by the lack of impulsive or dangerous behaviours in her history, which suggest to me that the likelihood of her acting in a dangerous manner to herself or the children is low.
In his report of 26 July 2012, Dr E opined of the mother:
In summary therefore, [the mother] of the children, has a maladaptive and inflexible personality which has not benefited from brief intervention. She remains under the influence of [the maternal grandmother], to whom she would look up to as a source of stability and guidance. [The mother] demonstrated some awareness of the importance of adhering to Court Orders in the interview, but I am not confident of her ability to do so. The evidence is the children are being affected by the conflict between the parties and it does not appear likely that Court Orders would be sufficient to structure a harmonious relationship between the parties.
As to the children’s maternal grandmother, Dr E stated:
[The maternal grandmother], is a woman with greater life experience, closely relates to and I believe would have influence over [the mother]. She takes no responsibility for her offending behaviour and is hostile in her attitude to the father. I do not believe that Court Orders would be sufficient for her to change her attitude and behaviour towards the father.
Dr E read the mother’s affidavit of 12 June 2012 and said that it was clear the mother’s view of the father had not shifted. From this, Dr E concluded that the treatment the mother had undertaken to date had not been effective and his view was that she remained the same. Dr E was not challenged as to his qualifications. He was asked questions about the children which fell outside the scope of his qualifications and I have given no weight to such questions. I am satisfied with his professional evidence; it is both credible and reliable.

The mother

I note that the mother gave evidence that she would comply with orders of this Court. She has a history of failing to comply with Court orders; she did not comply with the orders of Dawe J. I am not convinced the mother will comply with the orders unless she makes up her mind to do so.
The mother relied on a series of affidavits in her evidence, including that of 2 April 2013, 8 November 2012, 13 August 2012, 27 June 2012, 12 June 2012, 30 May 2012, 24 April 2012, 2 April 2012, 23 February 2012, 19 September 2011, 28 June 2011, 20 May 2011, 19 April 2011, 1 April 2011 and 17 June 2009. In addition, the Independent Children’s Lawyer tendered the affidavit of the mother filed 16 August 2010, which contained some drawings by the children.
The mother sought to tender excerpts from a significant volume of audio recordings she has made of interactions between herself and the children at changeovers. I asked her to refine the recordings to those she wished to tender. Eventually, she relied upon five short recordings, which were tendered in evidence. The first of those recordings was made on 4 July 2010.
I find that regard must be given to the context of the parties’ acrimonious relationship. The parties had been in constant conflict whilst sharing the care of the children up until about April 2010. I am satisfied that the mother was, most likely, the primary carer of the children up until that time and did not welcome the father’s involvement in the children’s lives. That is not to say that the father was not attached to the children or was not significantly involved in their lives at that time.
The matter came before a Federal Magistrate (as they then were), who ordered make-up time for a period of 10 weeks. After this time with the father, the children were returned to the mother on about 30 June 2010.
The mother’s case is that when the children were returned to her care after spending time with the father, she observed rashes and swelling in their genital areas. She said she found some substance in her daughter’s genitalia which caused her to come to the conclusion that J had been sexually abused.
The father’s case is that the mother had formed this view as a way to prevent him from having any communication with the children.
I will deal with this matter later in these Reasons, but as a result of these allegations, the children were examined by medical practitioners and the mother did not allow the children to spend time with the father in accordance with the orders. This continued until a recovery order was made in September 2010, after the mother had absconded with the children, and in the latter part had gone to South Wales.
The consequences of the mother’s actions have been profound. The children were removed from her care and placed in the primary care of the father, where they have remained since that time.
The mother has made numerous applications in respect of the children since that time. In March 2012, Justice Burr, of this Court made an order for a supervisor to facilitate visits with the children. This arrangement operated fairly well for a period of five months, with the mother spending supervised time with the children each Saturday. Unfortunately, the dynamics of both parents and their inability to communicate well impacted upon the supervisor and she was unable to continue supervision.
Following this, the only alternative option available for supervision was through the Children’s Contact Service. The mother was particularly angry as a consequence of that outcome, and has not taken the opportunity for supervised time through the Children’s Contact Service.
I have had regard to the recordings, particularly the one on 4 July which the mother sought to show that the children didn’t want to go to the father. I find, that in fact, it shows that the mother asked both leading and direct questions of the children to elicit answers which she believed would assist her case.
The mother has a tendency to exaggerate or expand her evidence. In particular, I note the evidence in relation to the children’s drawings. It is clear that the mother’s views are fixed and determined and therefore I treat her evidence with caution

The mother’s sister, Ms K Bilney

The mother’s sister, Ms K Bilney, gave oral evidence. She tendered a police certificate showing that she was approved to look after children. She is unemployed, but teaches Sunday school to a group of eight-year-old children.
The mother’s sister said if she was approved as a supervisor, she would be impartial and not biased. However, it is clear that she is strongly aligned to her sister’s cause, and believes that the father is a risk to the children.
When the mother’s sister gave evidence the following day, she gave an undertaking in light of my serious warnings as to the consequences of failing in her duty as a supervisor. I intend to accept and rely upon the undertaking by the mother’s sister.

The father

The father gave evidence in accordance with his affidavits of 2 June 2011, 20 August 2012, 6 September 2012 and 4 December 2012.
Both the parties were unrepresented, which creates a burden upon both of them because they are exposed to the scrutiny of the Court at all times throughout the trial. The hearing was less difficult for the father than the mother, because his case was fairly consistent with that which the Independent Children’s Lawyer was running. This meant that I did not have the same opportunity to observe the demeanour and thoughts of the father to the extent that I did of the mother. As a result, I had more interaction with the mother than the father, because I was trying to understand the extent of her case.
I acknowledge that it is difficult for litigants to run their own case and I have been mindful of this when making these determinations. The father was initially aggressive when cross-examined but eventually became calmer.
I am satisfied that the father failed to disclose either fully, or at all, the information in relation to T and the abuse he suffered at the hands of Mr N, the neighbour. The father was not frank in that evidence. He said that he had forgotten that he had taken C to the Police Station for an interview. I do not believe him. I am satisfied, however, that when the father became suspicious of Mr N, he took immediate protective action in relation to the children.
When T made the disclosure to the father, he immediately reported the matter to the police, which has led to the incarceration of Mr N.
The father drinks heavily from time to time, although he denies that he does so when the children are in his care. I am not satisfied that his alcohol use is a significant feature in this case.
The father is in a relationship with Ms U, who is aged 26 and has three children of her own. They plan to live together and later marry.
The father originally opposed an order for anger management counselling, but is now prepared to attend such counselling.
I have listened to the recordings, read the affidavit evidence and observed the father’s demeanour during cross-examination and from this I conclude that his hostility can at times be described as verbally extreme.
The interactions between the mother and the father are best described as explosive. They use poor language and they lose the sense that they must be protective of their children.
I do not accept that the father has been as quiet or as calm as he asserted. I accept that at times his anger is such that it needs to be moderated. I have made an order that the father attend anger management training. The father understated the events with regard to his involvement with the cars and the knives. I am not satisfied that his evidence is accurate; I believe that he has downplayed his role.
I accept that the father has adopted a protective approach in relation to T in respect of the child’s mother, who has significant problems. The father was cross-examined by the mother, and I suspect it was the first time they had spoken civilly to each other for some years. Once the father managed to calm down he listened to the mother and was open to the children spending more time with the mother and to that time being unsupervised. I suspect that this was due to the positive influence of Ms U on him. I also believe that the situation in which he was being observed by a Judge, had some bearing.

The mother’s psychologist, Mr L

The mother’s psychologist, Mr L, had previously provided a report in November 2010 and gave evidence at the hearing. He said the mother’s approach to parenting had improved with treatment, although she did not complete the course. He said it would be beneficial for the mother to undertake another four to six sessions of cognitive behaviour therapy. I accept his evidence.

The supervisor, Ms G

Ms G was of great assistance to the parties. She stepped forward in the most difficult of circumstances, and provided supervision for about five months. She produced balanced reports which contained thoughtful comments. I accept that she is a witness of honesty. In many ways it is the evidence of Ms G that convinced me that these parties have the capacity to be effective parents, if they choose to do so. I accept her evidence.

The father’s fiancée, Ms U

Ms U is the father’s fiancée. She did not provide an affidavit, but gave oral evidence. She is subjective in terms of the father, similar to the approach taken by the mother’s sister. Ms U gave careful and frank evidence from her own subjective point of view.
Ms U has three children, aged eight, six and four and who live primarily with her. I accept that she endeavoured to be honest and that she, like the mother’s sister, may have a positive influence on the parties and assist them to parent the subject children without conflict.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sets out the pathway in determining parenting arrangements for children.
Section 60B of the Act sets out the objects and underlying principles to make sure that the child’s best interests are met. Section 60CA requires the Court to regard the best interest of the child to be the paramount consideration.
In determining the best interests of the child the primary and additional considerations are set out in s 60CC of the Act. The considerations must be read in the context of the objects and principles contained in s 60B and in particular the need to ensure children have the benefit of both of their parents having meaningful involvement in their lives and at the same time to protect children from abuse, neglect or family violence.
In Heath & Hemming (No 2) [2011] FamCA 749 Kent J set out the legislative approach to parenting orders under Part VII of the Act, I have endeavoured to address this decision in accordance with that direction. In addition Kent J considered a pathway in determining parenting orders under Part VII of the Family Law Act 1975 (Cth) (‘the Act’), including an outline of the source of the Court’s powers pursuant to s 87 when he said:-
87.    Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation:
(i)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(ii)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(iii)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(iv)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(v)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(vi)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(vii)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
i.    Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
ii.   Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(viii)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(ix)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.

I have considered and adopt the pathway suggested by Kent J.
The provisions in the Act relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-
(1)        The objects of this Part are to ensure that the best interests of children are met by:
(a)         ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)         protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)         ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)        ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)        The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)         children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)        children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
( c)        parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)        parents should agree about the future parenting of their children; and
(e)         children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.
There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. If there are reasonable grounds to believe that a parent has engaged in the abuse of the child or family violence the presumption does not apply.
If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable. Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.

SECTION 60CC FACTORS

Under the Family Law Act 1975 (Cth) (the Act), I am required to consider the factors under s 60CC to determine parenting issues. In considering these factors, I have had regard to all of the relevant evidence provided during the hearing.
(2)(a) The benefit to the child of having a meaningful relationship with both of the child's parents;
Section 60CC(2)(a) of the Act sets out the benefit to children of having a meaningful relationship with both of their parents. I have no doubt that both of the parties have a continuing, close and loving relationship with each of the children. Ms G gave clear evidence that the children loved their mother and interacted well with her. That is consistent at some levels with the evidence of the Family Consultant. I am satisfied that in this case there is a benefit to the children from having a meaningful relationship with both the mother and father.
(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Section 60CC(2)(b) stipulates the need to protect the children from physical or psychological harm, or from being subjected to or exposed to abuse, neglect or family violence. The evidence of Dr E, the Family Consultant, and the mother’s psychologist, is that the mother does not present as a risk of physical harm for the children, which I have alluded to earlier.
The mother raised a number of concerns she had regarding the father’s ability to care for the children given his alleged drink driving, cultivation of marijuana, and abuse of alcohol. These concerns stem from her dislike of the father and from her desperation to get her children back. The father has managed well to care for the children over the last few years.
Much was said during the trial about the interaction of Mr N. Paedophiles such as Mr N are a blight on our society. The father did not know of Mr N’s behaviour, but as soon as he became aware, took immediate steps to prevent Mr N from having any interaction with the children. When T made his disclosure, the father took immediate steps to report that matter to the police, which led to Mr N’s incarceration.
The father’s concerns about the mother, on some level, are because he does not like her. I accept that the father may not be as frank with this Court, or the mother, as he should be out of fear that something he says may impact on the outcome of this case. This is one of the reasons it is imperative that this case be finalised.
I am not satisfied that the father would present as an unacceptable physical risk of harm to the children. I accept the submissions of the of Independent Children’s Lawyer that given their conflict, both parents present a significant risk of psychological harm to the children. I raised that with them during the course of this hearing and interestingly both parties conceded the volatility of their relationship. Each party suggested they should not be in a position where they are together, which is probably one of the first things they have agreed to in a long time.
The Independent Children’s Lawyer submitted, and I accept, that both parties have from time to time, lost sight of the importance of their children; such is the toxicity of their relationship. I am satisfied that if the mother completes the sessions with Mr L, it will assist her to manage this conflict. The mother has a diagnosed personality disorder, which makes it difficult for her to be objective and also to step back from situations. The situation at the football field in early April may well have been where the mother became involved in conflict which ought not to have happened.
The mother claims that the children were likely to have been abused by the father. Allegations of sexual abuse are taken seriously in this Court. On the evidence, I am not satisfied that the father presents an unacceptable risk to the children.
I am concerned that the mother observed certain things and formed a conclusion without having the ability to reconsider that conclusion more carefully. I believe this was due to the circumstances at that time. I am confident that the mother genuinely believed that the children were sexually abused. Although, when considering the evidence, it is not a conclusion which one could easily come to. The mother then embarked on a mission to gather evidence and I accept the submissions of the Independent Children’s Lawyer in that regard. This again may have been due to her distorted reality.
(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The children have not expressed any specific views in terms of their preferred living arrangements. Although it is clear from their behaviour that they wish to spend time with each of their parents and do not wish to be caught up in the conflict of their parents’ creation.
(3)(b) The nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
In terms of this provision, the evidence of the Family Consultant is that the children are settled and have a good relationship with their father, paternal grandmother, the father’s fiancée and her children, and of course, T.
The children have a close relationship with the mother and A. The mother submitted to me, and I accept that it is important, that they have a relationship with A and that she has a relationship with them. Having regard to the involvement of the maternal grandmother, the mother’s approach to the father and the comments made by Dr E, I am concerned that the influence of the maternal grandmother, may not be helpful. I have made an order to keep her out of the children’s lives for a period of three months. That will enable the mother to reform her relationship with the children away from the influence of her own mother.
(3)(c) The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The willingness and ability of each of the child’s parents to encourage a close relationship with the other parent. I am satisfied that the father has the capacity to do so.
During his evidence the father demonstrated a flexible approach by shifting his view to show he was open to the mother spending more time with the children. I am satisfied that whilst he dislikes the mother and has anger towards her, he is open to enabling a relationship between the children and the mother.
I had concerns that the mother would not facilitate a relationship between the children and the father. I am still uncertain as to whether she would be willing to facilitate such a relationship and perhaps she is still unsure in her own mind. On the evidence so far, she has not facilitated a relationship between the children and the father and does not see the benefit to the children of him being in their lives.
(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This section considers the impact of the changes to the children’s circumstances. The initial orders I have made will not greatly impact on the children. The mother seeks that the children live with her half of the time. I find that it is logical that the children should eventually live with the mother half school holidays, one day during the week and on alternate weekends.
However, an order for equal time causes me concern. This is not because I think the mother lacks the capacity to care for the children physically, but because I believe it would be damaging to the children to expose them to two separate households and the high conflict as it presently stands. At the present, I cannot see that equal time can work. With effort and a change of attitude on behalf of both parties, I hope to be proved wrong.
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There is no practical difficulty or expense associated with the orders I have made.
(3)(f) the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
In terms of the capacity to parent, each of the parties have the physical capacity to care for the children. Elsewhere in these Reasons I have discussed the parties’ emotional difficulties, which impact on their respective abilities to provide for the emotional needs of the children.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
and
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
These are not relevant considerations.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
In terms of section 60CC(3)(i) which relates to each party’s attitude to the children and the responsibilities of parenthood, each parent has a heavy burden to carry in relation to this matter. The mother has not seen the children for 10 and a half months, although she could have done so if she had chosen to utilise the Children’s Contact Service. On her evidence she declined this option because of her dislike of the service. I suspect the children would have loved the opportunity to spend time with her under any circumstances.
On the basis of her decision, the mother has created the situation where she has not been involved in the children’s lives for almost a year.
(3)(j) any family violence involving the child or a member of the child’s family;
and
(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii) the making of the order was contested by a person;
The father was angry and has been abusive towards the mother during arguments. He otherwise cares for the children. It is not necessary that I discuss the issues of family violence and family violence orders further; these details are set out in the reports. I find that the impact of the conflict caused by both parties on these children was pervasive.
(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I have had regard to all of the relevant s 60CC factors. It is not appropriate that I make a final order at this time, which is intended to last until the children attain 18 years. I have made a final order which will apply for the time being. The parties will need to apply to change the orders when the time is appropriate because, as the mother rightly says, if these parties can get on, they will eventually be able to parent these children in an effective way.
However, if the conflict continues, then the mother would have no other option other than to use the S Contact Service. The mother submitted that this would be her final option and I do not wish to resort to this option at the current time. I have left the door open for the parties to develop alternatives that suit the needs of the children better. I have appointed a Family Consultant to assist the parties in that process.
It seems likely that in the long-term, provided that supervised time progresses well, that it would be appropriate that the mother’s time with the children be increased. I imagine this could include: alternate weekends; one evening during the school week; half of the school holidays; Christmas Day on alternate years; and Mother’s Day.
I extend a caution to the parties against having changeover on the children’s birthdays, Christmas Day or Mother’s Day. I believe that if the parties are required to meet up on those days, it will spoil that day for those children. My strong suggestion is that changeovers are organised in advance of Christmas Day and the children’s birthdays and alternate who the children will spend those special days with, on an annual basis. I would suggest that a changeover on the Saturday night before Mother’s Day and Father’s Day would also work well.
(3)(m) any other fact or circumstance that the court thinks is relevant
This is not a relevant consideration.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)      has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)      to spend time with the child; and
(iii)     to communicate with the child; and
(b)      has facilitated, or failed to facilitate, the other parent:
I have had regard to the factors and repeat the matters that I have said elsewhere in these reasons.

Parental responsibility

Under the Act, when making parenting orders, the Court must apply a presumption that it will be in the children’s best interests for there to be equal shared parental responsibility. There are certain situations in which the presumption will be deemed not to apply. For the reasons articulated earlier, and having regard to the s 60CC factors, I am not satisfied that the presumption should apply in this case. To provide for equal shared parental responsibility at this stage would mean it would not be possible for any decisions to be made regarding the children. To expect the parties to be able to make joint decisions, even about simple things that parents must make decisions about, would result in them forever returning to court. I do not regard equal shared parental responsibility as an option, given the circumstances.
As such, I am not required to consider equal time or substantial and significant time, although I have done so. I have discussed equal time earlier in these Reasons and I have expressed some concerns about that. I have considered substantial and significant time which may be appropriate in the long term if there is a significant reduction in conflict between the parties. I have had regard to the approach of the Full Court in Marvel & Marvel (No 2) [2010] FamCAFC 101:
103.It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.
The history of the matter is such and the allegations of violence and abuse are also such that the presumption under s 61DA of the Act cannot apply. I am satisfied that at the present time, that in regard to all of the factors to which I have referred above, the children should continue to live primarily with the father.
I have regard to the evidence of Dr E, the Family Consultant and Mr L, and I am not satisfied that, the mother should spend unsupervised time with the children, at least in the short to medium term. However I find that it is appropriate that the mother should spend supervised time with the children. The Independent Children’s Lawyer submitted that the build up of time should be a graduated process.

The issue, of course, was in securing a suitable supervisor. Initially, the only option was a Children’s Contact Centre and I had concerns that this option would have simply led to failure. However, the mother’s sister volunteered for the role. Initially I was apprehensive of this option, given her evidence. However her subsequent undertaking was such that I am satisfied that she will act as a proper supervisor for these children.
I have made orders which allow for a build-up of time; to commence on Mother’s Day, and then two weekday afternoons per week. I will allow the father to choose those two days during the week, to fit in with the needs of the children. The father will notify the mother of this decision in writing.
In regards to parental responsibility I have made an order that the father has sole parental responsibility for the children. However, I have also provided that when the father is to exercise this responsibility, he is to advise the mother in advance of any decision he makes and consider any opinion expressed by the mother before making a decision. I am unsure whether this arrangement will work. I have made an order for a Family Consultant to assist under section 65L of the Act. This can occur after the father has completed his anger management course and the mother has completed her sessions with Mr L.
At the hearing I made it clear to the mother that if her hostility continues it is likely that these proceedings will end up back before a court. In that instance she risks the result that her time with the children may come to an end. I also warned the father, that if he facilitates conflict, the children’s residence may change if the mother can manage her affairs. Either way, the continuing conflict has had a negative impact on these children.
I have made an order that neither party denigrate each other; nor allow other people to do so. This creates an obligation on either party, in the situation where something negative is said about the other party, to ask that person to stop making such comments or remove the children from that environment. I have imposed a similar obligation upon the supervisor; that if the mother makes such comments while spending time with the children, that the supervisor will end the visit and inform the father.
There was evidence during the hearing that J would be assisted by continuing support from the Child Adolescent Mental Health Service, and I have made an order to that effect. I have also made an order that C continue with his counselling at the W Hospital.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 9 May 2013.

Associate:

Date: 9 May 2013

[2013] FamCA 561

9 May 2013

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