COLDBECK & TANNER

[2020] FCCA 2360

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLDBECK & TANNER [2020] FCCA 2360

Catchwords:
FAMILY LAW – Parenting dispute – four children all of whom present as having significant difficulties – father seeking that one child live with him in Queensland – mother and independent children’s lawyer seeking that children remain together with mother in Victoria – whether father’s time with children should be significantly curtailed – fathers history of family violence and lack of insight into its effects – children exposed to family violence during, and after, the parents relationship – presumption of equal shared parental responsibility clearly rebutted – orders made as sought by the independent children’s lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA, 68R

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant: MS COLDBECK

Respondent: MR TANNER

File Number: DGC 1284 of 2019

Judgment of: Judge Burchardt

Hearing dates: 30 & 31 July 2020

Date of Last Submission: 31 July 2020

Delivered at: Dandenong

Delivered on: 4 September 2020

REPRESENTATION

Counsel for the Applicant: Ms Monteiro

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondent: Ms Johnson

Solicitors for the Respondent:	Zenith Lawyers And Consultants
Counsel for the Independent Children's Lawyer:	Ms Elleray
Solicitors for the Independent Children's Lawyer:	Bentleigh Family Lawyers

ORDERS

1. That all previous parenting Orders be discharged.

2. The Mother have Sole Parental Responsibility for the children: X (“X”) born in 2006, Y (“Y”) born in 2007, Z (“Z”) born in 2008 and W (“W”) born in 2009.

3. The Mother shall keep the Father informed of any significant decision regarding the children’s health, education or religion by way of email or by telephone communication including decision making for any urgent health issues affecting the children which require immediate hospitalisation/medical treatment and or surgical intervention.

4. The children live with the Mother.

5. The child X spends time and communicate with the Father in accordance with her wishes.

6. The children Y, Z and W spend time with the Father twice a year in Victoria from 10.00am until 4.00pm on dates to be agreed between the parties in writing.

7. For the purposes of changeover in paragraph 6, the paternal grandmother, Ms B, (“paternal grandmother”) collect and drop off the children at C Shopping Centre on D Street in Suburb E at the commencement and conclusion of time, unless otherwise agreed in writing by email.

8. For the purposes of spend time arrangements referred to in paragraph 6, the Mother shall provide the paternal grandmother with medications for Y, Z and W, at changeover and the Father shall administer the children’s medication as prescribed.

9. The Father communicate with the children Y, Z and W by telephone as follows (all times in Order 9 are Brisbane times):

   (a)Between 6.00pm and 7.00pm, the day prior to the children spending time with the Father;

   (b)Between 6.00pm and 7.00pm on the children’s and the Father’s birthdays and

   (c)Between 6.00pm and 7.00pm on Christmas day.

10. For the purposes of paragraph 7:

    (a)the Father shall initiate the telephone calls by placing a call directly to the mobile telephone number: ... and such telephone times referred to shall be the times where the children live;

    (b)The Father shall communicate with the children in a respectful and  appropriate manner so that the children are not emotionally distressed or distraught during such telephone communication;

    (c)The Father be restrained from denigrating the Mother or X during the telephone communication and 

    (d)The Mother shall notify the Father by email within 48 hours of any change to the mobile number.

11. The Father be permitted to send cards, letters and presents to the children and the Mother be permitted to peruse such gifts and correspondence for suitability before passing them on to the children.

12. The children be permitted to send cards or letters to the Father not more than once a month.

13. Each party immediately inform the other of any serious illness, injury or accident suffered by the children whilst in their care and forthwith provide the other with copies of any medical certificates or reports, upon receipt.

14. The father, his servants and/or agents be restrained by injunction from bringing the children into contact with Ms F.

15. The father, his servants and/or agents be restrained by injunction from removing the children from the State in which they live with their Mother.

16. The parties, their servants and/or agents be restrained by injunction from:

    (a)Denigrating the other party or their family members in the presence of or within hearing of the children and from allowing anyone else to do so in their presence or within their hearing;

    (b)Exposing the children to any parental conflict or family violence and

    (c)Discussing these proceedings with the children or within their hearing and from allowing any other person to do so.

17. The Mother shall engage herself and the children with Family Therapy/Counsellor (as referred to by G Counselling Service, Suburb E, ph: ...) and follow all recommendations of the Therapist/Counsellor, including any recommendations for the children X, W and Z to engage in individual counselling. The Mother be permitted to provide the Family Therapist/Counsellor with a copy of the Family Report prepared by Ms H dated 2 March 2020.

18. The Mother ensure that the child Y continues to attend upon his counsellor for individual counselling.

19. The parties keep each informed of their email addresses and notify the other of any changes within 7 days.

20. That pursuant to Sections 62B and 65DA of the Family Law Act 1975 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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1284 of 2019

MS COLDBECK

Applicant

And

MR TANNER

Respondent

REASONS FOR JUDGMENT

Introductory

1. This matter concerns the best interests of no fewer than four children aged from 14 to 11, all of whom are to a greater degree presently troubled and/or have significant health/intellectual disability difficulties.  The applicant mother seeks that X, born in 2006, live with her and spend time with her father in accordance with her wishes.  She also seeks that Y born in 2007, Z born in 2008 and W born in 2009 live with her and spend relatively limited time with their father, who lives in Brisbane, as and when he can come to Melbourne.

2. The respondent father seeks that Y live with him and spend time with the mother in Melbourne and that Z and W spend time with him.  Also, in the ultimate he appears to consent to the proposed order as to X, albeit with reluctance. 

3. The independent children's lawyer supports the mother’s positon and for the reasons that follow I will be making the orders sought by the independent children's lawyer. 

Agreed or Uncontroversial Matters

1. The mother was born in 1982 in England.  There is no clear indication so far as I can see as to when she came to Australia but I get the impression she has lived here from an early age.  The father was born in 1981, in Suburb J, and his mother and all close family members apart from his own father, who lives in Queensland, continue to live in the Melbourne region.

2. The mother has two children to an earlier relationship, namely Mr K born in 2000 and Ms L born in 2001.  Ms L lives with the mother and Mr K lives independently or with his father.

3. The relationship between the parents commenced in 2003 and ended with separation in 2010.  Thereafter, both parents have repartnered.  The father asserts, somewhat luridly in my view, that the mother has had multiple partners but for these purposes, it is deficient to note that she was in a relationship with Mr M for some years until separation in May 2018.  The mother repartnered with Mr N in 2018 but that relationship came to an end in the early months of this year.  She has already repartnered again with another person to whom I shall come.  It is apparent on this track record that the mother is only rarely not in a relationship.

4. The father has been in a relationship with Ms F for five years.  They have lived in a four bedroom house in Queensland where the father is in gainful employment since 2018 to which I shall return.

5. Following separation in 2010 the children have lived predominately in the care of their mother, albeit that there was a period of shared care for some 12 to 18 months after the mother returned to Victoria from Queensland where she have previously been living (the father had been living in Queensland and returned in 2013) from June 2014 onwards.  It then moved to the father spending each alternate weekend with the children until he was jailed in mid-2017.

6. The history of the case is characterised by very substantial numbers of intervention order applications made either by the mother against the father, by the father against the mother, and by various partners and/or against or in favour of various partners and former partners of the parties.

The Parties’ Affidavit Materials

1. The parties have filed a number of affidavits.  Some of what they have to say is set out in the agreed or uncontroversial section immediately above.  I have, of course, read those affidavits carefully and have regard to their content.  I note that the affidavits recount the history of the relationship from the perspective of the two major players and could perhaps fairly be described as a litany of mutual complaint and self-exculpation.  On any view of the matter, there have been serious allegations of family violence made by the mother against the father, largely responded to with denials or minimisation on the father’s part.  There have been an extraordinary number of intervention order applications and indeed the husband has been convicted of a number of breaches and indeed even been incarcerated as a result.  In the particular circumstances of this case, in my view it is more profitable to concentrate on what the parties actually said at Court.

The Independent Reports

Department of Health and Human Services

1. The section 67Z response of the department dated 27 July 2020 reveals that there have been 19 reports to child protection since 2014 of which two led to investigations in 2015 and 2017.  The report relevantly asserts under the heading Summary of Child Protection History:

   The parents Mr Tanner and Ms Coldbeck appear to have an acrimonious relationship, concerns were in relation to allegations by both parents of physical harm being perpetrated against the children when in the care of the other parent, verbal argument occurring during access hand over, threat to harm the children, Mr Tanner applying for an intervention order protecting the children against Ms Coldbeck, inappropriate physical discipline by Mr Tanner, which resulted in W reportedly sustaining an injury, Z and W reportedly stating that they did not want to have contact with Mr Tanner and Mr Tanner breaching the intervention order.  Y engaging in self harming behaviours and being threatening and aggressive towards his siblings including threatening to stab and kill them.

2. The report went on to summarise current protective concerns and outcome.  The report noted that there was a full intervention order in place protecting the mother and children against the father and that the current report concerned the health and wellbeing of the children.  The report went on to state relevantly:

   Appropriate follow up occurred it was ascertained there is have been 24 family violence reports since 2009, the mother Ms Coldbeck has been the AFM on 22 occasions.  RESP father Mr Tanner, except where Ms Coldbeck was the AFM against other parties.  The most recent report occurred in March 2020, concerns have been in relation to breach of intervention orders, verbal abuse, Mr Tanner perpetrating assault towards Ms Coldbeck dislocating her two fingers causing injury, one of the children disclosed Mr Tanner had smashed the child’s head against the cupboard.  The child also had bruises on his leg from ‘pinching, the father threats to kill the mother and non-violent, non-abusive incident. 

   Follow up could not occur with school for a profile on Z and W as a school could not be located near the family home, for the children. 

   A profile was gathered for Y and X, who are reported to be low academically.  Both children are supported at school, with programs.  School have no concerns for the wellbeing of the children.

3. The report went on to note that there was ongoing conflict between the parents and that the children had likely been exposed to this but that this Court was the best place to address those concerns.  The report noted the children were not considered to be at risk of harm that would warrant child protection involvement.

4. It should be noted that the significance of this report for present purposes in my view is not so much the serious allegations made against each of the parents, which one would strongly suspect emanate from the other parent in each instance.  What is particularly concerning is the unremitting degree of hostility between the parents reflected in their mutual reports to the department.  This is plainly a seriously conflictual relationship.

The Section 11F Report

1. The 11F report by consultant Ms P was the subject of an oral report on 12 June 2019, subsequently summarised in writing.  The report noted that the father was seeking time with the children in school holidays and special occasions when he was able to get time off work together with telephone times three times a week and the mother’s countervailing position that the father should complete a men’s behaviour change program and access supports before there was any question of spending time.  The report noted the mother’s allegations of significant family violence and the father’s denial, although the father conceded the relationship was volatile, and there was verbal abuse reciprocally between the parties.

2. The report notes a number of past intervention orders and a then current intervention order in place from 24 October 2018 until 23 October 2019 and that there was also a current intervention order against the father’s partner Ms F following an incident in December 2018 that involved X.  The report noted on pages 3, to 4 relevantly:

   The parties have been separated for a number of years.  (Disputed by the parties that it was in 2010 or 2012).  However since this time it is evident that there have been a number of relocations between Victoria and Queensland and sporadic contact between the children and father without any formal parenting order being in place.  It appears there have been ongoing conflict between the parties, which the children have continued to have been exposed to over the years.  Both parties are in new relationships and the father resided in Queensland.

   The mother has alleged serious past history of family violence and a continuation of this post separation with her genuine concerns that the father may harm her or the children in the future.  The father appeared open and candid about his history with the mother and via the criminal system.  He admitted in the past having anger issues which had led him to police involvement.  He however maintained that since completing a number of courses when he did whilst subject to a Community Corrections Order in 2017 he has learnt how to manage his emotions better and also how his behaviour has impacted on the children.  During the assessment the father also raised past concerns regarding the mother’s ex-partner’s violent behaviour and what the children had been exposed to and that her ex-partner had physical harmed Y.

   All four children have vulnerabilities, not just because of their ages, but other cognitive, emotional and behavioural issues.  Z and W bother have intellectual disabilities and attend a special school.  Y has a diagnosis of Attention Deficit Hyperactive Disorder (ADHD), Oppositional Defiance Disorder (ODD) and has had a past incident of self-harm.  The mother reported current behavioural issues with Y, in particular becoming physical towards his siblings.  She said that he will commence seeing a psychologist from Q Psychology.  Although X has not been diagnosed with any issues, the mother reported that she is being assessed for learning difficulties at school.  Y, Z and W are currently on prescribed Medication to manage their behaviours and have a Paediatrician involved.  The father expressed concerns that he has no information on the children’s schooling, medical concerns or any reports.  He stated he believed that the children did not need to be medicated and that this only impacted negatively on their daily functioning (i.e. presenting as drowsy).

3. The report noted further allegations that the parents made against one another, including the mother’s alleged monitoring or ending of phone calls.  Following interviews of the children it was noted that:

   All the children reported a positive home life with the mother and her current partner Mr N.  Z and W reported that they felt sad at times at home because Y had called them names or physically hurt them (pinched them).  They stated when this occurred they told the mother who usually told him off.  All the children reported feeling safe and happy at home.  Y recalled the events in April this year and stated that he wanted to live with his father.  When asked why this was he stated because he missed him and wanted to see him more.  Y stated that he wished he father lived closer so he could see more of him. 

   All the children reported an overall positive relationship with their father and they did a lot of positive things together with him.  None of the children raised any safety concerns when in his care or identified any inappropriate discussion during telephone calls and all children stated he usually asked what they had been doing, how was school.  The children expressed no concerns in seeing the father.  W advised the writer that he would ask his mother if he could see his father then he would let them know. 

   Three of the children reported concerns in regards to the father’s girlfriend, Ms F and expressed that at time she can be mean towards them.  X in particular recalled the incident that occurred in December 2018 that led to the IVO against the partner.  She stated that he had called her a ‘Suburb E slut’ and had thrown a glass at her father and it had hit her in the foot.  X stated that she had not spoken to Ms F since the incident and did not wish to at this time.

4. The report went on to recommend that the children live with the mother and have telephone times, with some privacy, three times a week.  The report recommended that further information be obtained.

The Family Report

1. The family report commenced by noting the outline of the current arrangements, relevant family background and the history of the dispute.  I note that the history of the matter included a recovery order made on 1 May 2019 in relation to Y who had been over held by the father.  The report went on to note the various risk factors, including the mother’s assertions of the father’s historical family violence and the father’s countervailing assertion that the mother had used controlling behaviours towards him.  During the interview with the mother Ms H noted that X had asked her father to help with paying for her braces and he has said no telling her the Court said he did not have to pay for the children anymore (paragraph 28).  The report noted self-harming behaviour by Y when he was returned after the recovery order and also when his father was incarcerated (paragraph 29).  The reported noted that Z as an 11 year old was reported to have a five year old’s mind (paragraph 30).  The report noted that W was described by the Mother as “one of the angriest little people I have ever met” (paragraph 31).

1. The report further noted that the mother is concerned regarding the father’s telephone calls in which he had reported told the children they would need to choose who they would want to live with and a severe negative reaction by W (“I hate my fucking life”) (paragraph 32).  The report noted at paragraph 33 that the father was reportedly against medicating the children and had told them how to avoid taking their medicines (paragraph 33) and that Y was refusing to take his afternoon dose of medication at school as a result.  Tellingly, at paragraph 34 the report noted:

   When asked about her proposal, Ms Coldbeck stated that, “from a mum’s point of view.” the children should not spend any time with their father.  She stated, “I can’t stop any of the abuse.”

2. The mother was agreeable to the children receiving cards or letters from the father and that if there was any time, it should be supervised (paragraph 34).

3. The report noted that the father presented as intimidating at times during the interview (paragraph 35).  The father reported he had relocated to Brisbane in June 2018 in order to move away from the mother, rents a four bedroom house with Ms F and that he works in the manufacturing industry from Monday to Friday and privately on Sundays.  He has been in a relationship with Ms F for four years (paragraph 36).

4. The report noted that X has not wanted to speak to the father on the phone since April 2019 and that he sometimes hears X in the background when phones the children calling him a fat cunt, telling him she hates him, that she is glad he is out of her life (paragraph 37).  At paragraph 38 the report dealt with Y and noted:

   Mr Tanner reported that he had been made aware of Y’s self-harming behaviour and stated that Ms Coldbeck blames him for this.  He reported that he has seen photos of the injuries and it looks like Y had simply scratched himself on a stick.

5. The father described Z as his little angel and he was not concerned regarding reports that Z sometimes bangs her head as he had been told by friends that this could be a comfort thing (paragraph 39).

6. The father noted that W was a very stubborn kid and that he did not have a good relationship with W and believed that this was because Ms Coldbeck had had an affair with her former partner Mr R (the father of Mr K and Ms L), who he believed to be the biological father of W (paragraph 40).  At paragraph 43 the report noted:

   In regard to ADHD medication for the children, Mr Tanner reported that the paediatrician had told him that he did not have to give it to them and that it would not hurt them not to have it.  Mr Tanner also expressed a concern that the children are prescribed sleeping tablets.

7. The father reported that he had undertaken several courses, including Dads Do Matter, and mental health programs with S Counselling Service and an anger management course twice (paragraph 44).

8. An interview with Mr N noted the deterioration in the relationship between X and her father (paragraph 48).  At paragraph 49 when asked about Y Mr N stated, “He loved his dad.  He wants to see his dad more but he doesn’t want to live with his dad.”

9. At paragraph 50 the report noted:

   Mr N reported that Z also loves her father and cannot wait to speak with him on the phone.  Stated, however, that she is sometimes affected by the phone calls and although she enjoys speaking with her father, she sometimes cries when she gets off the phone.

10. At paragraph 51 relevantly Mr N stated that W usually only talks for a couple of seconds only on the phone with his father (paragraph 51).  At paragraph 54 the report noted that it was Mr N’s opinion, the children were aware of too much regarding the Family Court matter and he has heard the children say that their father told them when they are speaking to “the lady from the Court” they will have to choose who they want to live with (paragraph 54).

11. An interview with the paternal grandmother Ms B was, in my view, unremarkable in the circumstances, save that I note she was also opposed to the children taking medication for ADHD (paragraph 62).

12. The report then went on to traverse the allegations of family violence.  It traversed an allegation when the parties were living in Queensland and the father allegedly grabbed a knife and ripped the mother’s skirt with it and was assaulted, the father receiving a good behaviour bond for that conduct (paragraph 64).  The mother also reported the most recent IVO had been varied to become indefinite (paragraph 65).  It is perhaps sufficient to note that the report went on to detail a number of assaults, including breaking her fingers while she was pregnant with W (paragraph 67). 

13. At paragraph 76 the father acknowledged “that they used to argue constantly about the children being in child care twelve hours a day when Ms Coldbeck was not working”.  In regard to finances, Mr Tanner stated, “I was very controlling, I deal with the money, I know where every cent goes.” 

14. The father dismissed the significance of the current indefinite IVO because it was easy to obtain and he had not bothered fighting it (paragraph 77). 

15. The father acknowledged he assaulted Mr M, the mother’s former partner (paragraph 78), and has been incarcerated for three months following that assault.

16. The father detailed assaults by Mr M on Y (paragraph 78).

17. The report went on to traverse allegations of child abuse.  At paragraph 86 the father denied picking W up by the neck and throwing him against a wall, although he might have yelled at W or grabbed him by the shirt.  He acknowledged that he used to hit the children on the bottom with a wooden spoon.

18. At paragraph 87 the report noted:

    Mr Tanner acknowledged an incident during the Christmas period 2018 when the children were spending time with him Ms F in Town T.  He reported that Ms F did not like the clothes that X was wearing and told her, “you look like a Suburb E slut.”  He stated that he objected to Ms F speaking to X this way and Ms F made a movement towards him with her drink, which then fell out of the hand and X got hit in the leg with some broken glass.  Mr Tanner stated that he then collected all three children and left.

19. It was noted that an intervention order was placed on Ms F naming the father and the children as the affected family members as a result, due to expire in 24 March 2020. 

20. The report then moved to examine the children and their relationships.  X’s position was regrettably straight forward.  At paragraph 102 the report noted:

    When asked about her relationship with her father, X stated, “Dad’s a dickhead, a jerk, he is not a Dad.”  When asked why she had formed this opinion, X stated, “if he was a bloody Dad, he would be paying for stuff.”  She provided an example saying that she requires braces which her mother cannot afford.  She reported that her father has told her he would pay something towards her braces, however, “he is buying jet skis, going on a cruise.”  X stated, “I turned 13 – a teenager and he didn’t give two shits.”  This made X feel angry and upset.

21. I note that paragraph 105 the report recorded:

    In response to what makes her feel scared, X replied her father’s attitude and his yelling.  She recalled that her father once, “grabbed W by the t-shirt or neck and put him against a cupboard.”  She stated, “my Dad is just abusive, he just hits, he doesn’t talk.”

22. X also traversed the incident where she was called a Suburb E slut (paragraph 105).  X had a number of other complaints about her father’s past conduct and adamantly refused to see her father.

23. Y’s interview disclosed relevantly about his father (paragraph 112):

    He understands more about me and what I like than Mum does.  I wish he could visit more than two days.  I wish I could visit in school holidays but make sure I come back.  I want to live with my Dad and my Mum but don’t want to leave my friends and make new friends.

24. When asked about his relationship with Ms F, Y stated, “I wish we could see each other.”

25. Y was sad about the limited time he spent with his father (112).  Nonetheless, when asked about his worries Y was worried about leaving his friends and having to go live up with his father in Queensland (paragraph 113).

26. Z reported that the relationship with her mother was good (paragraph 117).  She thought her father was funny (paragraph 117).  When asked about her worries she did not like her parents arguing as she had experienced in the past and was worried “when Dad talks about Court” and that he said, “You will be talking to people, sometimes if you want to live with me, tell them.” (paragraph 118).

27. W liked his mother stating that she was nice.  He also said Dad was nice and did not really yell at them.  He stated that Ms F was always angry at them but liked Mr N (paragraph 122).  At paragraph 123 the report noted:

    When asked about his worries, W stated, “missing Dad.  Sometimes I get upset because I don’t get to see Dad.”  W also stated, “I get upset because Dad is being rude to me sometimes – like yelling at me and that.  But sometimes he’s nice and doesn’t yell”.  When his father is yelling, W reported that it makes him feel upset and sad.

28. The observation with Mr N and the mother was unremarkable.  The observation of Y, Z and W with the father likewise was unremarkable. 

29. The report noted collateral documentation from the Department of Human Services, which it is not necessary to re-rehearse.  Queensland police documents showed that there were three domestic violence orders dated 13 February 2012 expired February 2013, 4 February 2013 expired 5 August 2013, 5 August 2013 expired 6 August 2013 taken out by the mother against the father.

30. Documents from the Victorian LEAP records show that the husband had been convicted for contravening an intervention order on 21 May 2018, 8 September 2017, 15 May 2017 and 20 February 2017.  The report noted a conviction for unlawful assault also.

31. The report noted a report from Dr U to which it will be necessary to return.

32. The evaluation section at paragraphs 145 to 164 is lengthy and I have regard to all of it although I do not propose to traverse it in detail.  Ms H noted the troubled relationship between X and her father (paragraph 148).

33. In respect of Y, paragraph 149 of the report stated:

    Y is now firm in his statements that, although he wants to spend more time with his father, he does not want to live with him.

34. The report noted Z’s diagnosis with an intellectual disability and a diagnosis of ADHD (paragraph 150).  It noted that she was concerned when her father talks to her about Court.  At paragraph 150 the report observed:

    Z was also clear about wanting to spend some extra time with her father but not overnight time.  Z is a sensitive child who is easily upset.  This, combined with her delayed development, makes her a vulnerable child, particularly to the manipulation of others.

35. At paragraph 151 the report noted W’s development being compromised by his diagnosis of a mild intellectual disability and ADHD and his somewhat troubled circumstances. 

36. The Court noted the history of allegations of serious family violence and the father’s denials, particularly to having assaulted W (paragraph 153).  Perhaps it is sufficient to concentrate on the conclusion at paragraphs 163 - 164 where the report stated:

    The physical and psychological of X, Y, Z and W is of paramount importance.  There is very likely a risk to the children of continued exposure to family violence, (including derogatory comments about their mother, emotional manipulation, family violence between Mr Tanner and Ms F, physical punishment), should they spend significant periods of unsupervised time in their father’s care.  Therefore, it is recommended the time the children spend with their father is limited. If Ms Coldbeck’s proposal is adopted, and the children do not spend any time with their father, there are a couple of potential negative outcomes.  The children would miss having their father in their lives and would grieve for him.  Y in particular might blame his mother for not spending time with his father at all and his aggression and oppositional behaviour at home and at school might increase.  The risk of self-harm might also increase.  Y, Z and W want to spend time with their father.  X should be given the option and should not be forced. If time is limited to twice a year, this limits the opportunities for Mr Tanner to expose the children to adult matters such as child support and family court matters, to divide them by expressing negative opinions about other siblings to them, and to generally manipulate their thoughts and feelings.  The children would need to be supported and have this explained by a family therapist with experience in family violence issues.  It is further recommended the children spend time on the phone with their father the day before they are schedule to see him, in order to reconnect and discuss plans for the following day. 

    In addition, it is recommended that Mr Tanner be permitted to call the children on their birthdays at a suitable time.  It is further recommended he be permitted to send them gifts and/or cards on their birthdays, Christmas and other special occasions.  It is recommended that Ms Coldbeck be permitted to peruse any cards or letters from Mr Tanner for suitability before passing them on to the children.  It is recommended that the children be permitted to send cards or letters to their father not more than once a month.

37. The report went on to recommend the children living with the mother and spending time with their father twice a year in Victoria with telephone time for the three younger children the day before.  The report recommended family therapy for the mother and the children and that Y continue with individual counselling

The Submissions made in Evidence Given at Court

What follows is taken from my notes.

The Opening and Evidence of the Mother

1. Counsel for the mother opened the matter with an introduction to the relationship which was said to have commenced in 2004 and ended in 2011.  Counsel pointed to the father’s lack of regard for the diagnosis of the children’s difficulties and the violence alleged to have taken place in the presence of the children.  There have been intervention orders in two States, and a breach of intervention order led to a criminal conviction.  Counsel traversed the incident with the pocket knife when the mother’s skirt was ripped, the names she was allegedly called, and the occasion when it was alleged she was pinned to the wall and the father put his hand up her shorts.  The husband had assaulted her former partner. 

2. The father blames the mother for the intervention orders and his not seeing the children.  The father has no insight and has not seen the children since September 2019.  The father questions the children about the court and the orders to be made and denigrates X and the mother.  He also encouraged the children not to take their medicine.  Time should be restricted to two times per year and the mother seeks sole parental responsibility.

3. The mother was called and adopted her trial affidavit as true and correct.  She also gave an update on recent events.  That morning, she had received a phone call and message.  X had been added to the father’s Snapchat.  This took place at about 9.30 am and was in contravention of the intervention order.

4. Under cross-examination by counsel for the father, the mother said she understood that the father’s position was that X’s time should be as requested by her.  She confirmed that she seeks time take place in Victoria when borders reopen, and that telephone time should take place once per week between 6 and 7 pm Brisbane time.  She understood that the father was proposing that there be precise orders to limit any discussion of Court matters during these telephone calls.  The mother confirmed her description of Y at paragraph 29 of the family report and agreed that there was a good relationship between the father and Z.  She also agreed that the siblings were not close and had not been so for the last year and a half.  She conceded that Y loves his father and he did so at the time of the family report.  She also conceded that at the time of the family report Z could not wait to speak to her father.

5. When questioned about X’s reporting in the family report, the mother said that the father had refused to pay for X’s braces.  Her opinion about the father had changed. 

6. The mother did not agree that she had told Y about child support (paragraph 114 of the family report).  The father had brought up child support on social media when Y asked him to pay for a camp.  She has said to Y that if the father paid child support she would get Y (something - my notes do not reveal what it was).  She appreciated that saying this would have put Y in the middle.  She said she had spoken about it in the past, but not for a while.  She went on to say that she regretted this, an admission that I think did her credit.  She said that Y had said he wanted more time with his father and in school holidays.

7. The mother said she ceased Instagram time under the intervention order because the father was talking about child support with Y.  The mother conceded that Z feels warmly towards her father.  She did not, however, agree that Z says phone calls are good, as reported in paragraph 119 of the family report, although she then went on to accept that Z had said this.  With Z’s mental wellbeing, “she says one thing and two minutes later it is completely different”. 

8. The mother agreed with paragraph 113 of the family report about Y’s worry about living in Queensland.

9. She also agreed that W had said he wished to see his dad and mum and wanted to see his father on holidays because, at the moment, he did not get to see him at all. 

10. The mother said the children have intellectual disabilities and can change from day to day.  “The children are messed up at the moment and can’t wait for the assistance of psychological treatment.”

11. The mother was cross-examined about paragraph 129 of the family report (the observation with the father).  She said that this happened.  The children had not seen their dad for quite some time and were very pleased to see him.  It was a good response.  She also accepted that when the children were due to leave, they all appeared to want to spend longer with him (paragraph 132 of the report).  When it was put to her that the limited time she was proposing was detrimental, the mother did not agree.  She said her proposal was a good proposal.  When the father speaks to the children, there is a lot of family violence.  Less time will help the children.  When it was put that if there were specific orders to restrain the father’s conduct on the phone during phone time, the mother said it was still opposed.  She said she has an intervention order in place and he breaches them.  She does not believe the father.

12. When it was put to her that in the majority of breaches she had contacted the police, the mother said she reports what she had been advised by all professionals.  There is violence, name calling and screaming at her.

13. Counsel cross-examined about the fact that the father had been arrested during the family report interview.  The mother first said she was not sure.  She said that she did not advise the police of the interview with the family consultant.  She went on to say, “I’m not sure how the police were involved, but it was not from me.”  She said she was telling the truth and had not contacted the police.  It was put to her that the same thing had happened on Father’s Day and the father was arrested.  The mother conceded this and said she had told the police where the father was.  She had advised the police about the times with the father and asked them not to arrest him while the children were there.  On Father’s Day, she had asked them not to do it while the father was with the children.  She went on to say that if the father was having time with the children, she was not going to interfere with the police.

14. The mother said that, originally, time was 50/50.  The father’s family live in Melbourne, but the children spend no time with his family.  When it was put to her that the paternal grandmother had asked to spend time with the children and had been refused, the mother agreed.  They had not seen her for seven months.  The children need stability.  At one point, the children had a good relationship with their paternal grandmother.  She will see the children when the father sees them.  She had been to mediation with the grandmother, who had said she would back away.  The mother appeared to suggest the grandmother had been insufficiently consistent in her desire to see the children.   She had said, “Wait till court and see what goes from there.”  She complained that the grandmother does not medicate the children.

1. The mother conceded that the father has a four-bedroom home.  She does not want the children near Ms F.  The children say they do not want to be in Ms F’s presence.  She did not accept that it should be more than two days per year of seeing the father.

2. Counsel put that the father took issue with her care of the children.  It was put, that she does not cook and care for them properly. The mother said this was incorrect.  She has an almost 20 year old child who will look after the children, but they are never at home on their own.

3. The mother was cross-examined about her relationship with Mr M.  She conceded that the children had been subject to emotional violence by Mr M.  She was with him for five years.  She denied that Mr M had been violent to her.

4. She is no longer in a relationship with Mr N.  She has a boyfriend she recently started seeing.  She first saw him in June and he has met the children.  He comes to her home, and she and the children go to his home.  She and this gentleman sleep together.  She has known this person for over 21 years and the children knew him before the relationship.  The children get along well with him and go fishing and camping with him.

5. The mother agreed that X should spend time with her father in accordance with her wishes.  She does not want the father messaging unless X contacts him first.  If X does contact him, that would be fine with her.

6. Y does not want to live with his father.  W and Z are the ones with intellectual disabilities.  In the last six to seven months, Y has said he wants to live in Melbourne with his family, friends and school.  She has not cut the father out of the school.  She was ordered to give a letter to the school so he could contact the school, but the father had not done so.  She had given letters to the school and the doctors, but the father had not made contact.

7. It was put to the mother that the father says he was cut out about medication and doctors, and that the paediatrician had said it was not necessary to give Ritalin to Y when he was with him.  The mother said that the father had many conversations about what the medications are and do.  He stopped when he was asked to pay.  She had contacted the father about V School.  He had agreed.  The parental grandmother came with her to look at V School.  The father does not believe that the two children need to go to those schools.  He still thinks they should be at Suburb E Primary.  The father can have his opinion, but she cared for the children.  When it was put to her that she was seeking to wholly exclude the father, the mother’s answer was non-responsive and evasive.  She said she was just doing what was best for the children.  It was put to her that things were okay until last year.  The mother said the 50/50 arrangement in 2014 was something she was forced to do.  The father withheld the children until she signed the paperwork.  They met at a service station and she was told to sign before the children were returned.  She was asked if she would tell the police when the father comes to Melbourne and she said she would not.  When it was put that she had done so on the occasion of the family report, the mother said she did not notify the police.  He was going to be in the Family Court.  She was very surprised when she was notified.

8. Counsel put it that the entry of X on Snapchat was because the father had sent a request to everybody on his phone, and not specifically X.  The mother said that X was quite distraught that she had received this.  When it was put to her that X had added her father on Instagram three weeks ago, the mother said she was not aware of this.  It was just an accident.  X talks to her a lot about her father and had said the day before that she never wanted to see him again.

9. Counsel then cross-examined about the incident between Ms F and X.  This was before the violence.  It was put that X was playing with the father dressed in shorts, and the mother had said Ms F had said inappropriate words to a 12 year old.  The mother agreed that the father had not agreed with that behaviour when he was interviewed for the family report.  The mother denied blocking the father’s number from X.  She was not entirely sure whether the last contact between the father and X was in February 2020.  She agreed that Y loves sport, including AFL.  He also enjoys camping and motorbikes with his father.

10. When cross-examined about Y’s self-harming, the mother said that he had used a stick from a tree to cut himself. 

11. The mother confirmed that Mr M abused the children.  He would call them names.  She had stood up for the father if Mr M belittled him.  She denied that Mr M (Mr M) had thrown Y into the wall and held his neck.  The father took out an intervention order and the Department intervened.  The children were then with the father for the school holidays and he failed to return them.  She has said that both Mr M and Mr Tanner both threatened to kill and harm each other.  It was put to her that she had stood back and allowed this to occur in the presence of the children.  The mother admitted this and said she regretted it.  She said that Mr N was not violent or abusive to her.

12. The mother conceded that the father was very attuned to what Z liked.  She has told Z she is a very special girl and that she is not the same as other children of her age.  Normal children bully her and call her names.  She will be with Z, at least until she leaves school.  She has to shower her because Z does not know how to do it.  Z asked about having children, and she had said it would come.  She told her it would come later.  Z’s IQ had been reassessed from 70 down to 56.  She has practitioners ready for counselling.  She will discuss this with the paediatrician.  Once the NDIS is in place, they will have assistance.  Z had not gone downhill because she was at V School.  She was going great when she first started, but has gone downhill because of problems in the family.  She conceded this assertion was not in her affidavit, but denied making it up on the run.

13. When it was put to her that the father had taken time off when the children were born, the mother said the father was not in full-time work and did not take time off for the children.  It was put that the children were in child care for 12 hours a day from the age of 18 months.  The mother did not agree.  The father did not think he should be paying for child care bills.  She did not have a driver’s licence.  Sometimes they had been to her mother’s.  To take the children to doctors, she would take buses or walk.  She would take taxis for shopping, but sometimes the father would drive.  The taxi to shops is $8 each way.  She walks to Coles, which is next to her house.  There was a 50/50 arrangement for about 18 months.  He would pick the children up from school.

14. When it was put to her that she had caused welfare checks to have been conducted, the mother said she had done this on occasions when the father did not allow phone calls.  He was driving stupidly. 

15. When it was put to her that she was constantly complaining to the police, the mother’s answer was simply non-responsive.  It was put that the father had made a telephone call at the appropriate time on Brisbane time, but outside the court orders, and that she had called the police.  The mother said she had messaged the father with the time.  When it was put that she knew the father was at work, the mother said the children were going to bed.  They go to bed at 7 o’clock every night.  When it was put that the orders were silent as to whether it was Brisbane or Victorian time for telephone calls, the mother agreed, but said she had notified him.  She wanted calls between 6:00pm and 6:45pm Victoria time.  She said she had contacted the police when he had phoned at inappropriate times.  She had been told to go to the police if he was breaching the orders. 

The Mother Under Cross-Examination by Counsel for the Independent Children's Lawyer

1. The mother confirmed that X has a mobile phone, but Y’s has been confiscated.  The father does not know Y’s number, but does know X’s.  Ms L is 19 and a half years old and Mr K is 20 and a half.  Ms L completed the VCE and undertakes occasional work.  Mr K lives in Queensland and works.  There have been several intervention orders against the father.  He had got a three month intervention order against her. 

2. The mother was cross-examined about annexure “-6” to her trial affidavit and, in particular, the incident on page 2 of the annexure detailing an assault in 2012 when the father allegedly threw her up against a wall and tried to cut her singlet up with a knife.  It was put that the father admitted cutting her skirt and the mother said he ripped her skirt. 

3. It was put that in respect of her allegation that the father had broken her fingers there was no medical evidence.  It was put that there was, in fact, medical evidence (medical evidence was subsequently produced and it is clear from exhibit A1 that the mother did suffer a small avulsion fracture of the middle phalanx of her middle finger, together with bruising on her third and fourth finger).  I note that the mother insisted on being X-rayed, despite being advised not to do so as she was pregnant.

4. The mother confirmed that Z, although turning 12 this year, functions as a five year old.  W has special needs, according to Dr U.  She confirmed that when Z gets off the phone she sometimes head bangs to relieve herself.  When it was put that W was aggressive at school, the mother confirmed that he was.  She said he had done really good since the phone calls were cut.  She has had two calls because there were fill-in teachers.  When asked when the children started at V School, the mother said 2018 or might be 2019.  She then confirmed that it was at the start of 2019.  Telephone time ceased in March 2020.

5. When it was put to her about Z menstruating and associated difficulty, and W’s having more medicine and Z, it must be a difficult home life.  The mother said, “Yes, I’m Mum.  It’s my children.”  When asked if she had seen Dr U since the family report interviews, she said she had had contact on the previous Friday.  The time before that was just before the family report.  She sees her every six months.  She had done the paperwork for NDIS and has to hand in a cognitive assessment.  This has been delayed by the COVID emergency.  Z was recently reassessed.  She is waiting for early life health services.  She has spoken with them because of COVID.  Y has refused to speak to early life health services over the phone because he does not know them.  Y has ADHD and ODD and is oppositional.  He was trialled on ADHD medication and it helped a lot.  He was quite compliant.  When he is not on it, he is very challenging.  When it was put that Y had told Dr U he sometimes wants to kill himself, the mother said she was in the room.  When asked how it made her feel, she said it makes her sad.  Y’s self-imposed injury on his leg was a bit of Lego maybe about a year ago.  It happened at primary school.  He kept cutting himself with the corner of the Lego.  She took him to a doctor.  He had also used a branch to cut himself after that.  He was still at primary school.  Y is in year 7 in 2020.  His injury with a stick was this year while he was at BB School.  She was not sure why it occurred.  He had had a phone call with his dad and he told him. 

6. When asked about her relationship with Mr N, she said Mr N was never violent or abusive.  Ms H invited him to attend the interviews.  They are on good terms and he still visits. 

7. She has a new man whom she met in February.  They hit it off from many years ago.  He lives in Suburb CC and has no children.  Mr K lives with his dad.  Ms L lives with her.  There is an intervention order for five years which expires next which she had initiated.  The father had threatened to kill all three of them.  She has not seen Mr K.  She speaks to him.  If X spent with her father in accordance with her wishes, she would intervene if X became upset.  Y does not want to live with his father.  He wants to stay with her.

8. The mother says she gets $50.84 per fortnight in child support.  The father is $8,795 in arrears.  Before it was $50, it was zero.  He was having to pay $2,000 a year, but now it is only $400 per year.  Separation took place in 2012 and the 50/50 agreement was revoked.  The father went to Queensland in 2018.  It went to every second weekend and half school holidays.  The time did not happen in the school holidays.  Then the father moved to Queensland.  The two eldest children have social media skills.  Y is still problematic at school.  The father has played no part in the school, although she had authorised him to call the school, but he had not taken it up.  She has no objection to the father speaking to the principal or assistant principal. She had not called the police because of the recent Snapchat with X.  She said she had been instructed to contact the police.  The mother confirmed that it is the father’s view that Z does not need her medication.  When asked about Z banging her head for comfort, the mother says she sees her all the time.  She only does it if she is anxious.  It is part of self-soothing.  She did not accept that the father had undertaken an anger management course.  There was no proof that he had done so, nor that he had done the Dads Do Matter course.

9. When cross-examined about the maternal grandmother, known as Ms B or Ms B, the mother said that the grandmother lives in Suburb DD.  She was invited to interview by Ms H.  She used to be on better terms with Ms B and they went to mediation in about 2016 to 2017.  The grandmother had fallen out with Mr Tanner.  She has requested to see the children.  One Sunday, she told the mother that she had given the father the children in September 2018.  When Y was taken, she had not notified the mother.  She had said she would back away because she wants to be away from the conflict.

10. The mother was cross-examined about braces and their cost for X.  X had asked the father to help and he said “no”.  He said he did not have to pay for her any more. 

11. The mother conceded that W has mixed emotions about the father, and Y also.  W is at a special school.  What was at paragraph 122 of the family report was the truth. 

12. It was put that telephone time had been problematic.  The mother confirmed that these were oral and not FaceTime.  The children could FaceTime.  They would like to walk around the house during calls, and the mother does not want to be in the photograph.  There is no scope for this in the future.  She has told the father not to discuss Court and he swears at her and the children also.  W gets off the phone and throws the phone down and is very distraught.  The father was meant to have the children in the April school holidays last year for one week, but rejected this and said he would see them at Easter.  The father’s cruise was in early 2020.  He sent photographs of this to the mother and also X.  Sending them to her was a breach of the intervention order.

13. The mother has a family consultant on standby, but this will not start until Court is over.  She has requested counselling.  EE Counselling is involved, then Suburb CC Family Violence and FF Counselling will start once the trial is finished.  The father will not comply with orders.  All the warrants are due to breaches of the intervention order or threats.  The father was jailed on 31 July 2017 for assault and coming within 20 metres of her.  The finger breaking was in August 2009.  The father assaulted her ex-partner in front of all four children.  When asked about the letters she had allegedly sent to the school to assist the father, the mother said her lawyer should have these.  She said she had medical evidence from 2009.  One finger was fractured and one was dislocated, but the father popped it back in place.

14. The mother was cross-examined about the incident when X was alleged to be in shorts.  The mother thought this was on the border of New South Wales when the father came down during Christmas 2018.  The father and X were wrestling and Ms F said, “You’re a Suburb E slut like your mother” to X.  She had thrown a bottle which hit X’s foot.

15. The mother was then cross-examined following the luncheon adjournment about the family report interviews on Saturday, 15 February.  There were then further interviews on 19 February.  She had gone with children to the fifth floor of the Court building and into a safe room.  She was on the floor that the father was not.  The children stayed with her until the reporter came to get them, and she stayed with Mr N.  She had to prompt W to be interviewed.  The report writer notified the dates.  The interviews with the father was 20 minutes.  She said it seemed quick.  The report writer said it was interrupted because the father was taken by police.  This was after she had spoken with the children.  The mother went on to then say that she had disclosed to Ms H that the police needed to speak to the father.  She said she did not tell the police.  She told Ms H during her interview that the father had breached the intervention orders.  She had told Ms H on the Saturday or the Monday.  The police asked her if she could notify them and she had refused because this might harm her case in Court.  She then went on, finally, to concede that she had informed the police that the father was going to be there, but not the time.  She told them not to do it (i.e., arrest him).

16. I should make it clear that it is quite apparent from what the mother said and the way that she said it that her initial and adamant denial of her notifying the police to arrest the father at the family report interview is plainly untrue.  Counsel in final submissions described this as a lie and I do not think that there is any other appropriate descriptor.

17. The mother was cross-examined about what she says when X says unpleasant things to her father.  She says that she tells X not to speak like that because he is her dad and loves her.  Occasionally, X says horrible things in front of the other children and she pulls her up.  She is 14 and stubborn and set in her ways.

18. In re-examination, the mother was asked about the incident with her fingers.  She was in the kitchen and the father was angry.  She got up and he followed her into the kitchen and he grabbed her fingers because she was not willing to speak to him.  It was her left hand and the middle and index finger.  He had not taken her to a doctor, but she went the next day.  This was a medical centre in Suburb E.  The fingers were jet black back to the palm and the X-ray showed a fracture.  She did not report it to the police at the time because she was scared, but told the police later within the last 12 months.

19. The mother was cross-examined about the child support debt and exhibit A2 showing an outstanding debt of $8,797.51 was tendered.

20. The mother said she had delivered her letters to the school in June straight after Court.  She had given the school a copy of the interim order to the receptionist.  It was copied and put on the file at both the children’s schools. 

The Evidence of Dr U

1. Dr U adopted her affidavit which annexed her reports on the children.  Dr U curriculum vitae discloses that she is on any view of the matter an extremely experienced paediatrician.  I note that in relation to Z she observed:

   Z has significant development difficulties.  She has a borderline intellectual disability, full scale IQ 70 (average 100), with attention deficit hyperactivity disorder.  As a result, she really struggles at school to understand what is happening and to participate in the classroom.  She now attends V School for children with a mild intellectual disability. 

   We trialled Z on stimulant medication for ADHD and the school teachers reported a significant benefit in Z’s benefit in behaviour and participation. She has continued however to have learning issue.

   Over the time I have seen Z, there has been conflict and disagreement between her parents as to the best way to manage her difficulties.  Her father has been against medication whilst her mother and the school have felt it is beneficial.

   Medication is only a small part of management and I have emphasised to her parents that decreasing conflict around Z and giving her support is more important than medication. 

1. This report should be qualified by the fact that subsequent test has reassessed Z’s full-scale IQ at 56.

2. In respect of W, Dr U’s report relevantly asserts:

   W has significant developmental difficulties.  He has a mild disability, full scale IQ 68 (average 100) with attention deficit hyperactivity disorder.  As a result, he really struggles at school to understand what is happening and to participate in the classroom.  He now attends V School for children with mild intellectual disability.

3. The report went on to say in effectively identical terms the difficulties between the parents as to W’s medication.  I note that W has been aggressive at school and would not talk with Dr U about his feelings.

4. Finally, in respect of Y, Dr U opined:

   Y has developmental difficulties and has experienced. He has attention deficit hyperactivity disorder and oppositional defiance disorder.  He gets angry very quickly and is very oppositional – he causes a lot of difficulties in the classroom by not following the teacher’s direction.  His academic performance is poor and he is awaiting a cognitive assessment.

5. Once again, the report noted the trial of drugs, which the school thought were helpful, and the conflicting positions of the parents about this.

6. The report continued:

   He also self-reports that he attempted to strangle himself the other day with his hands although he did not try very hard and we feel that this is most likely more of an attention seeking.

   I spoke with Y today who said that he does want to kill himself sometimes, mostly around his confusion about his parents.  He loves his mum and dad.  When he is with one of them, he misses the other.  He feels angry with them as well and we talked about it.  As we talked, he became sad and started crying.  His mood fluctuates rapidly, and a few minutes after crying he was laughing about a movie.

7. I note that Y had been prescribed Risperidone for his anger, but refused to take it.

8. Dr U was first cross-examined by counsel for the mother.  The mother always attends appointments and has behaved appropriately while in her rooms.  She had had less contact with the father, who was very angry with her about the medication.  It is always difficult when parents disagree.  She had had one face-to-face meeting with the father and there were no problems.  It is not life or death medication.  Reports show clear benefits when the children are on medication.

9. Under cross-examination by counsel for the father, Dr U said that the father accepted the reports from the school had shown benefits, following which the father had given the children the drugs.  At that stage, Y missed his father.  He had only seen him a few times since the reporting last year.  W became very emotional and did not want to speak to him on one occasion.  She would, of course, be prepared to talk to the father.  She would be happy to send her letters to the GP and to both parents.

10. Under cross-examination by counsel for the independent children's lawyer, Dr U confirmed the father’s view that it was ridiculous having the children on medication because there was nothing wrong with them.  This was the case with all three children.  She usually sees them altogether in the same room with the mother.  The children are very excited to see her and seem very open about everything.  The short-action drugs the children are on can be interrupted, and she would like them off these.  She would prefer counselling and self-regulation and a stable environment.  She confirmed that Z’s IQ was actually 56, but she said the conflict breaks her heart.

11. In response to a question from the Court, Dr U confirmed that it was her position that, while the emotional stability and an absence of drugs would be a preferable outcome, it would be necessary for the children to be on drugs for the moment and for their removal from those to take place over time (since I was the one asking the question, this is a paraphrase as best I can recall it from memory). 

The Opening and Evidence of the Father

1. Counsel confirmed that the father accepts that X should spend time with him in accordance to his wishes.  He seeks telephone time between 6 and 7 o’clock Brisbane time to reduce conflict.  Y wants to live with his father.  The father has spent a lot of time with the children since separation.

2. In the evidence-in-chief, the father adopted his trial affidavit as true and correct.  The Instagrams with Y were after the recovery order.  They were this year.  It started on 26 April at 9.04 pm because Y asked for a lot of photographs. 

3. The family report assessment – it lasted 10 to 15 minutes.  He was arrested in the interview room.  Ms H did not appear surprised.  He was handcuffed, taken to a police station, strip searched and thrown into the cells.  There was a warrant for a breach of an intervention order for a phone call he had made to his daughter to wish her happy birthday.  He had sent three photographs of the cruise ship.  The phone call was in the wrong timeslot.  He missed his flight back to Brisbane, and there were no charges.  This was the sixth time this had happened.  He needed more time with the consultant.  He had not got through half of it.  Time with X according to her wishes was okay.  Phone calls could be once a week only.  Orders to govern the phone calls were okay.  The time he was proposing in Melbourne was okay only because of the pandemic.

4. Under cross-examination by counsel for the mother, he was asked if he agreed with Dr U’s report as to the children’s conditions.  He said he agreed with what he knew four years ago.  When it was put to him that they had ODHD and ODD, he said this was the first he had heard of them.  He had been aware of this since Dr U’s report.  Ritalin is speed-based.  There are other medications.  He had been told by the paediatrician that Y did not have to take it.  He now accepts that Y was better at school on the drug.

5. When it was put to him that Z and W have intellectual disabilities and are prescribed drugs, the father said until he saw Dr U, he only knew they were on Ritalin and sleeping tablets.

6. He was cross-examined about paragraph 37(b) of his trial affidavit.  He had taken Y to a doctor in Brisbane to find out what medication he was on.  It had taken him six months to get to talk to Dr U.  It was years ago he spoke to Dr U.  He wanted a second opinion from another paediatrician.  Dr U says that Y was not tested properly.  Y needs testing.  He could not remember the name of the doctor in Queensland.  The paediatrician he saw was at the GG Hospital.  He says the mother is just drugging the children.  Things have changed constantly in the last three years, and he cannot keep up.  The mother does not tell him the diagnosis nor what the pills are.  They are in the children’s bags or at school.  He has been to the pharmacist once.  He blames the mother for not communicating with him about medicines.  He said he is not computer literate.  He agrees with Dr U’s evidence about the drugs and that the children should be weaned off.  Y and X attend BB School, and Z and W are at V School.  The vice president of BB School has said they could not talk to him because the mother had an intervention order.  When he got the paperwork, he rang within a couple of weeks in June 2019.  The mother has told him he will have nothing to do with his children.

7. When asked if there has been any further contact since June 2019, the father says he gets told the same thing.  He called both BB School and V School earlier this year.

8. The father was cross-examined about paragraph 9(g) of his trial affidavit.  He said this was prior to the Family Court starting.  He used to speak to Suburb E Primary every day.  Then she changed schools.  He did not like it.  Z should be at a special school, but W should not.  He is getting bored.  He should go to a normal state school.  He does not expect the mother to ask for his permission.  Discussion would have been nice.  He said to counsel, “I don’t give a fuck what you think” a gratuitous insult, symptomatic, I should interpolate and say, of his aggressive and overbearing demeanour throughout the entirety of his evidence.

9. The father said he has trouble reading and spelling.  Suburb E Primary did an assessment of X and Y. 

10. The father denied saying the previous day before lunch, “She’s fucked.”  He said Ms F is at work.  There were lots of intervention orders in Queensland and Victoria. 

11. Counsel cross-examined about the broken finger in 2009.  He first said he did not recall this happening.  He then said he admitted doing it but not in the circumstances the mother described.  He did not concede breaking her finger but then went to say, “I might have.”  The mother did not seek to go to the doctor’s, not that he could remember.

12. Counsel cross-examined on the LEAP records about this incident on 23 August 2009.  He said this was not an accurate record.  He said they were playing a game of mercy, which, as I understand it, involves each party trying to bend the fingers of the other back until one of them says “mercy”.  When it was put to him that the X-ray confirmed a fracture, he said he could not remember.  The father was cross-examined about a text message he sent to the mother, which was tendered as exhibit A3 when the father conceded he had sent it.  He had no idea when that was sent.

13. Although it takes the matter out of direct context, I would interpolate and say that this message includes the following:

    …it brakes my heart that I did this two us as I along said and call you names I hit you I broke you fingers and put you down and tread you like shit...

14. When it was put that this text had been sent in December 2011 or January 2012 when the parties separated, he said he did not remember.  He did not even recall the message (although he did not challenge that it was sent by him). 

15. The husband said he had returned from Queensland to Melbourne in 2013.  He did not recall a police callout on 28 January 2012, when, the mother has alleged, he had squeezed a cordial bottle over her.  He recalled an incident on 4 February 2012.  He had not threatened her with a pen knife but had called her a slut.  They were swearing at each other, acting like gutter trash.  The father went on to tell counsel not to put words in his mouth.  He denied cutting her skirt but said he ripped it.  The children were in the house, but they were in the garage.  To the extent that the LEAP records were inconsistent with his account, he denied them.

16. Counsel cross-examined about an incident on 8 April 2012, when the wife alleged that he attended her home, pinned her up against a wall and put his other hand up her shorts.  The husband said he did not recall.  Putting his hand up her shorts was not true.  The children were in the house, and it did not happen.  He could not remember the neighbour attending.  He did not recall being charged and convicted of assault.

17. When it was put to him that on 20 August 2012, he had been convicted at the Town GG Magistrates Court (from the LEAP records) for contravening the intervention order and common assault and had a two-month suspended sentence, he said he did not remember.  It was also put to him that he had been convicted on 17 October 2013 of contravening the intervention order with a conviction and a suspended sentence and a fine of $200.  It was then put to him that he was fined $3500 for a further contravention on 31 October 2013.  When it was put that he had attended the mother’s home without permission, he said she would phone and organise the police so that he was set up every time.  The LEAP records were tendered as exhibit A4.

18. The father said he returned to Victoria in 2013.  Her boyfriend moved to Melbourne in mid 2014.  The week-on/week-off was not straight away.  It was about 18 months and was what they both wanted.  Then it was alternate weekends because of petrol cost and problems with his work.  He did not recall a further intervention order in January 2015.  He said he might have made an application against her.  He had not followed her in his car.  It was a main road, and he was going past and tooted his horn for his children.  It is the main road out of Suburb E.  He was not waiting outside the school. 

19. He did not like Mr M.  He had contacted the Department of Health and Human Services because of an assault on Y.  He could not tell counsel the date.  He had not had the children for three months.  He applied for the intervention order before he had the children.  He then changed his evidence and said he applied while they were in his care.  He quit his job on the spot and had the kids for three months.  Then there was equal time.  DHS helped him get a plan, and his mother assisted at handovers.  This continued until Mr M threatened his mother.  DHS were concerned with ongoing conflict.  He could not recall an intervention order in June 2015.  He denied assaulting W as alleged in paragraph 59 of the wife’s trial affidavit.  He repeated the denial when taxed with X’s disclosure to this effect to the family report writer.  He said he did not do it, and he could not tell what X says she thinks she saw.  She cannot keep track of the mother’s IVOs.  He has moved on.  Every month since 2018, he has the police knocking on his door.

20. Counsel then put an extract from the LEAP records which show the conviction on 20 February 2017 and an order that he attend at The Change Program.  The father said he believed this was the case.  He denied following Ms L home from school.  She would not meet him at the police station and told him to deliver the children to her home.  He did not complete The Change Program that year because he did not get a chance to start it. 

21. He was then cross-examined about texts allegedly sent on 27 February 2017 (wife’s affidavit, paragraph 65).  He did not recall this.  He could not remember the incident.  He has said that she is stopping him from seeing the kids.

22. It was put that he was sentenced to a nine-month CCO on 15 May 2017.  The father could not recall but said if it was on the record.  He recalled an incident at Suburb HH on 16 July 2017.  Mr M and Ms Coldbeck were there.  Ms F was in the car.  He assaulted Mr M but did not threaten to kill him.  He was arrested somewhere else during changeover.  It should not have happened in front of the children.  He spent three months in custody as a result and received an 18-month CCO.  He had to undertake 50 hours of unpaid community work and attended an accredited men’s change behaviour course.  He did that and also an anger management course.  He did Dads Do Matter in 2017.  When asked what he had learnt from men’s behaviour change courses, he said it was the way he was acting.  It was the way he spoke to the mother and the kids.  It was a 14 or 21 week course.  One of the courses was 12 weeks.  The intervention order was extended in October 2017 because he was in jail.  He moved to Queensland in June 2018 after completing all his courses.  The community work was changed to fines.

23. The father was cross-examined about the incident in 2018 involving X and Ms F.  This was on the border at Town JJ.  Ms F called X.  “You’re wearing clothes like a Suburb E slut.”  A bottle slipped out of Ms F’s hand.  She was trying to swirl her drink on him.  The bottle smashed, and a little bit of glass was on X.  He had not called the police.  When he dropped the kids off, he told the mother.  She gave him a cuddle and told him to have a safe trip home.  He did not tell the mother about the police and did not tell her about Ms F nor about the intervention order he had taken out against Ms F.  X was upset and scared, but the other children were not there.  They were in the pool and riding bikes.  He had asked for time in April, and the mother said Ms F should not be there.  She is his fiancée.  He was going to come for a week, but the mother would not let him.

24. The father was cross-examined about his employment.  He said he is the manager of a ten billion dollar company.  It was put that in the end, he only turned up for two days of time.  Y and he went to Brisbane, but the other children went to the mother.  He sent her a text message, and Y rang her.  Y only had clothes for two nights, but it was not secretive.  He told Y, “You have to ring Mum and tell her what you want.”  He is 12 years old, and they can make their own decision.  Y was upset because the mother said he could not leave.  He had placed Y in school in Queensland.  He was given 24 hours to get him home.  He never tried to get X to Queensland.  He said X and Y can be heard.

25. The father said the current orders gave him the impression he was only allowed two days with the children.  He tried to see them over Christmas but was denied.  He conceded this assertion was not in his affidavit.  The father had sent cruise ship photographs, which are “-19” to the wife’s trial affidavit.  He asked about Christmas, but the mother said she was going camping, although they never went.  These were the dates he had off.  The cruise was 14 days and was organised before court even started.  Z had asked him for photographs of the boat. 

26. The father said he had missed a few phone calls.  The mother used to butt in and yell at him, and he would yell back.  He had not asked the children who they wanted to live with.  Y and X asked what is going on in court.  He has mentioned the independent children’s lawyer only once.  He told them to tell the truth.  When cross-examined about paragraph 106 of the family report, in which X disclosed concern that she would be taken away by her father, who had said this many times, the father did not directly answer.  He then said he had never said he would take her away from her mother.  He denied telling Z, “You will be talking to people sometimes.  If you want to live with me, tell them,” as reported in paragraph 118 of the family report.  He said he had referred to X as a “bitch” during phone calls but had not called her a “cunt” because he hated that word.  He said to Z, “When X does not see me, I’m not going to buy her a present.”  His gifts are thrown in the bin.  He was told that, “Mum doesn’t want your stuff.”  If the children do not see him, he does not give them presents.  He supposed that this might impact the children negatively. 

27. The father was then cross-examined about his assertion that he was managing a multi-billion dollar company.  He said he works 40 hours per week.  He wants Y to live with him.  Y needs discipline he is not getting at home.  He has run away from home four times, and the mother rings and asks him for help.  He has not seen his children for 12 months.  If Y was with him, he and Ms F could pick him up and do his lunches.  He will give him his medication if that HAS to be given to him (this was the emphasis that Mr Tanner gave it).  The other children are glad Y is not there.  He has not told the children he is married to Ms F.  He has told them they are getting married.  The mother does not like Ms F.  Ms F disciplines the kids the same as he does.  He does not believe that Ms F is upset with them all the time. 

28. When asked about the Snapchat invitation, he said he is not computer wise.  He just put it on his phone.  The mother is blocked.  The mother uses X’s phone, and she has changed her number so many times; he has lost count.  He has seen a counsellor but is not seeing one at the moment.  The last time he did so was in April and was arranged through work.  He saw the counsellor once per week for 16 weeks.  The children are not safe in the mother’s care. 

29. The father said words to the effect that he had been a threat in the past before he moved to Queensland.  When asked what his income was, he declined to disclose it because he has a fear that the wife might use it against him in child support applications. 

30. When cross-examined by Ms Elleray for the independent children’s lawyer, it was put to the father that he had indeed said, “She’s fucked up at court,” and then laughed.  The father then said he might have.  He may have said it. 

1. The children ran and hugged the father.  The father was very passionate about his children.  Only seeing them twice each year would be devastating and would cause enormous distress.  There has been no face-to-face time for about a year.  The children are still behaving in concerning ways, but they are low-functioning children.  If they only see their father a couple of times a year, there should be phone time once weekly and emails every couple of weeks where appropriate.  It might be better to bring the matter back to court in 12 months.  The children’s behaviour is in flux. 

Final Submissions by Counsel for the Independent Children's Lawyer

1. Counsel concurred with the submissions of the mother.  The father could not say one positive thing about the mother.  He could not even say the children love her.  The mother has always been the primary carer and this was important.  There are five children and three have serious issues, including Y.  There is a litany of intervention orders and breaches.  Cross-examination of the father needs scrutiny.  Notwithstanding the mother’s lie about Ms H, the father’s evidence was disingenuous and not truthful.  He does not pay child support. 

2. These are difficult children.  The father thinks he loves his children, but he cannot moderate his behaviour.  If he softens his approach and stops white-anting the mother it might make all the difference.  The mother’s partners were abusive and this included Mr M, but Mr N was decent.  The NDIS can be engaged.  The presumption of shared parental responsibility is rebutted by the ongoing family violence.  The father’s insight is very limited.  Y’s removal would have enormous impact on his siblings.  There would still be an opportunity for the father to seek further time if he changes.  The father needs to change his stance and needs to show he supports the mother as the primary carer of what, in any event, are difficult children. 

Brief Findings about the Credit of the Witnesses

1. I have already commented in part about some aspects of the evidence of both of the primary players.  Generally speaking, the mother was reasonably direct and merely responsive to the questions put, and on at least one occasion made a candid admission about her own shortcomings in the past.  As earlier indicated, I have regrettably had to come to the conclusion that her answers about informing the police of the father’s attendance at family report interviews were plainly untrue and, although it is an unusual finding to make there is no gainsaying in the fact that it was obviously untruthful and she must have known this. 

2. On occasions her answers were non-responsive and evasive and, like the father, she was labile when the father was discussing Y’s self-harm.  Nonetheless, her answers were generally given, as I say, in a reasonably responsive way to the questions put to her and, bearing in mind that many of the matters about which she was being questioned would have involved very painful and difficult memories, she was in the main a good witness. 

3. The father, it must be said, and I think I have mentioned this before, was at all times aggressive and overbearing.  His answers under cross-examination about his assaults on the mother were, in my view, very unconvincing.  He either sought, wholly unbelievably, to minimise the assaults he had undertaken (the finger-breaking incident) or blamed others (such as Mr M, who it must be said presents as a thoroughly unattractive character).  On all too numerous occasions he professed simply not to remember.

4. His answers when cross-examined about the intervention orders and his breaches showed no remorse or insight.  Rather, he sought to blame the wife, as it were, for setting him up and catching him.  What those answers of course failed to address is why, given that he says he is a man running a company worth billions of dollars, he was so lacking in insight and astuteness as to fall for the mother’s alleged traps on every occasion she set them.

5. Furthermore, a man who is managing a multibillion dollar company apparently comfortably within ordinary working hours from Monday to Friday (an assertion that I find inherently improbable) and who is engaged to another woman who is well paid would, in my opinion, be well able to pay the appropriate measure of child support.  His refusal to divulge his salary only goes to show how little seriously he takes his obligations as a parent.  He was once again often evasive and non-responsive and I approach his evidence with considerable caution.

Statutory Pathway

1. I turn now to the statutory pathway which is set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:

   “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.”

The Parental Responsibility

1. If ever there were a case in which the presumption in section 61DA as to equal shared parental responsibility should not apply by virtue of section 61DA(2) (let alone section 61DA(4)) then this is it. There is no possible question that the father has engaged in family violence. At the very least, the father has broken the mother’s fingers in 2009, he has attacked her and ripped her clothing and he has held her up against a wall and put his hand up her shorts. Perhaps mercifully this last instance was not explored in any detail, but I have no doubt that it involved an assault of an intimate nature.

2. This puts to one side the father’s lengthy history of abusive language in the presence of the children and his assault on Mr M also in the presence of the children.  It is not necessary to go on and list each and every instance of the father’s misconduct in this regard.  It is more than enough to say that the evidence points overwhelmingly to his family violence in the past.  It is absolutely clear that in these circumstances that the presumption is rebutted and an order for equal shared parental responsibility is not appropriate. 

3. This conclusion is all the more reinforced by the interpersonal dynamic between the father and the mother.  The father cannot say a single good thing about the mother, even though she is and has always been the primary carer of his children.  He says he was very involved with the children when they were at Suburb E Primary School (although he has not read the reports that he says he caused to be obtained from that school in their entirety).  He has certainly done next to nothing about contacting their present schools since he has been able to do so.  While I have no doubt that the father genuinely loves his children, his track record is not good.

4. Even leaving aside the family violence (which the Act does not permit, of course) this would be a case in which the state of communication between the father and mother, and the reasons for it, would militate decisively against an order for equal shared parental responsibility in any event. 

Spending Time – the Primary Considerations

1. In the vast majority of cases that come before the court, one is able to say that in principle both parties agree that the children ought have the benefit of a relationship with each of their parents.  This is not such a case.  The mother’s position is that the children do not benefit from having a relationship with their father and she is in substance opposed to it.  The reason that she is opposed to it is a combination of her own past and horrific experience of the father’s violence against her and behaviour towards her, together with the effect of the father’s behaviour when he does spend time with the children in any event.

2. I accept that the father has behaved completely inappropriately during phone calls with the children and it is clear that the decision to cease his phone calls in March was necessary in the best interests of the children. I accept the mother’s evidence that things have generally got much better for the children since that has occurred. In considering what orders should be made for the father to spend time and communicate with the children, it is necessary to give the undoubted family violence and associated risks of abuse that the father’s conduct represents greater weight in any event pursuant to section 60CC(2)(2A).

The Additional Considerations – section 60CC(3)(a)

1. X’s views could not be more clearly expressed.  Indeed, it is unfortunate that her education and development is such that she is using offensive language to describe him, even to an unthreatening third party like Ms H.  She presently does not want anything whatever to do with her father and she is 14 years old, which speaks for itself.

2. Y loves his father.  He has made this clear to Ms H, but he has also made it plain that, while he would like to see more of his father in Queensland, he does not want to live with his father in Queensland, even though that is something that he said to his father at or about the time he was taken to live with him and over held. 

3. Z and W’s views have been expressed to Ms H and they are recorded earlier in this decision. 

Section 60CC(3)(b)

1. There is no doubt that the children all have a warm and loving relationship with their mother, who has been their primary carer all their lives.  It is not necessary to say more than that.  As earlier indicated, X’s relationship with her father is completely fractured.  X also has a completely fractured relationship with Ms F.  I should make it clear that I accept that on the occasion at Town JJ in December 2018, Ms F said something insulting and totally inappropriate to X about the style of her dress and called her a “slut”.  She also apparently managed to wound X on that occasion with a piece of broken glass.  Whether this was intentional or merely stupidly accidental is neither here nor there.  X does not want to see Ms F at all.

2. Y clearly loves his father.  He has a close relationship to him and there are facets of the father’s personality that particularly appeal to him.  Nonetheless, Y is deeply conflicted as a result of the conflict between his parents, a matter to which I shall return.  It appears that he gets along at least reasonably well with Ms F. 

3. Z obviously loves her father and really enjoys speaking to him on the phone, although it is perhaps a measure of the father’s stunning lack of insight that he has still managed to leave Z upset at the end of some calls. 

4. W’s relationship with his father seems more nuanced.  I note that on at least one occasion the father managed to upset him so much that he screamed, “I hate this fucking life” when he put the phone down.  Both Z and W appear to be scared of Ms F.

5. I have been told nothing whatever of any moment about the mother’s new partner, whose name has not even been divulged, so far as I can recall.  It seems, according to the mother, that they may have known this gentleman for some years in any event, but one cannot say anything further than that. 

Section 60CC(3)(c)

1. The mother has undoubtedly done all that she properly should, and in very trying circumstances, to make decisions about long-term issues in relation to the children.  The father has said he was considerably involved at Suburb E, but it is not in truth practicable to assess the force of this assertion in any detail.  There is no doubt that the father has to an extent been excluded from involvement in medical issues relating to the children, but what he rather overlooks is that his own failure to participate properly in administering the children’s medication and the like explains very readily why the mother has not been particularly keen to include him.  As already indicated, his endeavours to contact the children’s new schools when in a position to do so seems to me to have been dilatory at best. 

2. So far as spending time and communicating with the children is concerned, I accept that the father has undoubtedly sought to spend time and communicate with them.  His capacity to do so has been limited from time to time by his own failure to comply with the law in relation to intervention orders and indeed even with orders of this court.  He has, however, prosecuted his case to judgment and that indicates a clear desire to spend time and communicate with them.

Section 60CC(3)(ca)

1. The mother has undoubtedly fulfilled her obligations to maintain the children as best she can in straightened economic circumstances.  The father’s behaviour is lamentable.  He refuses to contribute unequivocally to something as obviously important to an adolescent girl as X’s braces.  He is over $8,000 in arrears in child support.  He would not even reveal his income to the court for fear it might give rise to adverse child support consequences.  He pays a pitiful amount in child support. 

2. Assuming his position is even remotely as senior as he would have the court believe with his current employer, he must be in reasonably well remunerated employment and it would appear that his partner is also.  His failure to contribute to his children’s benefits if he is not seeing them (something he, himself, conceded in terms) speaks to a combination of lack of insight and meanness of spirit. 

Section 60CC(3)(d)

1. This is an important subsection in the circumstances of this case.  The father seeks that Y live with him in Queensland and spend time with his siblings in the school holidays.  This proposal shows no insight whatsoever into the effects that Y’s absence would have, at the very least, upon his two younger siblings, even if I accepted his relationship with X being maybe more nuanced.  It is quite clear that it is not in the children’s best interests to be separated in this way. 

2. This brings us then to the question of how much time the children should spend with the father. This is a matter that requires to be addressed, but, in my view, can only be addressed holistically under section 60CC(3)(m). It is sufficient to say that the children have spent virtually no time with their father in the last year and I note and repeat again that phone calls have been problematic as a result of the father’s lack of self-control and insight.

Section 60CC(3)(e)

1. There are very considerable practical difficulties and expense involved in any spend time regime with the father when he lives in Queensland and the mother lives in Victoria.  The difficulties in relation to expense are only compounded by the fact that the father does not appear to wish to pay even a cent more to the mother than he has to.  Self-evidently, transporting children with special needs significant distances up to Queensland and back would represent a challenge for children with the kind of personality difficulties and intellectual disabilities experienced by Z and W.

2. These difficulties could of course be ameliorated by a spend time regime here in Victoria and realistically that is the only tenable outcome, unless the children are separated, as the father desires, with Y alone going to Queensland. 

3. I do not think that Y should go alone to Queensland in any event.  I think that given past history there is every chance that the father would pressure (unconsciously more probably than otherwise) Y into expressing a desire to stay with him and would be likely to over hold him.  Such over holding would be even more problematic, given that by then Y will be older again.  Furthermore, I do not think it is in the family’s interest to be bifurcated in this way with one child being ostensibly privileged or advantaged over the others. 

Section 60CC(3)(f)

1. The mother is not without her frailties.  She has been in the habit of making at least two relationships with men who were seriously violent to her, namely the father and Mr M.  The father has hinted from time to time darkly about promiscuity on the mother’s part, but there is no objective evidence to support his assertions.  However, what I do know is that the mother appears to have an extremely dependent personality.  She was only out of the relationship with Mr M for a very brief time before she entered into the relationship with Mr N and appears to have been out of that relationship for only a few weeks when she commenced the relationship with her current partner.

2. As I would find, and this was consistent with her demeanour while giving evidence, she has a rather dependent personality and unfortunate tendency to relationships with men who dominate her to a degree she may subsequently regret.  Having said this, she is, I repeat yet again, the person who has been the children’s primary carer all their lives.  This is a particularly difficult role to play given the difficulties evidenced by each of the children, which is consistent with their intellectual difficulties and congruent with their all too obvious experience of family violence. 

1. The father’s capacity to provide for the emotional and intellectual needs of the children is extremely compromised.  First of all, he does not accept that the children’s conditions are in truth as difficult as they are.  He does not accept the views of Dr U that the children may need medication at least for now.  He is, as it were, a self-appointed internet expert in medicine.  The fallacy of this position is self-evident.

2. I should make it clear that Dr U impressed me as a witness, who was utterly fair in responses to all the questions to her and was quite clearly an expert in her field.  It is not generally necessary to make findings of this sort, but given that there was a measure of attack upon her in the evidence given by the father, I feel I should make it clear. 

3. Not only does the father lack insight in these ways, but he stunningly lacks insight into the extent and nature of the family violence he has committed in the past for which, in truth, he tends to blame the mother or Mr M or indeed anybody except himself.  This lack of insight is also reflected in his over holding of Y and his continuing desire to separate Y from his siblings.

4. Everything the father said and indeed the way he said it (loud and domineering) suggests an incapacity on his part, despite his love for his children, truly to be able to provide in a proper way for their intellectual and emotional needs.

Section 60CC(3)(g)

1. Once again, this is an important subsection, but it has largely been dealt with above.  The only additional matter I would refer to in this regard is the father’s striking tendency to form relationships with women substantially younger than himself and what appears to me to be something of a possible pattern of a dominant role in the relationship on his part. 

2. Ms F was only just over 20 when she started living with the father, who is very substantially older.  This of course is not of itself a matter for criticism, but it strikes a slightly eerie note in the background (I have mentioned this as a relevant matter, but should make it clear that it does not merit any great weight).  The father’s temperament is domineering and bullying and violent and the mother’s is dependent and I make it clear that it would infer lacking in self-esteem.  These are factors which very much contributed to the nature of the relationship between the mother and father and explain why she tolerated so much for so long.

Section 60CC(3)(h)

1. This is not relevant.

Section 60CC(3)(j)

1. These children have been the subject of substantial amounts of family violence in the form of screaming and yelling by their parents involving, no doubt, the sort of language that has given rise to X’s expressions uttered to Ms H.  There is no question that family violence on a major scale has taken place, as I have already determined.  The difficulties the children are now having spring, as Ms H put it, from this and I have no hesitation in saying that this is a very significant consideration in this case.  The need to protect the children from family violence on an ongoing basis from the father is paramount.

Section 60CC(3)(k)

1. This case is littered with intervention orders, all of which were taken out, as I find, for good cause by the mother, even though the father might be correct in saying that some of them, viewed objectively, might have involved trivial transgressions.  However, I accept the evidence of Ms H that these are not trivial transgressions to the mother.  I accept the submission by counsel for the independent children's lawyer that this is not a case of the mother simply setting the father up.  She certainly did so, of course, in the recent family report incident, but I accept that the reason for the numerous proceedings arising from breaches of contraventions is the mother’s genuine fear of the father and her resultant responses to his behaviour. 

Section 60CC(3)(l)

1. Counsel for the father pressed, perhaps somewhat faintly, for there to be interim orders and review in due course.  I emphatically do not agree.  These proceedings are terribly wearing on all concerned.  It is vital that they be brought to an end.

Section 60CC(3)(m)

1. The other circumstance that bears upon this case is a self-evident one as to what the final outcome should be.  It must be accepted and I readily do so that to diminish the father’s time in the fashion that the independent children's lawyer and mother seek will be devastating for him.  He adores his children, albeit in a highly possessory way (I refer to the father’s various assertions of his rights, which I have set out in terms above).  Equally, it is likely the children will, at least to a varying extent, will be affected by the diminution in the father’s time, if that is what is ordered.  I accept that they will need therapy to assist them, should it be so.

2. Against this, however, the need to protect the children from the father’s uncontrolled behaviour is really ultimately paramount.  Taking all the considerations together, it is in my view plain that the orders sought by the independent children's lawyer and mother are, very regrettably, those that are in the children’s best interests in these circumstances.  The father’s past violence, his lack of insight in relation to his own past conduct, his attitude to the mother, and his behaviour to the children, the appalling family violence and the children’s exposure to it, all lead inexorably to this conclusion. 

Conclusion

1. I propose to make the orders sought by the independent children's lawyer.  They will of course indeed be a bitter pill for the father to swallow.  However, there are some glimmers of hope.  The father did say that he now realised that it was not a matter of what he proposed to do, but what the court decides and that he would accept this result.  It is to be hoped that he can live up to that assertion.  If he does and if he undertakes the process of reflection that enables him to realise what his past behaviour has truly been and what it has led to, and if he takes appropriate steps to both gain and reinforce that insight, then it is clear that, as the independent children's lawyer submits, he should be given at least the opportunity to apply to reengage.

I certify that the preceding two hundred and forty-seven (247) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 4 September 2020