Bronson and May (No.3)

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRONSON & MAY (No.3)

[2019] FCCA 1926

Catchwords:
FAMILY LAW – Parenting dispute – father seeking progression to unsupervised time and mother resisting – father’s history of family violence – whether father now accepts the nature of his violence – whether father is a risk to the children – father’s psychological treatment only just commenced – matter adjourned for 6 months and interim orders made on recommendation by family report.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725

Slater & Light [2013] FamCAFC 4
Goode v Goode [2006] FamCA 1346

Applicant:

MR BRONSON

Respondent:

MS MAY

File Number:

DGC 2781 of 2011

Judgment of:

Judge Burchardt

Hearing dates:

18 and 19 June 2019

Date of Last Submission:

19 June 2019

Delivered at:

Dandenong

Delivered on:

1 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr Byrne

Solicitors for the Applicant:

Ressan Lawyers

Counsel for the Respondent:

Mr Kistler

Solicitors for the Respondent:

Pentana Stanton Lawyers

Counsel for the Independent Children's Lawyer:

Ms Elleray

Solicitors for the Independent Children's Lawyer:

Southern Family Law

ORDERS

The matter be adjourned to 3 February 2020 at 9.30am.
The mother have sole parental responsibility for [X] born … 2008 and [Y] born … 2009 (“the children”).
The children live with the Mother.
The children spend time and communicate with the Father as follows:-
(a)Each alternate Sunday commencing 4 August 2019 from 12:00 noon to 2:00pm with changeover to occur at McDonald's Suburb A;
(b)Each alternate Sunday commencing 18 August 2019 from 12:00 noon to 4:00pm with changeover to occur at McDonald's Suburb A;
(c)Via telephone each Thursday evening between 5:00 and 5:30pm, with the Father to initiate such calls to the children’s mobile phone and the Mother to facilitate such calls;
(d)Further and other times as may be agreed in writing between the parties and approved by the Independent Children’s Lawyer (“ICL”).
That the Father’s time be supervised by Ms B, who shall provide a written report 21 days prior to the adjourned date and that the ICL place Ms B on affidavit and duly file and serve.
In the event Ms B is unavailable to undertake supervision due to illness, injury or person circumstances she provide 48 hours’ notice (save for an emergency) to the Mother who will request for Mr C to undertake supervision.
Each parent, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the children, or either of them, and from permitting any other person so to do.
That prior to the adjourned date, the ICL seek VLA funding to, and if so approved, obtain a report from the Father’s treating psychologist Dr D as to the Father’s attendance, progress and insight, with such report to then be filed and served.
That within 21 days of the date of this order:-
(a)The Mother arrange for the children to attend upon the ICL for her to explain these orders;
(b)Both parents enrol and complete a Parenting Orders Program (POP) at a location to be nominated by the Mother and approved by the ICL.
That should Mr C be required and can facilitate supervision in Ms B’s stead, the Father shall notify the Mother of his elected location within 10 kms of Suburb A McDonalds to spend time and Mr C shall transport the children to that location.
Pursuant to ss 65DA(2) and 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 the 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.

NOTATION:

A.That any supervision to be undertaken by Mr C is intended to be a “stop gap” measure only, with the obligation of ongoing supervision to lie with Ms B.

IT IS NOTED that publication of this judgment under the pseudonym Bronson & May (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2781 of 2011

MR BRONSON

Applicant

And

MS MAY

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute about the best interests of two young children, [X], born … 2008, and [Y], born … 2009. The applicant father seeks to spend supervised time with the children until 30 July 2019, and thereafter alternate Sundays from 9 am till 7 pm. The initial period of time is to be supervised by Ms B, but thereafter, the time is proposed to be unsupervised. The respondent mother seeks that the children spend supervised time with the father on alternate weekends for three and a half hours. She seeks that the time be supervised by Ms B.
The Independent Children's Lawyer's position is that the Court should make interim orders for supervised time for a period of time, with the position to be assessed thereafter. This submission flows essentially from the only very recent engagement by the father with a treating psychologist in an endeavour to address his difficulties.
For the reasons that follow, I am going to make orders essentially as sought by the Independent Children's Lawyer.

The judgment of Judge Phipps

These parties have been litigating since 2011. In 2014, a trial was held before Judge Phipps who provided reasons for judgment on 16 January 2015. It is appropriate to paraphrase his Honour's relevant findings. It should be noted that the catchwords at the front of the case in some ways encapsulate the issues. They read:
Whether husband's anger and aggression are risk to children - whether time spent between children and husband should be supervised.
His Honour noted the dates of birth of the children and the wife's child by a previous relationship, [S], born … 2002, who lived with the parties during their relationship between … 2006 and … 2011. At paragraphs 12 to 14, his Honour described the incident on 15 January 2011 which effectively brought the relationship to an end. It should be noted that it was the wife's position that the father reversed his car deliberately into her own, and thereafter, started banging on the window of her locked car and yelled at her, kicked the bottom of the driver's door and was banging on the glass. The police applied for an Intervention Order. A final order was made for 12 months on 21 January 2011. On 24 January 2011, the matter was back before the Court and the father had breached the Intervention Order numerous times by text messages and voice messages. The husband ran up and grabbed both of the mother's shoulders and was yelling at her, but was wrestled to the ground by a police officer. The husband was arrested.
On 27 January 2011, the wife went to the Shopping Centre F and the husband was convicted subsequently of contravening a family violence Intervention Order, assaulting police and stalking another person. He was sentenced to an aggregate of four months imprisonment to be served by way of an Intensive Correction Order. He was subsequently in March 2011 charged with failing to comply with the Intensive Correction Order, stalking another person and contravening a family violence order. He was convicted of both. He spent about a month in jail. Before Judge Phipps (paragraph 21) he said he had tapped on the car window and tapped on the door with his foot and denied kicking it hard and hitting hard.
The judgment then traversed the family reports of Ms G. Ms G's report noted that a report of Dr H, prepared for the Court proceedings already referred to, had observed that the father:
“does not present with the same insight as a normal person in the context of social interactions and did not understand the consequences of his behaviour on his ex-wife.”
At paragraph 34 of the judgment, his Honour extracted part of the evaluation put forward by Ms G as follows:
Part of the writer's concerns in regard to Mr Bronson's parenting and also his general disposition, is the impression that he is a very determined man and has a need to dominate. In some instances, these traits can be assets, but in others, particularly in caring for children, they can be damaging. It is also believed that the type of violence perpetrated by Mr Bronson towards his family is what is termed coercive controlling violence, and risks associated with this type of behaviour are high. It is believed that the effect of that violence are still having a harmful impact on Ms May and her eldest son [S].
The judgment later considered the more recent family report of Ms J. At paragraphs 46-48, his Honour dealt with an incident in March 2014 where the husband insisted on standing on the nature strip outside the maternal grandparents' home while the maternal grandmother approached the house to collect the children. He claimed to have had advice from his solicitor on the phone that this was not in breach of the Intervention Order. His Honour did not accept that explanation as he considered it improbable that a solicitor's secretary would make the statement attributed to her by the father (paragraph 51). At paragraph 61, his Honour observed:
Ms J says that the husband presented as a concrete and practical thinker with little insight into how his behaviour affects others. She discussed with the husband the incident at changeover. She says the husband has no insight into how his behaviour on that day was inappropriate and threatening towards the maternal grandparents when he could have avoided the situation by waiting a few extra metres away and out of sight of the maternal grandparents.
At paragraph 62, his Honour extracted from Ms J's report as follows:
There is concern that Mr Bronson has not fully addressed his temper and aggression. It does not appear that he has completed an Anger Management Programme, and it is unclear whether Psychologist Ms K has addressed family violence with Mr Bronson in their sessions. With his concrete thinking, he lacks insight into how his behaviour affects others, and appears to have self-righteous views about what he is entitled to.
Ms J went on to recommend that the father complete an anger management course or intense counselling specifically to address his aggressive behaviours.
At paragraph 66, his Honour noted evidence from psychologist Ms K, to whom the father had been referred for psychotherapy to address symptoms of depression and bipolar disorder. Ms K agreed with the reports of Dr H and Dr L that the father had bipolar 2 disorder, depressed, moderate atypical features. It appears that that therapy ceased on 3 May 2013.
I note that the father's own affidavit of 14 May 2014 annexed inter alia material showing that the father had attended group sessions for Men's Behaviour Group, Change Group and a post-separation parenting course.
At paragraphs 86-87, Judge Phipps said:
The husband's behaviour in the incident in March 2014 and his attitude to it demonstrated during his evidence shows that the risks to the children if they spend unsupervised time with him are still there. In January 2011 his controlling behaviour towards the wife was such that he backed his car into a motor vehicle which contained not only the wife but the children. There can be no confidence that if left with the children unsupervised or without at least a suitable adult in substantial attendance, his anger and aggression might put the children at risk.
Ms J recommends unsupervised time but only after the husband has completed suitable courses, and then only limited unsupervised time. I consider that the risk of reoccurrence of violent and aggressive behaviour by the husband is too great to allow even limited unsupervised time, or at least time without a suitable adult being in substantial attendance.
I note further that at paragraph 94 Judge Phipps said:
The husband has a very unsatisfactory attitude to the responsibilities of parenthood. In wanting to spend time with the children he concentrates on his own needs rather than the children's needs.
Judge Phipps went on to order supervised time on an ongoing basis.
It should be noted that in 2016 the father filed a further initiating application which was the subject of a Rice v Asplund objection, which was resolved favourably to the father by Judge Jones, who by decision on 25 September 2017 held that it was in the best interests of the children to allow litigation to recommence.

The parties' affidavit material

I have, of course, read the materials filed by the parties. I note that the father relied upon his affidavits going back to 2016. It is not, however, necessary or appropriate to traverse them in detail. It should be noted that inter alia both parties have filed copies of supervisor reports, which have shown a slow development of the relationship between the children and the father. I note that the father's most recent affidavit filed 28 May 2019 is generally accusatory of the mother in its terms, and it repeats the father's assertion that the car accident in 2011 was accidental rather than on purpose.

The report of Dr E

After a number of false starts, Dr E was the psychiatrist who has undertaken a formal evaluation of the applicant. It should be noted that earlier reports from the psychologist Dr H and apparently from a psychiatrist, Dr L, are not before the Court. Under the heading Past Psychiatric History, Dr E recorded:
As reported Mr Bronson has in the past come to the attention of the Region M CATT Team who referred him to a psychologist that he saw on one occasion. He then saw Dr L on one occasion and in 2016 he saw Dr N and a psychologist Ms K. He saw the psychologist for a period of about twelve months. Dr L and Associate Dr N have both rejected the diagnosis of bipolar effective disorder.
Under the heading Symptomatic History, Dr E reported:
Mr Bronson reports that he used to be impulsive with money but is no longer, occasionally he experiences feelings of emptiness and occasionally he daydreams. In the past he has been guilty of having temper tantrums and reports suicidal thoughts but only one attempt, that one occasion when he took an overdose and came to the attention of the local CATT Team. He denies problems with gambling, erratic driving, impulsive eating, jealousy, self harm, pornography, promiscuity, issues around sexual preference or stress related paranoia. He insists that he has a clear sense of self. He sees himself as a very shy person who is happy and helpful and more outgoing when he knows people.
Under the heading Diagnosis, Dr E recorded:
Mixed Anxiety Disorder with features of Social and generalised anxiety.
Borderline and Obsessive-Compulsive personality traits.
Under the heading Discussion, Dr E opined:
In my opinion, there is nothing in Mr Bronson's history to support a diagnosis of bipolar effective disorder. There are significant issues around management of anxiety and emotions, particularly anger, although Mr Bronson was at pains to stress, "I am not the person portrayed by my ex-wife, that may have been the old me but I have changed with all the help I received". He insists that he no longer smacks or yells. He understands that the children's mother believes that he introduces them to things too early from a developmental point of view. This is a point of difference but he did benefit from the Parenting Post-Separation Program. He understands his stepson's refusal to see him as a result of the way he behaved when he was in a relationship with [S]'s mother, but he believes his daughter's refusal to speak to him on the telephone is because the mother has been alienating the children from him and he is particularly frustrated by not being allowed to speak to the children's teachers.
Generally Mr Bronson feels that he is better at being able to separate his own needs from those of the children and setting his own needs aside. He seems himself as being able to plan better and being less impulsive. Mr Bronson reports that he has benefited from the programs and individual work that he has engaged in and, in my opinion, would benefit from an ongoing relationship with a psychologist to continue to review anxiety and emotional management strategies.

The family report of Ms O

It should be noted that Ms O had access to the reports of Associate Dr N dated 3 February 2015 and 4 May 2016, but not the report of Dr E which was prepared after the family report.
Ms O noted the personal circumstances of the parties, and noted at paragraph 4 that [S] did not wish to have any form of communication with Mr Bronson. Having dealt with the relevant family background and the history of the dispute, in terms which appear to me to be uncontroversial, and the proposals of the parties, at paragraph 9 the report noted:
Paternal family violence history acknowledged by both parties. Mr Bronson is of the belief that this situation has now changed and that he does not perpetrate family violence, this not accepted by Ms May.
At paragraphs 18-20, the report noted:
Mr Bronson stated that he is willing to attend a Court-ordered psychotic (sic) assessment and is awaiting notification by the ICL of an appointment with a nominated Psychiatrist. Mr Bronson acknowledged the reports prepared by Dr N in 2015 and 2016. Mr Bronson stated that he has not subsequently attended upon Dr N. Mr Bronson stated that he did not agree with the assessment made by Dr N in respect to low frustration tolerance due to secondary to borderline intellectual difficulties. Mr Bronson stated that he has not been formally diagnosed with an intellectual disability, describing himself as ‘smart.’
Mr Bronson stated that he no longer experiences anger or mood issues. He stated that he attended past men's behavioural change programs in 2011, 2012 and 2013, this assisting him to ‘change my perspective, I don't get angry, I am thinking more rationally and thinking about how my behaviour hurt people.’ Mr Bronson acknowledged being nasty and bad in the past, this constituting family violence. He stated that he does not engage in family violence towards Ms May or the children. He described himself as a changed person. Mr Bronson stated that he has not had contact with [X] since September 2011, describing him as mean and nasty to him.
Mr Bronson stated emphatically that he did not accept the reasons for judgment made by Judge Phipps in January 2015 and reflected in final orders. Mr Bronson stated that he does not accept that all future arrangements for [X] and [Y] require long term and continued supervision of his time.
I note that despite the reported difficulties between the two parents, at paragraph 24, Mr Bronson described Mr C, the mother's new partner, as civil. Both parties complained of poor parental communication by the other and they both described conflict occurring at the arrangement that occurred on 1 October 2018 in the presence of the children, a matter to which I shall return.
Both [X] and [Y] were willing to spend time with Ms O at interview. At paragraph 28, Ms O recorded:
[X] impressed as able to express his thoughts in a capable and clear manner appropriate to his age. [X] expressed reservation in relation to future ‘sleepovers’ at the paternal home, adding that, “I would not feel so comfortable with this”. He added that sometimes he tells his father ‘to stop talking about things and that he has no right to speak like that about mum.’ [X] described his stepfather as “way nicer than my dad, he does not swear at us”. [X] questioned whether his father had ‘changed’, noting, “I do not think he has, maybe a little bit, he can be a mean dad, he talks behind people's backs, I do not like it when he talks about mum, I say to him if he does that I will not see him anymore”. [X] expressed a desire for everyone to be nicer to each other, “I don't like swearing, this is mainly from dad”.

I note that [X] expressed the view that he would like to spend future time with his father with a possibility of attending locations other than McDonald's, including a play centre.
[Y] impressed Ms O as a talkative and engaging little girl. At paragraph 30, the report noted:
[Y] commented that in general she enjoyed paternal time and getting to know dad more. She talked in positive terms of her

step-father, adding ‘he is very nice’ and that she enjoys being with her ‘step brothers’. [Y] commented that her father does not live with them as he was not very nice, he hurt someone's feelings and mum said he was violent with her and [S]. [Y] commented that she would be willing to attend another location in order to spend time with her father, as long as it was not too far, I get car sick.
Ms O recorded that [S] attended on the day, and at paragraph 33 noted:
[S] stressed he did not want to come into contact with Mr Bronson on the day. He added that he emphatically did not want to have any form of contact with Mr Bronson. [S] stated that it was difficult for him to express his thoughts further with the Report Writer, not wanting to engage in further discussions.
Observations took place of the children with each of the parents. [X] and [Y] were observed to be quiet and a little reserved in the presence of their father but reciprocated conversation, and the father was observed to be appropriate in his responses on the day of the interview (paragraph 34). Time with the mother was clearly comfortable, but at paragraph 35, Ms O noted:
It was observed that Ms May made comment in the presence of the children of her concern that the father had talked to them in relation to the legal proceedings.
At paragraphs 39-41, Ms O noted:
Parental communication remains fraught, frustrated, lacking trust and vulnerable to openly expressed conflict. Mr Bronson has expressed his firm desire to transition to arrangements with the children that involve extended time and in the future overnights on alternate weekends. Mr Bronson has also expressed his view that future parental time not be subject to ongoing supervision believing that this is not necessary. Ms May remains of the view that the Final Orders made in January 2015 remain in force due to her belief that paternal behaviour and circumstances have not significantly changed to warrant unsupervised or extended time with [X] and [Y]. It appears given the history in this matter and the current views expressed by each parent that parental agreement in respect to future parenting arrangements is highly unlikely.
[X] at age ten years and [Y] at age nine years were able to express some of their thoughts and feelings with the Report Writer. [X] impressed as cautious in respect to his father commenting that whilst he would be open to spending additional day time in paternal care in order to widen the variety of activities that could be undertaken, he stated that he would not feel comfortable with the prospect of ‘sleepovers’ at Mr Bronson's home. [X] made comment that he does not like negative comments made by his father, particularly in relation to his mother. [X] questioned whether his father had substantially changed over time, recalling past paternal behaviours. [Y] made comment that she has generally enjoyed the opportunity of spending time with Mr Bronson and ‘getting to know him better’. She also expressed some willingness to spend additional day time with her father in order to engage in other activities other than spending the time at McDonald's. [Y] indicated some caution in being separated from her mother for extended periods of time.
It is considered that [X] and [Y] are children who have experienced long term challenges in their family circumstances. There are openly expressed recollections of paternal behaviours that reflect family violence and frightening paternal responses. Whilst [X] and [Y] commented that they are in general willing to spend time with Mr Bronson engaged in a wider variety of activities, there is also caution and reservation in paternal time being significantly extended. It is noted that [X] and [Y] are also accustomed to the presence of another adult during arrangements. The views of [X] and [Y] are acknowledged. It is considered that it is in the children's best interests that there is consistency in paternal arrangements and a lack of openly expressed negative or crucial parental views in relation to the other parent, this adding to an already complicated situation for [X] and [Y].
At paragraph 43, the report observed:
Mr Bronson described himself as a ‘changed man’ over the past three years. He appeared to acknowledge some past behaviours that constitute family violence. He expressed his love for [X] and [Y] and a desire to spend additional time with them as their father. Mr Bronson stated that he has not accepted the reasons given in the Judgment resulting in Final Orders in January 2015. This restricted his time with the children including on going supervision. Mr Bronson stated that he does not have mental health issues or challenges. He indicated that he is not currently engaged in counselling or support services. Mr Bronson stated that he did not accept the professional opinion of Dr N reflected in reports dated February 2015 and May 2016, particularly in relation to described intellectual difficulties and low frustration tolerance. It is considered that Mr Bronson’s non-acceptance of both legal determinations and professional opinions likely reflects a lack of full understanding and insight into his personal behaviour and responses, this constituting continuing risk pertaining to the children.
Ms O noted that the Court-ordered psychiatric assessment of the father remained outstanding and went on, on balance, to recommend against extending time to overnight. The report did not recommend the relaxation of the requirement for supervision and noted that it was important that if Ms B was to continue to supervise, she must assume impartiality in her management of the arrangements. The report did recommend some increase of time, the two hours being insufficient to give the children the opportunity to go to a play centre or other activity.
The report went on to recommend continuation of time once a month at McDonald’s at Suburb A for two hours on a Monday afternoon and once a month extended time on a Saturday or Sunday for four hours, both to be supervised and that weekly telephone calls continue.

The evidence given and submissions made at Court

What follows is taken from my notes. Self-evidently, it is not a transcript but records aspects of what was put that I regarded as significant.

The opening and evidence of the father

In opening, counsel made it clear that the main issue was the question of supervision. She submitted the father has changed. The children are now four years older than when the orders were made in 2015. In addition to his evidence, he proposed to call Ms B and Dr E. The father was called and adopted his affidavits as true and correct. These went back to 2016. He further deposed that he had visited a psychologist, Dr D, for assessment and treatment and tendered a letter from Dr D as exhibit A1.

The father under cross-examination by counsel for the mother

The father confirmed that he had seen Dr N twice. Dr N had not told him that it was necessary that there be follow-up, but that he could see him yearly. He had seen Dr E recently. He had not believed he had any psychological issues and only realised something was wrong when he saw Dr E. He cannot say what is wrong. He has anxiety and also he is controlling in respect of his environment. He has no anger issues any more.
It was put to him that he had sought that Dr E not read the previous medical reports and he agreed that this was the case. The previous reports were biased. It would be prejudiced towards him to provide that information. On reflection, he accepted that Dr E should receive the reports and, if I understand the matter correctly, Dr E did, in fact, receive the material. Dr E recommended psychological treatment and he went straight to his GP, who referred him to the psychologist. He is in the early stages of assessment. He is undertaking a parental course. He has found another one to better himself and to be better for the children. He has not seen the children for six months. It is clear supervised access is not working. When it was put to him that the matter was adjourned for him to undertake a psychiatric assessment, the father blamed his solicitor. He said the psychiatrist had to be approved by the ICL. His GP has been his GP for many years. This was the first time he had spoken to his GP about seeing a psychologist. He knows it is not treatment for anger. There is definitely no sign of anger in what he had said to him. He has told the psychologist about Dr N, but the psychologist will make his own diagnosis. He had not given Dr L’s reports to the psychologist, because it was a Court report. He had told the psychologist about Dr E’s assessment.
The father said with emphasis that he was no direct or indirect threat to his children. Dr N had told him it was not necessary to attend. He only went to a psychologist after the Dr E report. Dr E said he had anxiety and controlling behaviour, but the controlling is his environment because of the anxiety.
The parenting course starts in August. He wants to refresh his post-separation parenting course. This would better prepare him for unsupervised time.
The father was cross-examined about the incident at separation. He pleaded guilty to ramming the wife’s car. He did wrong, but people change. He had remembered the judgment of Judge Phipps, which he had read when he received it. He does not have it now. He saw Dr H’s report for the criminal case. It was a fair statement at that time, but is no longer applicable. He understands the consequences of his conduct to his ex-wife. He did not seek treatment after Dr H’s report, because he did not consider it required. When it was put to him that he only spent time with the children on 18 of the 34 possible occasions, he said this was because the mother gives him very short notice or changes things. She gives him three days notice when he has sought two weeks. There have been supervised visits for a number of years and it was expensive if you are on a pension. He had been sick too at times. He conceded that a missed visit on 29 July 2018 was his mistake. He said he was keen to see the kids, which was why they were back in Court. He conceded that the mother had changed the date for visits to Mondays to suit him, because the supervisor was available on those days. It would be disruptive to the children if there was no time. He repeated, ‘I am no threat to the children.’ He could not see why supervision was necessary. The supervisor was not being paid. He was cross-examined about other occasions when time had not taken place. It is sufficient to say that, in my opinion, the father was accusatory of the mother at every turn. A number of his answers were angry and non-responsive, including an irrelevant answer about him at his employment.
The father had seen the Ms G family report in earlier proceedings. After this, he saw Dr N, but he saw no need for further treatment. The reports were not provided to Dr E because he could have been swayed. A fresh report would be beneficial to him. In fact, the Independent Children’s Lawyer provided all the material to Dr E.

The father under cross-examination by counsel for the Independent Children’s Lawyer

The father lives in the Suburb U area. The mother lives at Suburb A with the children and Mr C. He has met Mr C, but cannot say how long they have been together. He no longer has Judge Phipps’ judgment. He only realised he had not got it recently. He has had four solicitors, but has not had Judge Phipps’ judgment for some time. The judgment is not on the Comcourt Portal. He is on a disability pension, but was working with children. His Working With Children approval lasts till 2021. He was working at one stage, but had to give the job up. He is looking for work. He cannot say how much the pension is. All his bills come out and he gets what is left. He has been seeing his GP for over 20 years at the Suburb T Medical Centre. Dr D started this assessment straight away. It was a one-hour session. He told Dr D what Dr E said was wrong with him, about the anxiety and a controlling behaviour.
Dr H saw him in prison. He did not agree with Dr H’s assessment as to his mental health. He saw Dr L after Dr H. Dr L disagreed with Dr H. He said the only thing he suffered from was bipolar. He wanted a fresh assessment from Dr E.
When counsel put it to him that he likes to be dominant, the father said he took offence to that. It was not just him dominating. The mother was dominating throughout the relationship. His email was not aggressive. He was just being firm to say he did not agree (with the reports being provided to Dr E). Exhibit ICL1, 2 and 3 were correspondence in relation to the ongoing refusal of the father to agree to Dr E receiving the earlier reports. The father’s answers to the questions put to him about this were evasive and prevaricatory. In the end, he conceded that he should have told Ms P he was seeking legal advice rather than simply failing to reply to her.
The father saw Dr D two days after he got the Dr E report. He received the Dr E report about 28 May. It was beneficial to the children for him to engage with a psychologist. He conceded that Phipps J had found that there was family violence. When it was put to him that the impact of his car was a hard one, the father said he did act very inappropriately back then. He was remanded for one month, which was the only time he was inside jail. The CCO breach was before the remand and then he got a CBO. When it was put to him that he had minimised his conduct before Judge Phipps, he did not agree. He said that he had changed. He conceded that it was more than a tap or a little kick on the mother’s car. He was well and truly out of control. He said he did not mean to hit her car. But he was so angry he did not see her in the middle of the driveway. He only pleaded guilty on his lawyer’s advice. He has had more time to think about his actions.
His diagnoses have been varied and changeable. He could understand what Dr H said about his lack of insight.
In relation to the incident where he stood on the nature strip, he handled it badly. He should have waited down the street. He was learning. He said that he understood that he has a very loud voice and indicated that it might intimidate children. He is on medication for bipolar, but was misdiagnosed. He saw Dr N, who said it was not bipolar, and that he was not depressed.
Ms B is the only person who can undertake supervision and who is appropriately qualified. He has to be comfortable with the supervisor and cannot afford professional supervision. He is aware of undertakings required of supervisors.
The father received a copy of Ms O’s report through his solicitors. He read it when he first got it, but that was it.
When he was taken to the passage in the report in which Ms O recorded him as disagreeing with Judge Phipps’ findings, he did not accept this. He would not say this now. He has changed his thinking. Friends tell him not to blame others. He is now seeking whole days for a few years until the children can make up their minds. He would be prepared to await the result of Dr D’s report. He has to set a first date and then each fortnight there other for time. Ms B can commit to Sundays. She works in health care. He says he had never criticised the mother to the children and had not said anything about the mother in front of the children.
When challenged with what he had told Ms O, he said he needs to watch what he says. He only has two hours at McDonald’s because this is what the mother insists on. Despite some equivocation, I understood the father to accept Ms O’s reports of what [X] had told her about the father’s conduct in respect of the mother. He said he might have sworn under his breath a couple of times. He denied talking about Mr C and his children.
I should interpolate and say that the evidence the father gave about denying denigration of the mother was palpably untrue and I have heard and seen him give it and I do not accept it.
The father will have only 10 sessions with Dr D. Dr D could have all the relevant materials. The father was prepared to have communication by email. He did not want telephone communication. The father complained that he was not allowed to go to the children’s football. The mother does not want him there because of her older son.
The father confirmed that he wanted access to the school’s Compass site.
On re-examination, the father confirmed that he has known Ms B for years and they are friends. On the times he had had to cancel time, he had been sick with gastro and there were also financial difficulties.

Evidence of Ms B

Ms B is a childhood educator and she adopted her affidavit as true and correct. She tendered as exhibit A2 a bundle of reports of supervised time. She first met the father when she was looking after his great aunt and they have remained friends ever since.
Under cross-examination by Counsel for the mother Ms B confirmed that the father had asked her to become involved. She is friends with him and she used to catch up with him. There were some issues during contact. The mother had been accommodating in arranging days, but there had been problems with some particular days. She would prefer to know a week in advance.
Ms B confirmed that there was a difficulty on 1 October 2018. The father wanted to talk to his solicitors and became heated and was yelling and angry. He was upset, but not yelling. The situation was heated. The mother and maternal grandmother and a friend sat right by the entry to the playground. The father felt uncomfortable. She told the mother she would have to cancel the visit and it got heated. She had been accused by the maternal grandmother of being incompetent to write reports and she did not appreciate being abused. She had no problems with Mr C (Mr C) with whom there was no hostility.
Counsel for the Independent Children’s Lawyer cross-examined about the report dated 2 April 2018. All the time has been at McDonald’s, except once. The maternal grandparents were there and sat just outside the booth she was in. There were Ms May’s grandparents and great-grandparents. The children wanted to say hello. Ms May took the children and left and ignored the father.
Counsel cross-examined about the visit on 9 September 2018. The father had offered to buy a family ticket for the Melbourne Show, but the mother became hostile as a result. She told the father that everything should be conducted through the lawyers. [X] said, ‘Mum said to tell dad he is not allowed to know about sport or school.’ Mr C had just moved in, but the father was not upset.
On 1 October there was more hostility about the show. The father bought show bags and the children were excited. [Y] ran to the father. She told the father she wanted more time with him and he choked up. [X] was always open with the father. As soon as they said this, they backed off a bit. The mother yelled out, “It is only 3.56,” but the children ignored her. Ms May’s mother and another lady stayed at the venue. Ms B essentially stuck by the record of the meeting in her report.
I would interpolate and repeat what I said during the running of this hearing. The events of 1 October 2018 do no credit to any of the parties whatsoever. All behaved in a childish way. It was wholly inappropriate for the maternal grandmother to criticise Ms B’s reports and capacity to write the reports and it was inappropriate for Ms B to respond as she did. The behaviour of the father and the mother likewise was lamentable. It should be remembered all these events took place in immediate proximity to the children.

In respect of the visit on 22 October 2018 Ms B said that the maternal grandmother called the mother an idiot. She said, “Idiot hit the kangaroo in front of [Y].” Ms B would prefer Mr C to effect changeover. The final meeting was at a play centre that she had organised. The children said they missed their father very much. She had heard them say this. There was no animosity between the father and Mr C. Ms B can supervise on Sundays, but would rather have the dates in advance. She celebrates both religious activities. She might have a placement in 2020. She would like more than two hours because of the distance she has to travel.

The Evidence of The Mother

The mother adopted her affidavits as true and correct. She had accommodated changes of day from Sunday to Monday and back again. She had only phoned her solicitor once at a visit on 1 October 2018. The father was outside shouting and carrying on while she was inside. She had provided a schedule of the list of times to the father that she had sent through her solicitor. She had asked in an email if there were to be visits outside McDonald’s they tell her where the children are going. She has been employed part time the whole way through. She had to resign to make Sundays happen. She has been in a relationship with Mr C for two and a half years.

The mother under cross-examination by counsel for the father

The mother said she was the primary carer of the children. Children are shaped by friends and school, as well as her. The children have only asked occasionally about their father. When they ask why someone is there at changeover, she tells them because bad things happened between them (her and the father).
The mother was taken to paragraph 30 of the family report and to [Y]’s comment that the father does not live with them as he was not very nice, hurt someone’s feelings, and mum said he was violent with her and [S]. The mother denied saying this. The only other person who could have said this to the children would be her son, [S]. [S]got smashed against the walls and his duck was broken. She has said bad things have happened to explain why there is someone there.
The father would go off with [X] at the park and leave [Y] with her mother. Things are not going well now. Ms B’s reports are only one side to the story and her reports are what she says. Ms B was not reporting the full story. She has not put in her reports things the father has done. Albeit very reluctantly, I understood her to concede at least in part that the visits were proceeding satisfactorily. If visits were unsupervised, there was risk of psychological damage. The mother asked rhetorically “what happens when he does not get what he wants?” There is no violence because there is supervised time. She was not aware of problems with schools events. She would only be concerned if [S]was there. He goes to some school events. There is no Intervention Order in force. The father is not in the same place as her, except for the time with children. He raises his voice with the children. She does so, also, at times. She had heard the father raise his voice with Ms B.
Cross-examination about the lamentable incident on 1 October 2018 only went to further convince me how immaturely the responses of all concerned were.
The mother conceded the children were now at an age where they could tell her if there were problems. She remembered a dispute about Compass in 2017. She had said an email to the school opposing father’s access. She still opposed it. She was worried he would come to excursions. He would also know on occasions when the children were sick and not at school. The mother complained that supervisors must put the children first, but Ms B puts the father first. The mother confirmed that the children had told her that the father talked to the children about what to say during family-report interviews. When it was put to her further that at paragraph 35 of the family report Ms O had observed her talk in the presence of the children about legal matters, the responses were prevaricating.
She thought the 2015 orders were appropriate. A supervisor could not do four hours. There was no consistency of visits the whole time they had been at court. The children work around routine. There is nothing in documentation to show he has changed.
The mother conceded that the presence of Mr C was helpful, but he had his own commitments. She conceded that time was better with fewer people there. She noted that neither her mother or Mr C were on affidavit. Mr C’s children are nine and seven years old.

The mother under cross-examination by counsel for the Independent Children’s Lawyer

The mother said she relied upon what the professionals say about the father. She does not believe visits should be unsupervised. She went on to say that it did not matter what she thought (a view I contradicted). When it was asked if time could be extended, noting that her case outline proposed three and a half hours, the mother explained that [S]does not see his own father at all. He will be seventeen in … and is in year 11. He is at the same school as [X] and [Y]. Mr C’s children are [V], age nine, and [W], age seven. They spend time with Mr C every weekend. Usually from Friday until 5 pm Sunday. Mr C works in customer service in Suburb Q, and she works in health care. It was 67 hours per fortnight, but she dropped seven and a half hours on the Sunday. Mr C is assistant coach to [S]on Sundays at sports. [X] plays sports under 11 at Suburb Z and [S] is under 18s at Suburb R.
When she was asked if she could say anything nice about the father, the mother was unable to do so. She said she had not seen anything nice for a long time.
When she was cross-examined as to why she had rejected the father’s offers of help with the Melbourne Show, she said she wanted everything through solicitors.
[S] was assaulted by the father when was seven or eight years old. He does not forget. She has to keep her children safe. [Y] had been upset a couple of times after visits because of things said by the father and the supervisor. They say that the mother is mean and nasty and a horrible person. She said she had recordings on her telephone of [Y]’s comments. She recorded these openly.

The evidence of Dr E

Dr E adopted his affidavits and reports as true and correct.
Under cross-examination by counsel for the mother, Dr E said he was aware of the court history but had not seen the Dr H report. It would have assisted him if he had had the other medical reports. Mr Bronson conceded that his past behaviour was very inappropriate. He was trying to show he had changed.
Under cross-examination by counsel for the Independent Children’s Lawyer, Dr E said he had been practising since 1971. He was also a very experienced report writer. He was not given subpoenaed documents. The father conceded he has problems controlling his temper and felt he had changed more recently, being better able to control his temper. Anxiety disorder was inherited. The post-separation parenting program was helpful. The father would benefit from seeing a psychologist. He was not sure there was a role for medication. He did not know Dr D. Normally, Dr D should be given his report. The father was open to psychological concepts and accepted the difficulties with [S]. Dr E did not see him as concrete in his thinking

The evidence of Ms O

Under cross-examination by counsel for the Independent Children’s Lawyer, Ms O indicated that she had received Dr E’s report. She had also received the exhibit A2, being Ms B’s reports. When asked if Dr E’s report had caused her to alter her views, Ms O said that one issue was that Dr E recommended that the father engage with a psychologist. She would support this.
When it was put to her that the father was engaged with Dr D, Ms O said she would endorse this if the father commits to the engagement. This contrasted with his information last October when he did not believe he required any assistance. There are significant issues about management of anxiety and emotions. There is a continuing vulnerability on the father’s part.
When asked about the incident on 1 October 2018, Ms O said that it was a very difficult situation for the children, and the family’s conduct was not helpful. She was not aware that the mother was recording [Y]. [Y] had said what was in paragraph 30 of her report. The recommendations reflect a level of caution. There is a very long history of conflict and the children are accustomed to a certain way of spending time with their father. The children express some caution about the way they spend time with their father. Two hours at McDonald’s has limitations for children aged nine and 10. The mother does not accept the father has changed. Her views were fairly set so far as the father is concerned.
Counsel for the father indicated to Ms O that the father does not seek overnight time, but seeks unsupervised time each alternate Sunday. Counsel explained that the mother seeking three and a half hours time supervised. Ms O said some adjustment would be necessary no matter what the Court decides. Both children wanted different activities with the father, rather than McDonald’s. There are issues with protective concerns. There was a question of changeover, how and where and who is there. She did not know what the proposals were for changeover. When with the father, time has to be positive and there should be no negative comments and the adults should avoid discussion of adult issues in the presence of the children. It was important to remove stress at changeover and this was an important issue. They could use EACH at Suburb AA. She did not agree that the children were better able to communicate any problems that might arise. The children have an acute awareness of the very difficult parental issues, and this will only increase as they become older.
Under cross-examination by counsel for the mother, Ms O expressed her concerns about the incident on 1 October 2018 for the children. She was aware that psychiatric reports in 2015 and 2017 recommended committed counselling for the father. The father, still at the time of the report, had a clear view that he did not accept Phipps J’s judgment, and Ms O remained cautious.

Final submissions – the Independent Children’s Lawyer

Counsel submitted that there cannot be supervised time forever. She submitted that if therapy was put in place, this could continue for a period of time and then be re-assessed by the Independent Children’s Lawyer as to whether unsupervised time might be appropriate. The Court should make interim orders. The father was not so concrete that he could not be assisted. The children want time with the father, and the maternal grandmother was not on affidavit. The mother has never undertaken a post-separation parenting course, and both parents would benefit from a parenting orders program such as that run by Family Life at Suburb BB. There are no Intervention Orders. The children are older, and [X] is able to tell his father off. The case has to move forward, and the time cannot be supervised forever. The Independent Children’s Lawyer could speak to the children during their time with the father.
The mother’s outline of case named Ms B as supervisor, and the mother and her agents should remove themselves and leave time with the father when it is occurring. The mother’s evidence about Compass was unedifying. There was no reason the father should not know about excursions and camps and the like. Counsel drew the Court’s attention to the Independent Children’s Lawyer’s view that she saw no problem with the father being at sports games, because these were in a public place.
Counsel submitted that changeover might occur at a contact centre where there is CCTV, and the parents should remain in their cars. There was no evidence of risk to the children in the father’s care. There were no Intervention Orders and no assault on the children. It was time to move forward. The children love the father and are not alienated.

Submissions of counsel for the mother

Counsel relied on Ms O’s evidence about risk. He submitted the mother’s evidence as to description of risk should be accepted. The father has spent one month in prison and there was the incident with [S] which had an effect on the mother also. Counsel referred to the judgments of Phipps and Jones JJ. The only reason the matter was stuck in the past was the father’s inaction. He has only started seeing a psychologist at the very last moment. Counsel relied upon the case outline filed. Supervision must be indefinite. No expert has said that the father has really changed. The mother has been accommodating in regards to the father’s time. Counsel noted that the report of Dr E does not take the matter much further and that he did not have the other psychiatric reports. Further, counsel sought that there be final orders. Further proceedings would be stressful and costly for the parties.

Submissions of counsel for the father

Counsel conceded that the history of the matter did not serve the father well. Phipps J’s decision was not appealed and the father now accepts it. The Court should focus on subsequent events. There had been issues with the father’s acceptance of advice and recommendation but supervision should not be punitive. The father says he is attending Dr D and now accepts the force of his past conduct. Children have benefited from time. It was conceded the father raised his voice to Ms B in front of the children. Non-denigration orders should be made. The mother’s concerns were such that she would never accept non-supervision. There cannot be independent supervision. Counsel referred to Slater & Light [2013] FamCAFC 4 at [69] – [70] in this regard. If the Court seeks that the father undertake courses, he will accept this. Changeovers should be structured to arrange reasonably for time to take place. The mother’s attitude to Compass and the children’s sport was concerning, and it was possible the relationship between the father and the children might be severed.
The matters recorded by Phipps J were all now a long time ago, and there has been minimal misconduct from the father’s part with the children. Supervision was not appropriate and, in the alternative, should not be indefinite.

Brief findings about the credit of the witnesses

Dr E and Ms O were professional witnesses giving evidence within their area of expertise. Neither was in any way moved in cross-examination, albeit, in Dr E’s case, he suffered the disadvantage of not having had prior medical reports before him, and, in the case of Ms O, she was being asked somewhat to consider the matter of Dr E’s report on the run.
It is always unfortunate for a court to have to make remarks about parties or witnesses that may be distressing to them. In parenting issues, it should be avoided in any event, given the ongoing interrelationship between the parties. Nonetheless, the issues raised by this proceeding and the way in which the evidence was given means that there is no alternative but for the Court to make remarks which will in part be strongly critical of the parents.
The father, as he conceded, certainly has a very loud voice. I have no doubt that he continues to yell at people when he is stressed. I had the advantage of seeing him under cross-examination for an extended period of time. I have already observed that he was, throughout his evidence, angry and prone to non-responsive answers. His endeavours to explain away his refusal to permit Dr E to receive the other medical reports were exceptionally unconvincing. Many of his answers were prefaced by an observation to effect:
You’ve got to understand.
His personality struck me as being controlling, aggressive and domineering.
Ms B was a clearly honest witness, but it was obvious that she was partisan. She is a very longstanding friend of the father, and that impacts upon her objectivity. I approach her reports with some caution as a result.
The mother was at times extremely defensive under cross-examination. She clearly did say to [Y] that the father was not nice, he hurt someone’s feelings, and he was violent with her and [S], as recorded at paragraph 30 of the family report. She was reluctant to make any concessions whatever in the father’s favour, and indeed her incapacity to name even one good thing about him speaks for itself. When she was questioned about paragraph 35 of the family report and the fact that she had made a comment in the presence of the children of her concern that the father had talked to them in relation to legal proceedings, the mother’s manner was surly, evasive and non-responsive. Her decision to tape record [Y] reflects a most alarming lack of insight.

Against this background I come to the statutory pathway

Having made these findings, I turn to the statutory pathway. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65]    In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends and holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.     The child’s best interests remain the overriding consideration.”

Parental responsibility.

Little was said about this matter during the currency of the trial, if anything. The presumption as to equal shared parental responsibility is plainly rebutted by the father’s appalling violence in the past. In my view, in circumstances where the children live all but a few hours per fortnight with their mother, and the interrelationship between the parents is toxic, it is clear that the mother must have sole parental responsibility.

The children’s best interests – the primary considerations

As earlier indicated, the children were present on at least a sufficient number of occasions of family violence perpetrated by the father on the mother for [X], in particular, to remember it. The dreadful instant at separation when he deliberately drove his car into the wife’s car (I do not accept his explanation for a moment), and his endeavours to kick the door and smash the window, speak for themselves. There is self-evidently a need to protect the children from the risk of being exposed to family violence.
Against this, however, albeit that it is a matter to which less weight can be attached (section 60CC(2A), there is a clear benefit to the children in having a meaningful relationship with the father. Indeed, all parties’ positions proceed on this footing, albeit that there are differences as to how it might best be achieved. Indeed, that is the kernel of the issue in the case.

The additional considerations section 60CC(3)(a)

The children are young, but [X] was assessed by Ms O as able to express his thoughts in a capable and clear manner appropriate to his age. He expressed reservation about spending sleepovers at the paternal home and reservations as to the father’s conduct when he spends time with him. He would like to spend future time with his father, including at places other than McDonald’s.
[Y], in general, enjoyed paternal time and getting to know dad more, but likewise did not like the father saying rude stuff about the mother. I note that both children have an excellent relationship with Mr C. Although I have not seen Mr C give evidence, everyone in this case seems to speak well of him, and that is to his credit.

Section 60CC(3)(b)

The children have a well-established relationship with their mother, who has always been their primary carer. As just indicated, they seem to have an excellent relationship with Mr C and, so far as the materials reveal the matter, with his children also, who are of similar ages. The relationship with the father is somewhat more guarded (as the children were during the observation by Ms O), but it seems clear that they do wish to go on seeing him.

Section 60CC(3)(c)

The mother has been the primary carer of the children all their lives and has necessarily made the decisions about major long-term issues. She has obviously spent time and communicated with the children unexceptionably. Although the mother sought to make much of the father’s alleged failure to attend for the times when the children would be available to him, I think that the father’s desire to spend time and communicate with the children is a genuine one. He has prosecuted his case to judgment. It is clear that there have been significant difficulties of supervision as a result of a necessity to rely upon Ms B who, greatly to her credit, provides her assistance for no financial gain and, I would infer, at considerable inconvenience to herself.

Section 60CC(3)(ca)

The mother’s conduct as to the maintenance of the children requires no comment. She has plainly done her best at all times. The father does not appear to have paid child support at any stage, albeit that, being on a pension, one would assume he would be assessed at nil in any event.

Section 60CC(3)(d)

As Ms O rightly observed, the children are used to a particular style and pattern of spending time with their father. Ms O expressed reservations as to the extent to which change would be desirable. Beyond her recommendation that there be four hours on each alternate spend time episode, she was opposed to any extra time. Given the guarded nature of the children’s views already referred to, in my opinion, considerable care should be taken before any significant expansion of time could be contemplated.

Section 60CC(3)(e)

There is considerable practical difficulty and expense involved with the children spending time with the father. He lives the other side of Melbourne. Ms B has to drive a considerable distance to supervise. Nonetheless, as I find, the difficulties with the spend time regime in the past have arisen in large part because of the lack of certainty of the spend time regime, together with the incapacity of the two parents to communicate in a sensible fashion. There is nothing to suggest that the time with Ms O recommended would be unduly burdensome, both as to practical difficulties and/or expense to either of the parents.

Section 60CC(3)(f)

Neither of these parents emerge entirely free from criticism in respect of their capacity to provide for the needs of the children, including their emotional and intellectual needs. The mother, it would appear ably assisted by Mr C, plainly looks after the children from day-to-day and, in a more general way, her capacity to provide for the children’s needs is unquestioned. The area of reservation I would express is her ongoing tendency to make remarks critical of the father and/or about legal proceedings in the children’s presence.
The father’s capacity to provide for the children’s needs to necessarily limited by the very limited contact he has had with them over the years and also, as I will explain, by the limitations in his own personality. This matter is dealt with immediately below.

Section 60CC(3)(g)

The mother endured a very difficult relationship with the father during which he was controlling, aggressive and assaulted her on occasions. He pleaded guilty to the offences with which he was charged arising from his assaults and other offences. I do not accept his explanations that his pleas of guilty are wholly referable to his legal representatives. The fact is that I have no doubt that he did the things alleged, and indeed Phipps J made those findings himself in any event.
The father’s personality struck me very much, as it did others, as being self-righteous, set in his views, controlling, domineering and aggressive. He says, in effect, that the report of Dr E has acted as a sort of bombshell (my phrase, not his), causing him instantly to refer himself to Dr D. Dr D’s report speaks well of the father, but I note that he has only seen the father for two one-hour sessions, if I understand the matter correctly, and thus, Dr D’s report must be approached with caution.
I do not accept that the father has changed his view of Phipps J’s decision. He was telling the truth to Ms O when he said he did not accept it. He has not changed now. I have heard and seen him give his evidence in this regard. I do not accept it. Whether Dr E’s report, which the father did his misguided best to limit by seeking to exclude other medical information he felt was biased against him, acted on the father as he says, or not, the fact is, however, that the father has now engaged with Dr D. It is to be hoped that with Dr D’s assistance he will come to see more clearly the appalling nature of his earlier conduct and the absolute necessity to cease his practice, which I find to be far more frequent than is desirable, of denigrating the mother to the children. It is also to be hoped that with Dr D’s assistance the father can address the ongoing difficulties that he clearly has with anger management and circumstances that he wishes to control but for any reason cannot.

Section 60CC(3)(h)

This is irrelevant.

Section 60CC(3)(i)

The mother’s attitude to the children and the responsibilities of parenthood is generally unexceptionable. The qualification I would make is as to her attitude towards the father and his role in the children’s lives.
The father’s attitude towards the children is certainly one of love and affection, but contains an observable proprietorial element. His desire to see the children and to be involved in all facets of their lives has much to do with his own needs rather than any objective appreciation of the needs of the children.

Section 60CC(3)(j)

There has been appalling family violence in this matter, but it is not necessary to rehash at this point.

Section 60CC(3)(k)

There have been Intervention Orders in the past, but if I understand the matter correctly, they have now expired. They obviously came into existence in the light of the dreadful behaviour of the father both at separation and subsequently for which he was charged.

Section 60CC(3)(l)

In my view, it is wholly inappropriate to make final orders at this stage. The father is a work-in-progress at best, and has far to go before he reaches an acceptable ultimate outcome. I entirely accept the force of the Independent Children’s Lawyer’s submissions.

Section 60CC(3)(m)

There are no other relevant matters.

Conclusion

Although counsel for the Independent Children’s Lawyer submitted that the events involving the family violence to which so much reference has been made are now some time ago and the children are four years older than they were when Phipps J made his order, it is wholly unsurprising that the mother, and indeed [S], have not forgotten them at all. As I think I may have observed during the currency of the hearing, it is much easier to put these matters behind you if you are the perpetrator rather than the victim. The father needs to engage with the fact that the mother and [S] remain deeply concerned about his likely behaviour. The mother has a vivid and not manufactured fear of what might happen if the father does not get what he wants and becomes angry. He has shouted at Ms B in the presence of the children. He impressed me as a man likely to shout at anybody should he feel that he was not getting what he wanted. The father’s endeavours, as it were, to address his difficulties, have taken place very late in the day. I do not accept his explanation that Dr E’s report caused him in an instant to completely change his view of himself. Rather, I think he saw in a moment of insight how damaging Dr E’s report was likely to be to him and took steps to improve his forensic position. Nonetheless, he has engaged with Dr D and this is a step very much in the right direction.
In the end, I think my conclusions can be expressed briefly. Ms O recommended that the children have one of their two weekends expanded to four hours and not necessarily at McDonald’s. The children have expressed a desire for this to occur. I think that the time should expand to some four hours on each alternate time the children see the father. The time will be on Sundays and will not be by agreement. The Court will make the necessary orders. These orders will obviously not operate during Easter, but that is only one weekend a year, and there is no guarantee that the Easter weekends, of both religions, will necessarily fall upon a week where the children would be with the father in any event.
I will continue the order that time be supervised by Ms B. She is not wholly independent, but she is independent enough. She has the father’s confidence, which is important.
I will cause the matter to return to Court in some six months to review the father’s progress both with Dr D and more generally. Both these parents need to cut out their mutual recriminations and criticism. On the evidence before me, it seems clear that the father denigrates the mother regularly and more often than she does him. Both need to stop this for good. They need to understand that it is hurtful and damaging to the children.
Where the matter goes when it returns is not, in my view, at this stage a certainty. It is true that supervised time cannot continue indefinitely and I will be most unlikely to be making an order to that effect. On the other hand, however, the father needs to understand that this is not about an orderly progression to unsupervised time. He has to earn it. He has not done so, so far. His pathway is clearly set before him.
I have drawn draft orders to reflect these conclusions and will hear from the parties to adjust the practical details involved.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 1 August 2019

[2019] FCCA 1926

1 August 2019

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