CARDONO & CARDONO

[2018] FCCA 2449

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARDONO & CARDONO [2018] FCCA 2449

Catchwords:
FAMILY LAW – Parenting – whether the parties should have equal shared parental responsibility for their ten-year old son or whether the Mother should have sole parental responsibility – where there are alleged to be a myriad of serious risk issues surrounding the child spending time with the Father – the Mother seeks the Father’s time with the child take place at a supervised contact centre no more than four times a year – the Father seeks the child spend time with him one Saturday per month supervised by the paternal aunt.
HELD – The Mother have sole parental responsibility for the child – the child spend time with the Father four times per year at a supervised contact centre.

Legislation:

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

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant: MS CARDONO

Respondent: MR CARDONO

File Number: MLC 2284 of 2016

Judgment of: Judge Bender

Hearing date: 30 July 2018

Date of Last Submission: 31 July 2018

Delivered at: Melbourne

Delivered on: 5 September 2018

REPRESENTATION

Counsel for the Applicant: Mr Tesoriero

Solicitors for the Applicant: Not applicable

Counsel for the Respondent: Ms Bastick

Solicitors for the Respondent:	Robinson Gill
Counsel for the Independent Children's Lawyer:	Ms Weiner
Solicitors for the Independent Children's Lawyer:	Creative Family Law Solutions

ORDERS

1. All previous parenting orders be discharged.

2. The Mother have sole parental responsibility for the children [X] born 2001 (“[X]”) and [Y] born 2008 (“[Y]”).

3. [X] and [Y] live with the Mother.

4. [X] spend time and communicate with the Father in accordance with her wishes.

5. [Y] spend time and communicate with the Father as follows:

   (a)at the Berry Street Contact Centre in Town A (“the Contact Centre”) on four occasions per year for a period of two hours, on dates and at times as can be accommodated by the Contact Centre and upon any such conditions as determined by the Contact Centre; and

   (b)as otherwise agreed to between the parties in writing.

6. For the purposes of [Y]’s time with the Father pursuant to order (5)(a) herein, the parties are to do all things necessary to have arranged with the Contact Centre not less than two weeks prior to the first Saturday of each school holiday period, a date and hours during that school holiday period upon which such time is to take place.

7. The Father be restrained by injunction from consuming alcohol, illicit substances or prescription medication other than as prescribed, for 24 hours prior to or during any time that [X] or [Y] spend with him.

8. The Father be at liberty to send cards, gifts and letters to [X] and [Y] to an address nominated by the Mother.

9. The Mother shall advise the Father of any serious illness or injury suffered by [X] or [Y] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the Father to obtain information directly from any treating medical practitioners.

10. The Mother shall notify the Father of any medical, counselling or other specialist assessments for [X] and [Y] and authorise the relevant treating professional to provide the Father, at the Father’s expense if any, with any information in relation to that treatment as the professional considers appropriate.

11. The Mother shall authorise [X] and [Y]’s school/s to provide the Father with copies of all school reports, school photograph order forms and newsletters, at the Father’s expense if any.

12. Each party keep the other informed of their current residential address, contact telephone number and email address.

13. The parties be restrained by injunction from:

    (a)denigrating the other or any member of the other’s family to or in the presence or hearing of [X] and [Y], and from allowing anyone else to do so;

    (b)discussing these proceedings with or in the presence or hearing of [X] and [Y], and from allowing anyone else to do so; and

    (c)questioning [X] and/or [Y] about the activities of the other parent.

AND THE COURT NOTES THAT:

A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2284 of 2016

MS CARDONO

Applicant

And

MR CARDONO

Respondent

REASONS FOR JUDGMENT

Introduction

1. The issues for determination in this parenting matter in relation to the parties’ 10 year old son [Y] born 2007 (“[Y]”) are:

   a)whether the parties should have equal shared parental responsibility for [Y] or the Mother have sole parental responsibility; and

   b)whether [Y] should spend supervised time with the Father four times a year at the Berry Street Contact Centre which is the Mother and the Independent Children’s Lawyer’s proposal, or on the first Saturday of each month between 10.00am and 4.00pm, such time supervised by the Father’s sister Ms R, which is the Father’s proposal.

2. The parties have two older children, Ms C born 1996 (“Ms C”) aged 22 years and [X] born 2001 (“[X]”) aged 16 years.

3. The parties are in agreement orders should be made for the Mother to have sole parental responsibility for [X], for [X] to live with the Mother and spend time with the Father in accordance with her wishes.

Background

1. The Mother was born on 1976 and is aged 42. The Mother is employed on a part-time basis as a (occupation omitted). The Mother lives in the former matrimonial home in Town B with Ms C, [X] and [Y]. The Mother is in a relationship with Mr T. It is the Mother’s evidence that she and Mr T do not live together.

2. The Father was born on 1976 and is aged 42 years. He is unemployed. The Father is currently living with his mother in Suburb 1. The Father is not in a relationship.

3. The parties commenced co-habitation in 1994 and married in 1996.

4. The parties initially lived in Suburb 2 before moving to their first home in Town C in or around 1998/1999. In or around 2003 the parties moved to Town B .

5. It is common ground the Father used marijuana on a daily basis for most, if not all of the marriage. In early 2015 the Father contracted pneumonia. It is his evidence that after his release from hospital and despite his poor health, the Mother insisted he return to work; at that time the Father was a self-employed (occupation omitted). It is the Father’s evidence that in order to overcome his lack of energy he began using the drug crystal methamphetamine (“ICE”) on a daily basis by adding it to his water bottle.

6. The parties separated in November 2015 when the Mother, [X] and [Y] left the former matrimonial home at Town B (“the former matrimonial home”). It is the Mother’s evidence separation occurred following the Father’s behaviour becoming increasingly unpredictable, unsettling and threatening.

7. At the former matrimonial home on 16 December 2015, the Father was seriously assaulted to the head with a hammer and his associate was shot. These assaults were drug related.

8. On 30 December 2015 the Father and his brother took [Y] camping for two nights. On 1 January 2015 the Father refused to return [Y] to the Mother’s care. On the suggestion of the police, the Mother contacted the Department of Health and Human Services (“DHHS”). On 1 January 2016 DHHS issued a Protection Application and [Y] was made subject to an Interim Accommodation Order. He was initially placed in the care of his oldest sister Ms C as DHHS were concerned that the Mother could be at risk of reprisal from those who had assaulted the Father.

9. On 4 January 2016 at the Children’s Court, orders were made placing [Y] in the care of the Mother with a condition the Father’s time with [Y] be supervised. On 27 January 2016 a Family Preservation Order was issued for a period of 12 months. That order provided for [Y] to remain in the Mother’s care and for the Father’s time to be supervised.

10. On 4 January 2016 the Mother obtained an interim Intervention Order for the protection of herself, [X] and [Y]. This order was made final for a 12 month period on 27 January 2016. The Father was charged and convicted of three breaches of the Intervention Order. On 18 January 2017 the Intervention Order was extended for a period of two years. This order is for the protection of the Mother only.

11. Whilst the Family Preservation Order was in place the Father’s time with [Y] was initially supervised by his sister Ms R. The time was then supervised by the Father’s girlfriend at that time, Ms E, and when that relationship broke down, by his friend Mr B.

12. The Mother commenced proceedings in this Court on 27 January 2016 seeking both property and parenting orders. When the matter first came before the Court on 16 May 2016, procedural orders relating to property matters only were made. As [Y] was then subject to a Family Preservation Order, no parenting orders were made.

13. At or around the time of the expiration of the Family Preservation Order on 27 January 2017, Ms L of DHHS contacted the Mother to advise that the Father had spoken to her and had threatened to remove [Y] from school and not return him to the Mother’s care.

14. Because of this call from DHHS, the Mother’s solicitors wrote to the Father on 3 February 2017 advising that because of the Father’s threat to abscond with [Y], [Y] would not spend time with the Father absent a court order.

15. The matter came before the Court on 20 March 2017. On that date the final hearing date of 21 June 2017 was confirmed, an Independent Children’s Lawyer was appointed, an order was made for a family report to be prepared and an interim order made for [Y] to live with the Mother and for him to spend time with the Father as agreed between the parties in writing. The parties were ordered to undertake supervised drug screens within 48 hours of a written request to do so received from the Independent Children’s Lawyer.

16. A family report dated 13 June 2017 was prepared by Family Consultant Ms B. In Ms B’s report under the heading “Recommendations” she stated:

    “On the basis of the information provided, my observations, and request of me by the Court, and unless there is further information available that might indicate otherwise, in this report I respectfully recommend that:

    143.   [X] chooses the living arrangements with her mother Ms Cardono and her father Mr Cardono. Ms Cardono supports her in preparing to initiate contact with Mr Cardono.

    144. [Y] spends time with his father at a supervised contact centre for up to two hours each fortnight until Mr Cardono complies with all assessment recommendations and commences the recommended treatment.

    145.  When the contact centre provides positive reports of the supervised time and considers unsupervised time appropriate to commence, then [Y] spends time in an arrangement recommended by the contact centre and by agreement with Ms Cardono.

    146. Mr Cardono undertakes a psychological/psychiatric assessment and assessment of his cognitive functioning and he complies with all treatment recommendations.

    147. Mr Cardono provides evidence of cessation of illicit drug use and undertakes drug and alcohol counselling.

    148. Ms Cardono attends post separation parenting education.”

17. Given Ms B’s recommendations, the matter did not proceed to final hearing on 21 June 2017. Orders were made for the Father to attend upon a psychiatrist for a psychiatric assessment and report and upon a psychologist for a risk assessment and report.

18. On 21 June 2017 orders were also made for the Father, who until then had been living in the former matrimonial home, to vacate the former matrimonial home by 4.00pm on 7 July 2017 and thereafter for the Wife to have sole use and occupation of the former matrimonial home. When the Mother returned to the former matrimonial home it was in a shocking condition. The home was filthy, full of rubbish and fixtures had been removed. Drug paraphernalia including ICE pipes, smoking apparatuses and traces of marijuana were found.

19. It is the Mother’s evidence Town B Shire issued a section 106 Building Notice pursuant to the Building Act 1993 (Vic) declaring the former matrimonial home an unsafe dwelling. It was not until 16 November 2017 that the Mother was able to complete the necessary clean up and repairs to the satisfaction of Town B Shire so that she, Ms C, [X] and [Y] could resume living in the former matrimonial home.

20. The matter returned to court on 11 December 2017. On that date the matter was listed for final hearing on 30 July 2018 and orders made for an updated family report.

21. The Father has spent no time with Ms C and [X] since January 2016 save for brief periods for the family report interviews. The Father has spent no time with [Y] since February 2017, again save for the family report interviews.

22. On 31 July 2018 during the luncheon adjournment of the final hearing there was an alleged abusive verbal exchange between the Father, the Father’s sister Ms R and the Mother’s boyfriend Mr T at the café connected to the Court. Each party swore brief affidavits as to what occurred and gave vive voce evidence as to who said what to whom.

23. Each party accuses the other of uttering one or two expletives in passing. It is impossible to determine who, if anyone, said what. This incident is best described as a “storm in a teacup” and has no relevance to the issues for determination. This incident will not be further canvassed in this judgment.

24. Unfortunately the property aspect of this case was unable to proceed. Valuations have not been undertaken and full and frank disclosure has not been completed. The parties were, until very recently, unrepresented and had therefore not realised what was required of them to prepare the property aspect of their case for final hearing.

The Evidence

The Mother

1. The Mother relies on her affidavits sworn 25 January 2017,

   
   

   29 November 2017, 28 June 2018 and 31 July 2018. The Mother also gave vive voce evidence at the final hearing.

2. The Mother is seeking orders she have sole parental responsibility for [Y], that [Y] live with her and spend supervised time with the Father four times a year at Berry Street Contact Centre in Town A.

3. The Mother accepts [Y] loves the Father and wishes to spend regular time with him. However, because the Father poses such a risk to [Y], it is the Mother’s belief that any time [Y] spends with the Father must take place within the confines and safety provided by a contact centre.

4. When discussing the risks the Father poses to [Y], it is the Mother’s evidence the Father’s ongoing drug use of not only marijuana but also of ICE continues to be a concern for her. It is the Mother’s evidence that she believes the greatest risk that the Father poses to [Y] is his unremitting and increasing anger and hatred of her. It is the Mother’s belief that such is the extent of the Father’s anger towards her, which she believes is getting worse, he could hurt [Y] in order to get back at her. To quote the Mother, she “hates to think what he would do to get back at me.”

5. It is the Mother’s evidence that whilst the Father’s sister, someone she spoke of very highly, would do her best for [Y], it is her belief that neither Ms R nor any family member would be able to manage the Father’s behaviour or prevent him from doing harm to [Y] given the level of anger he has towards her at this time.

The Father

1. The Father relies on his affidavits sworn 19 July 2018 and 31 July 2018. The Father also gave vive voce evidence at the final hearing.

2. In addition, the Father relies on the affidavits of his sister Ms R sworn 26 July 2018 and 31 July 2018. Ms R also gave vive voce evidence at the final hearing.

3. The Father is seeking orders that the parties have equal shared parental responsibility for [Y], that [Y] live with the Mother and spend time with him one Saturday per month as agreed between the parties and failing agreement on the first Saturday of each month between 10.00am and 4.00pm, such time to be supervised by his sister Ms R.

4. In the alternative it is the Father’s proposal that given he has spent no time with [Y] for the last 18 months that he initially spend six supervised visits with [Y] at Berry Street Contact Centre Town A and thereafter time move to once monthly supervised by Ms R.

5. It is the Father’s evidence that he and [Y] have a close and loving relationship which can only be maintained if he spends regular time with [Y] which at a minimum is that being proposed by him.

6. It is the Father’s evidence that four two-hour visits annually will not enable [Y] to maintain a meaningful relationship with him and that given [Y]’s expressed and clear wishes to spend time with him, such limited time cannot be seen to be in [Y]’s best interests.

7. It is the Father’s evidence that he has never been violent towards the Mother or any of his children and he rejects absolutely the Mother’s evidence that he poses any risk of harming [Y] in any way whatsoever.

8. It is the Father’s evidence that he continues to use marijuana on a daily basis but that he has only used ICE on one occasion in the last 12 months.

9. The Father explains his failure to undertake all but one of the six drug screens requested of him by the Independent Children’s Lawyer in 2018 as being a result of the necessity to obtain a referral from his General Practitioner before such drug screens could be undertaken. He offered no explanation as to why he could not get such referrals.

10. When questioned about his lack of any relationship with his daughters Ms C and [X], it is the Father’s evidence that the breakdown in his relationship with his daughters is as a direct result of the Mother deliberately undermining his relationship with them. He is adamant in his denial that he has contributed in any way to his failure to have a relationship with his daughters.

11. During the preparation of the second family report, the Father was observed with Ms C, [X] and [Y]. The Father greeted Ms C but she did not respond to that greeting. The Father then broke down in tears and wept on [Y]’s shoulder.

12. When questioned about the impact on [Y] of having to comfort him in this way, the Father somewhat reluctantly agreed that it was not appropriate that [Y] should have to do this for him. The Father was quick to point out that he pulled himself together very quickly. The Father was most critical of Ms C and [X] for attending the observation period at that time if they had no intention of speaking to him and spoke of them disrupting the short period that he was able to have with [Y].

13. The Father fails to acknowledge that at no time did he greet or attempt to interact with [X] or exhibit any insight how this might have impacted on her.

14. When questioned on how he began using ICE, the Father placed the blame for this entirely at the feet of the Mother and her now partner Mr T.

15. It is the Father’s evidence that it was Mr T who first introduced him to ICE. It is his further evidence that he commenced using ICE after he suffered a bout of pneumonia. It is the Father’s evidence that when he returned home from hospital he was advised by his doctors to have six weeks’ bed rest. It is his evidence that the Mother forced him to return to work because they needed the money. It is noted that at this time the Father was employed in his own business. It is the Father’s evidence that he commenced using ICE in order to give him the energy to get through his long and difficult working days. He described putting a small amount of ICE into his water bottle each day. It is the Father’s evidence that the impact on him of using ICE was to give him energy and that no one would have realised he was using ICE.

1. What was apparent when the Father was giving his evidence was his palpable anger towards and intense dislike of the Mother. It was clear from his evidence that he holds her solely responsible for the circumstances in which he currently finds himself.

2. When questioned about the breaches of the Intervention Orders that the Mother has against him, it is the Father’s evidence that the breaches were all minor and that he has done everything to avoid coming into contact with the Mother because “…all she is trying to do is get me locked up in jail for breaches that are absolute garbage really.”

3. When asked what drug and alcohol counselling he has undertaken, it is the Father’s evidence that other than a ‘Caution with Cannabis’ course which was one session approximately four months ago, he has not undertaken any other form of drug and alcohol counselling. This is despite the recommendations in both family reports, the report of

   
   

   Dr K and the various corrections orders that he has been placed under for previous drug offences.

Ms R

1. Ms R is the Father’s sister. As previously set out in this judgment she has filed affidavits on the Father’s behalf sworn 26 July 2018 and 31 July 2018 as well as giving vive voce evidence at the final hearing.

2. The Father proposes that Ms R supervise his time with [Y] each month.

3. It is Ms R’s evidence that she is more than willing to supervise time between [Y] and his father.

4. It is Ms R’s evidence she does not believe the Father to pose any physical risk to [X] but considers he may at times pose an emotional risk to [X] if he should become emotionally upset as this upsets [X].

5. It is Ms R’s evidence she believes that she would be able to physically restrain the Father if he tried to remove [X] from her care as she is the person that the Father will listen to, “if he listens to anyone”.

6. It is Ms R’s evidence that she is aware of the Father’s habitual use of marijuana as she smells its presence on him very strongly. It is her evidence that she has no knowledge of what is the impact of someone using ICE.

7. When the Mother’s concern that the Father is getting angrier with her was put to Ms R, she responded that she was unable to comment on that other than to make the observation that the Father was pretty angry with the Mother from the beginning. She made the further observation that the Father’s anger at the Mother is not worse but that it is not any better either.

8. Ms R was asked what she would do if she was supervising time between the Father and [Y] and he were to behave inappropriately either by becoming overly emotional in [Y]’s presence, spoke derogatively about the Mother in front of [Y] or was clearly drug affected. It is Ms R’s evidence that she would pick [Y] up and say “we’re out of here kiddo.”

9. Ms R spoke positively of the Mother as a parent and was not of the view that the Mother would have undermined the relationship between the Father, Ms C and [X].

10. Ms R impressed as a straightforward, honest and child focused witness who would take the responsibilities of supervision very seriously.

Ms J

1. Ms J is a Family Consultant with the Federal Circuit Court of Australia. Ms J prepared a second family report in this matter dated 25 June 2018. Ms J also gave vice voce evidence at the final hearing.

2. In her family report Ms J describes the Mother in paragraph [35] as “calm, considered and with a child focus.”

3. In paragraph [46] Ms J notes the Mother to advise that it would be nice if the children could see their father and have a relationship with him and that if she thought it would be good for [Y] she would encourage their relationship. The Mother told Ms J however that she had concerns about the Father’s parenting abilities and skills in particular because of his drug use.

4. In paragraph [49] Ms J sets out that the Mother described the Father as “a screaming mental case, he hates her and wants to make her life a misery”. The Mother expressed concern to Ms J that the Father’s hatred of her will fuel him to try and hurt her by hurting [Y].

5. In relation to the Father Ms J describes the Father as somewhat irritable and anxious and presenting as having a lowered mood and sullen. She describes him as at times crying during the interview when speaking of [Y] and of him advising her he has some issues with memory as a result of the assault he experienced in 2015 when he experienced a head injury.

6. Ms J reports the Father expressing particular concern in relation to the Mother’s partner Mr T and of his belief that the Mother was involved in an affair with him prior to their relationship ending. Ms J further reports in paragraph [57] the Father raising concerns in relation to [Y]’s exposure to Mr T as a result of his belief Mr T spent six months in prison as a result of being convicted of a significant incident of family violence against his former partner. The Father also accuses Mr T of being a person who dealt ICE, as on the Father’s evidence it was Mr T who “pushed that stuff upon me.”

7. In paragraph [59] Ms J states the Father believes Ms C, [X] and [Y] have been influenced by the Mother to reject him. The Father told Ms J the Mother would send them to the former matrimonial home when he was living there in order to “stir him up.” Ms J reports that the Father told her he believes the Mother has denigrated him to Ms C, [X] and [Y] which has resulted in them rejecting him.

8. Whilst Ms C is now an adult, given she is a member of the family, Ms J interviewed her when preparing the family report. In paragraph [73] Ms J sets out the following:

   “Ms C advised that she saw her father more frequently following her parents separation in order to try to maintain a relationship with both.  She stated that she was unable to manage her father’s behaviour, including the denigration against her mother, his volatile outbursts and the frequent messages of suicide and his emotional distress so she ceased all contact with him. At this time, as a result of the messages, the Police advised her to apply for an Intervention Order, however, she chose not to do this at that time.  She had not had any contact with her father in two years, however, recently he contacted her via social media to which she did not respond.”

9. In relation to [X], Ms J reports [X] told her she had not seen her father for about two years and that she and her father had never been very close as she perceived the Father to have a preference for Ms C and [Y].

10. In paragraph [78] Ms J sets out the following:

    “[X] advised that she does not want to see her father, that they have never been close and never had a good relationship.  She advised that she believes that [Y] wants to see his father, however, she is concerned that her father will talk with [Y] about their mother and try to get information from him.  She also stated that “some of his behaviour shouldn’t be around [Y]”.  When challenged what she was referring to, [X] shut down and would not be specific about what she meant.”

11. Ms J describes [Y] as a delightful and articulate 10 year old boy who told her he has a strong bond with his mother because of how she cares about him and worries about him and how they talk with each other regularly at bed time.

12. In paragraph [81] Ms J reports as follows:

    “Whilst [Y] advised that he wants to see his father he stated he thinks it would be better to see him after school on Fridays to 8pm.  He stated that he would like to spend some overnight time with his father, however, stated that it was good to have his Aunty around when he has previously spent overnight time with his father.  [Y] advised that if his father was unavailable, if he went to the garage, he always had his Aunty available to him.”

13. Ms J reports Ms C, [X] and [Y] to describe a good relationship with Mr T and his children although [Y] reported an incident on 14 February 2018 when Mr T became very angry after Mr T and the Mother had an argument.

14. In relation to the interaction between Ms C, [X] , [Y] and the Father, Ms J sets out what occurred in paragraphs [85] to [89] of her report as follows:

    “85. Both Ms C and [X] initially advised prior to the observations that they did not want to see their father and [Y] did.  Ms C was offered the opportunity to leave and [X] was provided with an appropriate safety plan.  However, following a discussion between the siblings, it was decided that Ms C would stay to support [X] and [Y] would try to distract their father away from his sisters.

    86.  Upon entering the playroom [Y] went immediately over and cuddled his father and tried to direct his father to a seat away from his sisters, where they sat down and [Y] sat on his father’s knee.  Mr Cardono looked over towards the girls and said “hi girls” to which [X] replied “hi” and Ms C looked up, however, did not respond.

    87.  [Y] and his father engaged in appropriate conversation and [Y] was particularly talkative with his father.  During a break in conversation, Mr Cardono tried again speaking to Ms C stating “I love you Ms C, you don’t have to ignore me”, however, Ms C did not respond.  As a result, Mr Cardono started to cry and cried into [Y]’s shoulder, with [Y] providing emotional comfort to his father.  Mr Cardono gathered himself and he and [Y] went to play a game together.

    88.  With the observation ending, Mr Cardono approached the girls and stated “it was nice to see you girls” with [X] looking up and smiling at him and Ms C looking at him and shaking her head “no” and holding up her hand towards him.

    89. On the way out of the playroom, Mr Cardono turned to the writer and stated “see she has manipulated them against me”.”

15. In describing the interactions of Ms C, [X] and [Y] with the Mother, Ms J sets out the following in paragraph [90]:

    “Ms C entered the playroom and immediately sat with all the children at a small table where they instantly started playing a game of ‘cards’ together.  They were all laughing, smiling and engaging in sarcastic banter with each other in what looked like a relaxed and familiar activity.”

16. Under the heading ‘Evaluation’ when discussing [X], Ms J states the following:

    “92.   There is an acknowledgement by both Mr Cardono and [X] that they do not share a particularly strong bond.  During the observations, the distance between Mr Cardono and [X] was evident with each appearing to tread with caution around the other and Mr Cardono not making any attempts to engage with [X] as he did with Ms C and [Y]…

    93.   Given Mr Cardono has not initiated this contact presents as consistent with a level of rejection of [X] by him.  Mr Cardono made some concerning statements during interview in relation to [X] suggestive of rejection of her by him, such as “[X] is like her mother.  She would do things to stab and provoke me, she would do things that a kid shouldn’t do to a parent”.  During observations, Mr Cardono made little effort to engage with [X] and when attempting to direct conversation towards her he would refer to both [X] and Ms C as “girls” and did not single out [X] to speak with her as he did with both Ms C and [Y].”

17. In relation to [Y], Ms J states the following:

    “95.   Ms Cardono’s proposal that any time [Y] spends with his father be supervised needs to be explored.  During the course of DHHS’ involvement with the family when Mr Cardono last spent time with [Y], the bulk of the time spent together was supervised either by DHHS, a paternal family member or friend.  [Y] also reported feeling comforted by having someone else around during his time with his father who was able to provide care when his father was unavailable.  The writer had concerns during the observation with Mr Cardono inappropriately looking to [Y] for comfort when rejected by his daughters.  This type of behaviour by Mr Cardono was raised in the material as concerning during previous time spent with [Y].

    96.   The writer has concerns in relation to the dynamic between [Y] and his father.  [Y] reported that following the camping trip when his father asked him if he wanted to spend more time with him, [Y] gave his father the response he knew he wanted and that [Y] knew would make his father happy.  It appears as though [Y] has taken on a caring role for his father by taking some responsibility to assist in improving his father’s mood.  This is suggestive of a possible pattern of behaviour between [Y] and his father that is both inappropriate and developmentally and emotionally adverse.  It appears as though there is a pattern of behaviour with Mr Cardono relying on his children to provide emotional support and comfort…

    98.   The information obtained suggests that Mr Cardono was somewhat unavailable to the children during the period of the relationship and it appears as though the emotional distance between Ms C and [X] and their father has only become wider.  In spite of the time since [Y] last saw his father, he stated he would still like to see him.  Whilst this may very well be the simple fact that he wants a relationship with his father the writer is concerned that it may be in part motivated out of a sense of responsibility to his father to ‘keep him happy’, a sense of responsibility that he is the only member of the family with a relationship with his father and the temptation of receiving electronic equipment and gifts…

    100. Mr Cardono made many statements about Ms Cardono’s involvement in alienating and manipulating the children against him.  There are concerns in relation to Mr Cardono’s insight in relation to his own behaviour and whether he has the capacity to take responsibility for the consequences of same.  Mr Cardono’s narrative throughout the interview focused heavily on him being a victim of both Ms Cardono’s and Mr T’s behaviour towards him and the negative impact this has had on his relationships with the children.  Mr Cardono’s anecdotal information lacked any accountability for his own actions and the possibility that his behaviour may have been the influencing factor in relation to his relationship with [X] and that both Ms C and [X] possibly rejecting him as a result of their lived experience of his behaviour, drug use and associated alleged criminality…

    103.   Mr Cardono’s narrative at interview presented as being egocentric and somewhat malicious against Ms Cardono.  Mr Cardono’s minimising of his behaviour in relation to the breaches of the Intervention Orders, his mental health, illicit substance abuse and relationships with the children raised significant concerns.  He was not able to demonstrate insight into how any of his alleged behaviour has resulted in his current circumstances or how these behaviours may pose a risk to [Y] whilst in his care.

    104.   Whilst Mr Cardono acknowledged marijuana use there are serious concerns in relation to the allegations raised about Mr Cardono’s illicit substance abuse and possible dealing of illicit substances and the risk this poses to the children, in particular, [Y] if in his father’s care.  The incidents of the significant assault on Mr Cardono and the destruction of the former matrimonial home appear to be consistent with Mr Cardono’s involvement with illicit substance abuse.  With past behaviour being the best predictor of future behaviour, the writer is significantly concerned about Mr Cardono’s continued potential involvement with drug sub-culture and the possible risks this poses to [Y] in his care.

    105.   Ms Cardono has made application to the Court for sole parental responsibility in relation to [X] and [Y].  It appears as though Mr Cardono has himself rejected [X] and given this behaviour, there is a risk this may be possible in relation to [Y].  Since separation, Mr Cardono’s behaviour including his alleged illicit substance abuse, his rejection of [X], his minimising of his actions in relation to incidents of family violence, the emotional dysregulation in the presence of [Y] and relying on [Y] to provide comfort and his lack of action to minimise the level of risk he poses to the children as ordered by the Court raises concerns in relation to Mr Cardono’s parental capacity.

    106.   Consideration needs to be given to weighing up [Y]’s desire to spend time with his father and the level of risk which this poses to him.  Mr Cardono presents as having unstable accommodation, possible unstable mental health, a possible continued involvement with illicit substance abuse and [Y]’s apprehension about being alone with his father all present as a probable high level of risk to [Y] in the care of his father.  Given these issues, it is the assessment of the writer that any time [Y] spends with his father needs to be within the safety of a supervised contact centre.  Given Mr Cardono is planning on relocating to a distance of some four hours away, this time should occur no more than up to 4 times per year.  The benefit of this reduced time frame would be to maintain the relationship between [Y] and his father, yet protect [Y] from potential harm in his care.  When [Y] is of an age to truly self-protect, he may choose to increase that time then.

18. Somewhat succinctly under the heading ‘Recommendations’, Ms J sets out her recommendations in paragraphs [107] to [110] as follows:

    “107.   It is recommended that both [X] and [Y] live with their mother.

    108.   It is recommended that Ms Cardono have the sole parental responsibility for [X] and [Y].

    109.   It is recommended that there are no orders in relation to time spent between [X] and Mr Cardono.

    110.   It is recommended that [Y] spend supervised time with his father 4 times per year in a professionally supervised contact centre.”

19. When giving her vive voce evidence, Ms J was asked what were the risk factors that she had identified in relation to the Father that had led to her recommend that [Y] only spend time with him four times a year in a contact centre. Ms J evidence is as follows:

    “The Father’s alleged drug use, the relationship that may have occurred between drug associates and criminal associates as a result of that drug use…one of the strong risk factors for me was the Father’s absolute rejection of [X] and the potential that that may happen to [Y], the Father’s emotional dysregulation, his mental health issues and using the children, or relying on the children as emotional supports to him.”

20. Ms J was asked about the Mother’s fear that the level of the Father’s hatred of her is such that he may hurt [Y] as a way of getting back at her.

21. Ms J responded that when the Father spoke about the Mother during the interviews for the family report, he was filled with a lot of emotion, anger and hate towards her. She further stated that:

    “the Mother did make those statements to me during interview and of course they are taken into consideration when making an assessment. I can’t tell you definitively whether that would happen or it wouldn’t, however, in terms of my assessment, risk factors were high enough for me to recommend that any time spent between [Y] and his father occur in a contact centre and is was taking into account all of the risk factors not just that one.”

22. It is Ms J’s evidence that the main allegation raised by the Father against the Mother is that he believes the Mother is influencing the children against him. Ms J was asked whether she believed that the Father’s allegation had any validity. Ms J responded: “I didn’t believe that the children were influenced in any way.”

23. Ms J was questioned as to the appropriateness of orders being made for [Y]’s time with the Father to be supervised by Ms R rather than in a contact centre.

24. Ms J’s evidence is that this was not something that she assessed as appropriate and that her recommendation is that [Y]’s time with the Father occur in a contact centre. When asked to expand as to why she thought it was not appropriate, Ms J replied as follows:

    “The risk factors that I assessed, to me, in terms of the assessment were that… the level of risk posed to [X] in his father’s care outside the contact centre would be too risky for him”.

25. Ms J confirmed she would not recommend any supervised time outside of a professional contact centre, whether that be supervised by Ms R or a professional supervisor. It was put to Ms J that this was not a measure of the capacity of such supervisors, but rather her assessment that the formality of a contact centre and the additional security that provides are needed to address the risk factors that she had identified in the Father. She responded “That’s correct. Yes your honour.”

1. Ms J was asked what the Father would need to do to ameliorate those risks such that the Court could consider something other than that which she was recommending. Ms J responded that there would need to be significant and substantial counselling. When asked what that counselling would need to be, Ms J replied:

   “One of my – one of the risk factors was that Mr Cardono lacked insight and the ability to reflect on his own behaviour and actually see how that impacted on his children.  Everything that he talked about was other peoples’ fault, and he was unable to take responsibility for anything that he – you know, that meant that this situation that we have today was partly he was responsible for.  So, in that respect, any future time outside what I’ve recommended would absolutely have to be significant counselling, with a report provided at the end to suggest that perhaps, you know, he’s able to have some insight into his own capacity, his understanding of the circumstances, the understanding of his own behaviour and the impact of that on [Y].”

2. Ms J concluded her evidence by saying the following:

   “Part of the reason for recommending the contact centre was also to provide some safety and security around [Y]’s developmental wellbeing and his emotional wellbeing.  So being outside of the family, it provided him an opportunity not to be caught up in, I guess, the family dynamics, where he was then able to hopefully make a decision himself, as he grew a little bit older, to whether or not that contact was something that he could manage on his own.  But he’s still very young and that’s my concern as well.”

Dr R/ Dr K

1. Dr A, psychiatrist, conducted a psychiatric and risk assessment of the Father, contained in his report dated 14 June 2018. Dr K undertook a psychological evaluation and neurological assessment which is contained in his report of 23 July 2018.

2. Neither the parties nor the Independent Children’s Lawyer sought to cross-examine either of Dr A or Dr K and did not rely on the assessments and reports of Drs A and K.

The Law

Best interests of the child

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):

   “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).”

2. Section 60CA of the Act provides that:

   “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

3. To determine what is in the best interests of the child, the Court must consider the matters set out in section 60CC(2) and section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court, must be considered and assessed in the context of each of the parties’ proposals. The Court should then make a decision as to which of the parties’ proposals, or such other arrangement as the court determines given the Court is not bound by the parties’ proposals, is in the children’s best interests.

Section 60CC(2)

1. Section 60CC(2) of the Act sets out the primary considerations that the Court must consider when determining what is in the best interests. They are as follows.

Section 60CC(2)(a): the benefit of the child having a meaningful relationship with both of the child’s parents

1. [Y] has a close and loving relationship with the Mother as is evidenced by his description of their relationship to Ms J.

2. Whilst [Y] clearly loves his father and expresses a desire to see him, he has spent no time with his father for the last 18 months and was spending limited supervised time with him in the preceding 12 months.

3. Whilst ideally [Y] should be able to have a meaningful relationship with both his parents, the issue central to this matter is whether the concerns in relation to the Father and his functioning outweigh the benefit to [Y] of having a meaningful relationship with him.

Section 60CC(2)(b): the need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

1. This is the issue central to the determination of this matter.

2. As has been set out in this judgment, there are serious concerns as to the Father’s functioning and in particular his ongoing issues with illicit substances, his ongoing criminal behaviour as a result of his drug use noting that he has outstanding matters before the Magistrates’ Court for driving whilst under the influence of marijuana and possession of marijuana, questions as to his mental health, his inability to regulate his emotions when with [Y], concerns as to his reliance upon [Y] for his own emotional and psychological wellbeing and his intense anger and hatred of the Mother.

3. It is the Mother’s evidence and genuinely held belief that such is the level of the Father’s anger and dislike of her, there is a risk that the Father will harm [Y] in order to get back at her.

4. It is Ms J’s clear evidence that such is the current level of risk that the Father poses to [Y], supervision other than in a contact centre would not be appropriate, including supervision by a family member or by a professional supervising agency.

Section 60CC(3)

1. Section 60CC(3) of the Act sets out the additional considerations the court must consider when determining what is in the child’s best interest.

2. Each of the matters set out under that section will be considered in turn where applicable in this matter. 

Section 60CC(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.

1. [Y] has expressed a clear wish to spend time with his father, both to Ms B in 2017 and again to Ms J during the preparation of the most recent report. The Mother also agrees that [Y] wants to spend time with his father as do his older sisters Ms C and [X].

2. In her family report Ms J raises concerns about [Y]’s wishes in part being motivated by his sense of responsibility to keep his father happy, as well as the sense of responsibility that he is the only member of the family who has a relationship with his father. Ms J also notes that because of the Father’s generosity to [Y] when he spends time with him in that the Father gives him various electronic gifts and games, there might be an element of [Y] wanting to receive those gifts in his wish to spend time with his father.

3. In paragraph [106] of her family report Ms J states that consideration needs to be given to weighing up [X]’s desire to spend time with his father with the level of risk that such time would pose to him.

4. It is Ms J’s clear evidence that the risk the Father poses to [Y] if he were to spend anything other than very limited supervised time in a contact centre outweighs [Y]’s wish to spend time with the Father.

Section 60CC(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)

1. As has been clearly set out in this judgment, [Y] has a close and loving relationship with the Mother and his sisters Ms C and [X].

2. [Y]’s relationship with his father is much more complex given the very limited time they have spent with each other since separation and in light of the observations of Ms J as to [Y] feeling a level of responsibility for his father’s happiness and wellbeing.

3. [Y] has a positive relationship with the Mother’s new partner, Mr T.

4. Because [Y] has spent no time with the Father in the last 18 months, [Y] has not had an opportunity to interact with his extended paternal family.

5. It is understood [Y] has a positive relationship with his extended maternal family.

Section 60CC(3)(c) the extent to which each of the child's parents 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;

(iii)  to communicate with the child.

1. The Mother has had the sole care of the parties’ children since separation and has been emotionally, physically and financially responsible for their care with no input from the Father. This is understandable given the involvement of DHHS with this family for the first 12 months after separation and the complete lack of communication and trust between the parties.

Section 60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

1. The Mother has had the sole financial responsibility for the care of [X] and [Y] as the Father has not been in paid employment since the assault in the former matrimonial home in December 2015.

Section 60CC(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.

1. Not relevant.

Section 60CC (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.

1. Not relevant.

Section 60CC (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.

1. There is no doubt the Mother has the capacity to, and has been meeting, [Y]’s emotional and intellectual needs.

2. Whilst the Father clearly loves [Y], his capacity to provide for [Y] emotionally, intellectually and practically is very much in doubt.

3. The Father’s long-standing issues with illicit substance abuse/addiction and his failure to address those issues in any way, his mental health difficulties including ongoing serious depression, his emotional dysregulation and his unabating hatred of the Mother are such that his ability to be focussed on the needs of [Y] over and above his own needs is highly questionable.

4. Further, the Father’s complete lack of insight into the impact his behaviours have had on his relationship with his children and in particular his daughters Ms C and [X] is clear. This raises real questions about the Father’s future relationship with [Y] as [Y] gets older, especially if he were to challenge his father and his father’s behaviours.

Section 60CC (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.

1. Not relevant

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

1. The Mother is a responsible parent who is committed to [Y] and wants what is best for him.

2. The Father’s behaviours are not those of a responsible parent, particularly his long-term drug addiction and his overt rejection of his daughter [X].

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family.

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)   the nature of the order;

(ii)   the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the   order;

(v)    any other relevant matter.

1. The Mother currently holds an intervention order for her protection against the Father, which is not due to expire until 2019.

Section 60CC (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.

1. A cessation of litigation between these parties is in [Y]’s best interests.

2. Whilst the orders proposed by the Mother and the Independent Children’s Lawyer are extremely limited in the context of the time [Y] would spend with the Father, any future litigation will be predicated on the Father taking all the requisite steps to satisfy the Court that he had genuinely addressed the matters which had given rise to the necessity for his time to be supervised.

3. On the current evidence, there has to be a level of pessimism about the Father’s capacity to make those changes. For [Y]’s sake it can only be hoped that he does so.

Section 60CC (3)(m) any other fact or circumstance that the Court thinks is relevant.

1. The Independent Children’s Lawyer’s proposal is for the Mother to have sole parental responsibility for both [X] and [Y], for [X] and [Y] to live with the Mother, for [X] to spend time with the Father in accordance with her wishes and for [Y] to spend time with the Father four times per year for two hours supervised at the Berry Street Contact Centre in Town A.

2. It was submitted on behalf of the Independent Children’s Lawyer that the Father’s ongoing issues with illicit drug abuse, his mental health issues, his emotional dysregulation, his active dislike of the Mother, his rejection of [X] and his reliance upon [Y] for his emotional support all create a level of risk such that any time [Y] spends with the Father must be within the constraints of a formal contact centre setting.

3. It is the submission of the Independent Children’s Lawyer that whilst Ms R was an impressive witness, such is the Independent Children’s Lawyer’s concern as to the level of risk that the Father poses to [Y], it is not appropriate that there be a lay or professional supervisor of [Y]’s time with the Father outside of the contact centre.

Presumption of Equal Shared Parental Responsibility

1. Section 61DA of the Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

2. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for that child. 

3. In this matter the Father is seeking that he and the Mother have equal shared parental responsibility for [Y]. The Mother seeks orders that she have sole parental responsibility for him.

4. It is the Father’s evidence that he wishes to be actively involved in [Y]’s life and contribute to the important decisions that are made for him.

5. It is submitted on behalf of the Mother that not only is there a history of violence perpetrated by the Father, but more relevantly, his anger and hatred of her is such that it would be impossible for she and the Father to communicate in any way in relation to [Y] and his best interests.

6. The Independent Children’s Lawyer supports orders being made for the Mother to have sole parental responsibility for [Y].

7. Given the existing intervention orders made for the protection of the Mother, the complete lack of any form of communication between the parties as well as the reality that the Father, on any proposal, is going to have very limited time with [Y] and minimal involvement in his life, it is very apparent that it is not in [Y]’s best interests that orders be made for the parents to have equal shared parental responsibility.

8. Accordingly, an order will be made for the Mother to have sole parental responsibility for both [X] and [Y].

Consideration of Equal Time or Substantial and Significant Time

1. Where parties have equal shared parental responsibility for a child, section 65DAA of the Act requires the court to consider the child spending equal time or substantial and significant time with each parent.

2. The Full Court in the matter of Goode & Goode [2006] FamCA 1346 held that even where the Court does not make an order for equal shared parental responsibility, it should still consider whether equal time or substantial and significant time is in the child’s best interests.

3. Neither party has put forward proposals for [Y] to spend equal time or significant and substantial time with the Father.

4. Further, it is clearly apparent that any such order is not in [Y]’s best interests given the identified risks that the Father spending any form of unsupervised time with [Y] would pose.

Conclusion

1. The issue for determination in this matter is what should be the extent of the Father’s supervised time with the parties’ ten year old son [Y] and should that supervision take place solely within the confines of a contact centre or be provided by the Father’s sister Ms R.

2. It is the Mother’s submission, supported by the Independent Children’s Lawyer, that [Y] should only spend time with his father four times per year, for two hours, supervised at the Berry Street Contact Centre in Town A.

3. It is the Mother’s submission, supported by the Independent Children’s Lawyer, that the Father’s long-standing drug addiction issues, his association with criminal activities as a result of his drug issues, the serious assault he suffered in December 2015 that was drug related, his emotional dysregulation to which [Y] is exposed when spending time with his father, concerns as to the Father’s mental health, his poor parenting of [X] in particular, his lack of insight and acceptance of any responsibility for his behaviours and his intense anger and hatred towards the Mother all combine to create a level of risk which can only be managed within the confines and security of a contact centre when the Father is spending time with [Y].

4. The Mother is particularly concerned that such is the level of the Father’s anger and hatred of her, he could physically harm [Y] in an endeavour to get back at her.

5. The Father is adamant in his denial that he would ever harm [Y] or that he poses any risk to [Y] if he were to spend time with him.

6. However, the Father’s proposal is for there to be supervision of his time with [Y] which must be seen to be a concession by him that there is some risk to [Y] when spending time with him.

7. It is the Father’s submission that his sister, Ms R, is a suitable supervisor who would ameliorate any concerns the Court would have as to the risk he would pose to [Y]. It is submitted on behalf of the Father that Ms R is suitable to supervise her time with [Y] given she was deemed to be a suitable supervisor by DHHS during the period that [Y] was subject to the Family Preservation Order.

1. Ms R gave evidence at the final hearing. As has been noted previously in this judgment, Ms R presented as an honest, straight-shooting, child-focussed witness who would place [Y]’s best interests at the forefront of her thinking.

2. The evidence of Ms J is that such is the level of risk that the Father poses at this time, the issue is not the capacity of Ms R or even an external professional supervisor to supervise the Father, but rather that the additional security that a contact centre provides is needed at this time to address the risk factors that the Father poses.

3. The Mother in this matter impressed as a caring and concerned parent whose sole focus is the best interests of [Y]. Whilst she describes the Father as not being easy to like, the tenor of her evidence was such that it is apparent she shows no malice towards the Father or an intent to limit or interfere with [Y]’s relationship with him. Rather, the Mother expresses a genuine concern that the Father would be a risk to [Y] if he were to spend time with [Y] away from a contact centre because of the myriad of issues previously canvassed in this judgment and because of her real concern that the Father may harm [Y] given his hatred of her.

4. The Father was not an impressive witness. His anger and hatred of the Mother was palpable at times as was his blaming of her for all his current issues.

5. The Father evidences no acceptance of any responsibility for the current lack of relationship that he has with Ms C and [X]. He exhibits no understanding of how his behaviours, including his rejection of [X], his drug use, the state that he left their home in and his denigration of the Mother impacts on them and their relationship with him.

6. The Independent Children’s Lawyer joins the Mother in seeking orders that [Y]’s time with the Father be four times per year only at the Town A contact centre on the basis that the level of risk to [Y] if he were to otherwise spend time with the Father is too great.

7. There is no doubt that [Y] loves his father and wishes to spend time with him. Similarly, there is no doubt that the Father loves [Y] and also wants to be able to spend time with him.

8. The concerns as to the Father and his behaviours identified by the Mother, the Independent Children’s Lawyer and Ms J which are set out in paragraph (144) of this judgment are overwhelmingly supported by the evidence before the Court. The Court is therefore satisfied that the risk the Father poses to [Y] because of those behaviours can only be ameliorated if time between [Y] and the Father takes place within the confines of a contact centre.

9. In so saying, there is no adverse inference made in relation to the Father’s sister, Ms R. As noted in this judgment, she is a straight-shooting, honest and child-focussed aunt. However, as was noted by Ms J, the issue in this case is not the capacity of the supervisor but rather the reality that the level of risk is such that at this time, [Y]’s time with his father needs to take place within the security of a formal contact centre.

10. Whilst [Y] wishes to spend regular time with the Father, and clearly more than four times per year, there is no capacity for any contact centre to provide long term supervised time other than four times per year.

11. The very limited time that [Y] will spend with the Father will not enable [Y] to maintain a meaningful relationship with the Father. Section 60CC(2A) of the Act requires the Court to give greater weight to the necessity to protect a child from harm than ensuring the child has a meaningful relationship with both of the child’s parents when determining what is in a child’s best interests. In this matter, such is the level of risk the Father poses to [Y] at this time, [Y]’s safety must be given paramountcy.

12. Accordingly, orders will be made for the Mother to have sole parental responsibility for both [X] and [Y], for [X] to spend time with the Father in accordance with her wishes and for [Y] to spend time with his father four times each year for two hours at Berry Street Contact Centre in Town A. Orders will also be made allowing the Father to send cards, gifts and letters to [X] and [Y] to an address nominated by the Mother.

13. Enquiries by the Independent Children’s Lawyer of Berry Street Contact Centre, Town A, reveal that the practice of that centre is for that time to take place during each of the school holidays and that arrangements are to be made for a date and time no less than two weeks before each of the school holidays.

14. There is no doubt the Father will be very distressed by this decision. His capacity to have greater involvement in [Y]’s life rests entirely with him. If he is prepared to undertake the intense counselling suggested by Ms J to address the issues that had been set out in detail in this judgment, including developing insight into the impact of his own behaviours on his relationship with his children, addressing his illicit drug addiction and developing the capacity to focus on the needs of his children over those of himself, then that greater involvement will be possible.

I certify that the preceding one hundred and sixty two (162) paragraphs are a true copy of the reasons for judgment of Judge Bender

Date:              5 September 2018