Costa and Rashed - [2010] FMCAfam 1152

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COSTA & RASHED

[2010] FMCAfam 1152

FAMILY LAW – Parenting – children’s best interests –father seeking regular face to face time with children – Independent Children's Lawyer proposing recognition contact twice a year as recommended by Court expert – mother proposing children spend no time with father – children, aged 12 and 9, alienated from father – both children opposed to spending time with father – younger child hysterical on meeting father with Court expert – circumstances proposed by Court expert to facilitate successful recognition contact not achievable – presumption as to equal shared parental responsibility rebutted – not in children’s interests to spend any time with father.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB

Goode & Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296

Applicant:

MR COSTA

Respondent:

MS RASHED

File Number:

PAC 1921 of 2008

Judgment of:

Halligan FM

Hearing dates:

13 & 14 September 2010

Date of Last Submission:

14 September 2010

Delivered at:

Parramatta

Delivered on:

15 September 2010

REPRESENTATION

Solicitors for the Applicant:

In Person

Counsel for the Respondent:

Mr Cairns

Solicitors for the Respondent:

Dignan & Hanrahan Solicitors & Attorneys

Counsel for the Independent Children’s Lawyer

Mr Berry

Solicitors for the Independent Children’s Lawyer

Maclarens Lawyers

ORDERS

The mother shall have sole parental responsibility for the children [X], born [in] 1998, and [Y], born [in] 2001.
The children shall live with the mother.
Orders are made in accordance with paragraphs (5), (6), (7), (8), and (9) of the orders sought in the Independent Children’s Lawyer’s case outline.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 1921 of 2008

MR COSTA

Applicant

And

MS RASHED

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings concerning 12 year old [X] and nine year old [Y]. The children’s father is the applicant. He is unrepresented. The children’s mother is the respondent.
Ultimately, the orders the father sought were that the parents have equal shared parental responsibility for the children, that the children live with the mother, and that the children spend specified time with the father. He proposed a regime of re-introduction of the children and the father for three months, where he sought to see both the children from 4 pm to 7 pm each Monday, Wednesday and Thursday, and on either Saturday or Sunday each weekend from 10 am to 6 pm but with the father seeing one only of the children each weekend, and alternating between them. Thereafter - that is after the three months - he proposed that the children spend time with him on alternate weekends from after school Friday to before school Monday and for half of all school holidays.
The mother sought sole parental responsibility, that the children live with her, and that there be no orders for the father and the children to either spend time together or communicate.
The position of the Independent Children’s Lawyer ultimately became that there be sole parental responsibility to the mother, the children live with the mother, and they spend time with the father on the basis of what was described as recognition time or contact twice a year, around each of the children’s birthdays, at a supervised contact centre. The Independent Children’s Lawyer also proposed orders for the father to receive copies of the children’s school reports and school notices, and be advised of any serious illness affecting the children. Further, the Independent Children’s Lawyer proposed that the mother be required to facilitate any communication by the children with the father that the children themselves sought, and that the father be permitted to communicate with the children by forwarding gifts and cards on birthdays, Christmas and other special events, but with the communications confined to expressions of best wishes for the celebration of the event. The Independent Children’s Lawyer also sought a mutual non-denigration order and a restraint on any physical punishment.

Credit of witnesses

I was ultimately not asked to make any findings as to credit. There were aspects of both parties’ evidence which were internally inconsistent, but consistent with the way that the case has been presented to me, it would not be appropriate, and in effect I am unable, to make findings in relation to many of the contested facts. I was not asked to do so. There were no submissions made to me as to the findings of fact I should make at all.

Background

The father is aged 44, having been born [in] 1966. The mother is 43, having been born [in] 1967. The parties commenced cohabitation in December 1989, married [in] 1993, and separated either on 7 November 2005, as the mother asserts, or in February 2006, as the father asserts. For the reasons I have just alluded to I can make no finding as to the date of separation. The parties were divorced in mid-2008.
[X] was born [in] 1998 and [Y] [in] 2001.

The evidence

There are issues in relation to each parent’s involvement in the care of the children before the parties separated. I am satisfied that both of the parents were involved in aspects of the children’s care before separation, but the evidence does not permit me to make detailed findings as to precisely what each party may have done in relation to their care.
As I have said, the mother asserts the date of separation to be

7 November 2005, which the father denies. I note that the father did say in his amended application verified on his oath that

7 November 2005 was the date of separation, but his affidavit evidence says that it was February 2006.
Be that as it may, there is no issue between the parties that on 28 November 2005, whether the parties had separated or not, the father broke a window at the matrimonial home to gain entry, cutting his arm in the process. He then wrote the word “thanks” in his blood on the kitchen wall and left a note for the mother on which he dripped his blood saying, “I am going to go bleed to death for you”. The father left the premises.
The mother returned and called the police. Later that day, the police arrived to find the father sitting in the lounge room of the matrimonial home having a cigarette. There was a container of petrol in the room because, the father said, he was mowing the lawn, and the mower had run out of petrol. The mother alleges and the father denies, and I cannot determine whether, on this day the father went to a neighbour’s home where the mother and [Y] were and loudly swore at and abused the mother to [Y].
The COPS entry in relation to this particular event, from the subpoenaed material that has been submitted into evidence, suggests that the mother reported that she followed the father back into the home where he produced a container of petrol and a lighter, and threatened to set both of them alight. The mother made no such assertion in her affidavit evidence. Rather, she suggested instead that when she followed the father to the matrimonial home he had a hammer, and threatened to smash the place up. The father denies both versions.
I am not satisfied that the father either threatened to set himself or anyone else alight or that he threatened to smash the matrimonial home up with a hammer or anything else. But whatever did happen there is no issue that the police conveyed the father to [C] Hospital after this incident and he remained overnight. In the circumstances, I am not prepared to prefer notes from the father’s admission to [C] Hospital on this occasion over the father’s direct sworn contrary evidence.
The father suggested, as I understand it, that this incident would not have affected the children, because they were not present. But the house was the children’s house, and [Y] was with the mother, and returned to the house. The father appears, even now, not to accept that what he did, including writing in blood on the kitchen wall, could in any way have affected these children. That concerns me.
An interim apprehended violence order was issued on this occasion, but the mother subsequently did not press her complaint, and the proceedings were dropped. It is the mother’s evidence that despite this incident, she allowed the father to continue seeing the children, she said on a number of occasions each week, not overnight, and for a few hours at a time.
In April 2006, the father moved into his own accommodation, and commenced spending overnight time with the children on alternate weekends from Friday evening to Sunday evening. This was by agreement between the parents.
In early July 2006, the mother alleged, and the father denied, that the father came to the matrimonial home and smashed a computer. The version of events in the mother’s affidavit is different to the information recorded from her in the COPS entry. I am certainly not satisfied on the evidence that I could make any finding that the father damaged any computer on this occasion.
The mother did call the police on this occasion, and a final apprehended violence order was made against the father for two years on 1 August 2006. Nonetheless, the mother permitted the children to continue spending time with the father.
At Easter 2007, the children were with the father when the mother received a phone call from police advising her that the father had been arrested, and requesting her to attend to collect the children. When she arrived the police were present, the father was in handcuffs, and the children were extremely distressed.
What had prompted this particular event seems not to be in dispute. The day before, Easter Saturday, the father had left a device resembling an explosive device with a note demanding money at a TAB. The police were called, the shopping centre was evacuated, the bomb squad attended, and only after three hours was the all clear given. The facts sheet tendered, when the father appeared in court on charges arising from this incident, described the device the father left as “an elaborate hoax designed to appear to be a genuine electric explosive device.”
The note the father left read:
“Next to drink machine is a bag. Collect it and look inside. There is a second bag in another place. You will shut down your machines and tell patrons technical problems. You will then empty all cash notes from counter drawers in the safe, also your hidden cash into the bag. You have exactly three minutes to do this. 2.20 pm time is up. Don’t fuck with me. You have a lot to lose.”
The father’s explanation for his actions appears to be that he was on prescription medication, Stilnox, having been prescribed four a day but by then, he admitted, taking six a day, that he was affected by this medication, and that he wanted to be locked up. Why he wanted to be locked up is not clear. What he thought would be achieved by being locked up is not explained. I must infer, however, that the father felt unable to cope and felt unable to even meet his own needs, much less those of the children who either were already with him on the Saturday or came to him the following day, the Sunday.
The father was not prepared to accept any responsibility for his actions on this occasion, blaming rather the doctors who prescribed the medication and the medication itself for having serious effects on him. His explanation for exceeding the prescribed dosage was that they were not working. He said he did not tell the doctor who prescribed the Stilnox that he was then heavily using marijuana.
He seemed totally oblivious to the consequences for the children of him trying to get arrested while the children were with him. Of course he succeeded, to the great detriment of his children.
After the father’s arrest he was held in custody on the Sunday night. On the Monday he was bailed to appear at another court on Tuesday. On the Tuesday he was remanded in custody to the Thursday of the same week and on that day he was scheduled to Waratah House. He was released from there the following Monday. The result of any charges arising from this incident does not appear from the evidence.
This incident is particularly disturbing. As I have said, the children either were with the father on the day of the hoax, or came to him the next day. The father claims this was a call for help. He wanted to be locked up. As I have said, why was not explained beyond non-specific references to the effects of a lack of sleep and Stilnox. But if he was unable to properly look after himself, it is a great concern that he still proceeded to take the children into his care. How could he have met their needs if he could not meet his own? In the event he exposed these children to severe emotional and psychological trauma, they being present when he achieved what he set out to achieve, being arrested, and he acknowledges no responsibility for this. He does not even appear to acknowledge that this was detrimental to the children.
Between that event and Easter the following year, the father said the mother let him see the children on about six occasions. The mother suggests it was rather more than that. She says that after the TAB incident, the children resumed seeing their father on 24 April 2007 despite the fact, she says, that as a result of the impact on her and the children of the father’s actions they were referred to a psychologist. She said, in fact, the father’s time with the children resumed at her instigation. It appears that initially this was not overnight time, according to the mother. She said the overnight time resumed on 8 June 2007.
[X], by then, had commenced seeing a psychologist. He commenced on 10 May 2007. [Y] commenced seeing the same psychologist on 23 July 2007. They continued seeing that psychologist, according to a report that was subsequently put into evidence, until February and April 2008 respectively. The psychologist that the children saw over this period of time said that [X] initially had behavioural issues with displays of bursts of anger. The psychologist reported that at times he expressed mixed emotions. He was reported as expressing anger towards both his parents, particularly in relation to how sometimes his father was making it difficult for them all. [X] was reported to at times speak about looking forward to spending time with the father, but at other times to be indifferent, detached, and avoiding talking about his father.
The psychologist reported [Y] was referred with difficulties adjusting and coping with the separation, having nightmares and trouble sleeping. She was reported initially as expressing a desire to see the father. It would seem possible, at the very least, that the mother’s permission or instigating of the children’s time with the father, despite the event at Easter 2007, may have been consistent with the children’s wishes.
[Y], according to the psychologist, presented as fearful and needing protection. She expressed hurt that the father called her a liar, an event that she found difficult to let go. Towards the end of the sessions – and as I say with [Y] they ended in April 2008 so far as the psychologist’s report is concerned – [Y] was worried about the father taking her away from the mother as the father had expressed a desire that she come and live with him when she was older. Ultimately, [Y] came to express anger and even hatred for the father.
The father said that in August 2007 the mother agreed to his request to have the children for a birthday party for [X] which he duly arranged, but the mother then reneged at the last minute. This evidence was unchallenged and I accept it. Similarly, in relation to his evidence that at Christmas the same year he arranged and paid for the children’s attendance, with the mother’s prior concurrence, at a club Christmas party, only again for the mother to renege at the last minute.
The mother said that in August 2007, the father came to her house and was aggressive and abusive. She gave no evidence of what she said occurred. Therefore I am unable to make any findings that the father, on this or any other occasion that she so vaguely describes, was aggressive, abusive or anything else.
However, she does say that, thereafter, the children began resisting spending time with the father. Between September and December 2007, it seems common ground between the parties that the father’s time with the children was intermittent and not regular.
In mid-January 2008, the father was evicted from his home by the mortgagee.
On Easter Sunday in 2008, the children spent time with the father by agreement, and an incident occurred at changeover at the end of the time spent with the father that day, in that evening when the children were being returned to the mother. It was clearly an altercation between the parents in the presence of the children. On any view of the evidence of both parents, this seems to have adversely affected the children. But each of the parents gave differing versions of what occurred, and as I was not asked to make any concrete findings one way or the other or given any reasons why I should prefer one version of events over the other, I find myself unable to do resolve the conflict in the evidence about this event.
Whatever occurred on this occasion, it was the last time that the children saw the father except at interviews with Dr R, the court-appointed expert, in June of this year. The mother said that the children and she, after the event at changeover on Easter Sunday 2008, had had enough, that the children told her that they no longer wanted to see the father, and she told the children that she, herself, had had enough. Since then the mother has not encouraged the children’s relationship with the father.
On 15 April 2008, it is agreed that the father attended the mother’s home. As I understand it, the mother asserted that the father caused some damage, being a scratch down the side of her car, on this occasion. There is no evidence upon which I can make a finding to that effect.
In July 2008, the apprehended violence order that had been made on 1 August 2006 was amended to include the children, and continued for two years. It seems that this order was appealed to the District Court, and although there is some inconsistency in two different documents purporting to record the result of the District Court hearing, it seems that the amended order was continued more likely than not until 1 August this year, and I proceed upon the basis, although it is not totally clear, that there has been no apprehended violence order in force since then. It does appear that the AVO continued to cover the children as well as the mother after the District Court appeal.
On 31 October 2008, the father’s work mates reported him missing to the police with concerns for his welfare, after he had sent one of his workmates two SMS messages. The father, as I understand it, denies that there was any basis for concern about his welfare on this occasion. But the messages that he sent, and his admitted distressed state at the time, were clear reasons for reasonable apprehension about his welfare at that time.
This is another example of the father having no appreciation of the effect of his actions on others and not being prepared to take any responsibility for his own actions. It was quite reasonable to interpret the SMS messages, which are in evidence before me in the COPS entries and which are conceded, as I understand, by the father to have been sent in those terms, to have raised genuine fears that the father may have intended harming himself and probably committing suicide, whether he actually so intended or not.
In 2008, the father was twice charged with breaching the apprehended violence order by sending SMS messages to the children who, as I say, by then were included in the apprehended violence order. The father, as I understand it, sought to suggest that there was nothing untoward or wrong in what he did. He sent the messages for the children, they were sent to a mobile phone that had been specifically provided, with the mother’s concurrence, for him to communicate with the children, and he said that all he did was to tell the children that he loved them on one occasion and wished them a merry Christmas on another. This is a further example of the father’s attempt to minimise his own behaviour and ignore what he actually did. The messages he actually sent went well beyond what he said they entailed, and they included statements to the children highly critical of the mother.

As I said, this is simply another example of the father seeking to evade or deny any responsibility for what he himself has done. It also shows the father attempting to directly involve the children in, and expose them to, the parental conflict. The father’s evidence in cross-examination that he knew the children would never see his messages as the mother would not show them, and that they were his way of intimidating the mother, is hardly of advantage to the father in this case.
The father has consistently used marijuana since the mother has known him. It seems not to have been a serious concern to her until more recently. She did suggest that she, during the relationship, frequently asked him to stop. However, she was prepared during cohabitation to travel with the children in the family car driven by the father when she knew he was significantly affected by marijuana. She was thus exposing herself and the children to clear danger.
The father said, in his evidence-in-chief, that he stopped smoking marijuana in 2007. That evidence is clearly false on his own later statements. He still uses marijuana. He said that in 2007 or 2008, depending on what part of his evidence one relies upon, he reduced his use of marijuana from regular use to casual social use. He underwent two drug urine tests on 4 September 2009 and 12 October 2009. Both were positive for cannabinoids. He said he last used marijuana at his birthday celebration in June this year. This was yet another aspect of the father’s behaviour that when cross-examined he prevaricated, argued and rationalised but never accepted that there was anything inappropriate in what he did.
The one possible exception to the father’s practice of denying responsibility for his actions and seeking to prevaricate, argue and rationalise was in relation to a shop stealing scam he has been involved in where, for one incident, when he was cross-examined, he was quite evasive in his answers, and I was not satisfied with them at all, but in relation to another incident he seemed almost proud of his actions. He certainly displayed nothing remotely resembling an appreciation that his conduct was criminal and justifying any criticism or sanction. The scam involves entering a store, buying goods legitimately, leaving the store, giving the receipt to an accomplice who then enters the store, collects an identical item, leaves the store using the receipt as proof of purchase of the item that has not, in fact, been purchased, and then returning the item for a refund.
The father’s evidence is that he binge drinks. He alleged that the mother drank bourbon to excess during their relationship. However, his evidence in cross-examination was that, rather than the mother drinking the quantity his evidence-in-chief suggested she did on her own, in fact they both drank it together. I am not satisfied on the evidence that the mother has abused alcohol in the past, or does so now.
The court-appointed expert, Dr R, saw the parents and the children, and produced a report. When the children were seen, and Dr R asked [Y] about her father. She is recorded as saying:
“Not that good. He lies. He called me an idiot. He was swearing.”
Dr R said that [Y] told him that she just wished that he would go away. When she was asked if anything bad had happened to her, the child started to smile and said:
“He touched my private parts.”
The child was laughing and smiling at the same time. When asked to tell Dr R more, the child was not able to give any more information. The child reported to Dr R that she had nightmares about the father.
The child had not previously told the mother of this incident. She did so, however, almost immediately after the interview with Dr R, probably on the way home from the interview. The mother contacted the Department of Community Services, the child was interviewed by the JIRT team, and it was determined to have been an accidental and certainly not an inappropriate touching in any way. The mother accepts that that is so.
In relation to [X], Dr R said that when asked about the father he said:
“Not well. I hate him.”
As part of the interview process, Dr R brought the children and the father together. It seems that the children did not, in advance, know that this was to happen. Dr R reports the following:
“The children were both shocked to see the father. They believed that they would not see the father. The father was crying and had difficulty coming into the office. [Y] stood away and started to scream. [X] looked relaxed and confused. He was sitting on the other side of the room and didn’t appear distressed at all. [Y] was crying and very upset. [X] went to calm [Y]. (The father) didn’t know what to do. He was crying and blubbering. I tried to get them to converse. I asked (the father) what they liked to do when he saw them. He said that [Y] liked the X-Box. They were all very agitated except for [X]. [Y] kept saying that she wanted to go out. She couldn’t really explain why she was upset. I asked her to talk about what was distressing her. She wasn’t able to state what it was. [Y] did calm a little, although she was still very agitated and didn’t want to stay in the room. There didn’t appear any logical reason for her to be so distressed. She appeared unprepared and shocked about seeing the father. She indicated that she wasn’t expecting this. [X] didn’t show any sign of fear or distress.”
The children were then subsequently seen on their own, they also having been seen on their own before meeting the father. After seeing the father on their own Dr R reported that he asked [Y] to explain why she was upset. The child settled down and stopped crying and said:
“I don’t want to see him. I don’t want to see him because he might hurt my feelings. He hurt me.”
[X] was reported as saying:
“He called her a liar. He sold her X-Box.”
Dr R says that when [X] was asked if he was upset, he replied:
“I’m used to it.”
When asked why he was not upset, [X] said:
“I got over it.”
Dr R apparently then asked the children in the presence of the mother what they understood about their situation, and [X] said:
“I know heaps. You told me everything.’
Dr R was of the opinion that the relationship between the children and their mother was a close, loving relationship. However, he believed that there was a significant separation anxiety between [Y] and her mother. He referred to the child’s difficulty sleeping separately, and being anxious about the mother leaving her at times. It is not clear what times are referred to. The evidence before me only seems to refer to times when the child is concerned about the father, but Dr R stated:
“This indicated to me that she has separation anxiety, and that the anxiety about her father is more in relation to the separation from the mother, rather than fear of seeing the father.”
When Dr R asked the child about these things, it was in the context of the child having been told by the father that he would like her to live with him when she was older.
In the opinion of Dr R, there was probably a good relationship between the children and their father in the past. However, he said:
“I formed the view that the father had significant emotional difficulties. He appeared to be very dependent in his manner. He projected a lot of his feelings and difficulties onto the mother and onto the children. He blamed the mother for the problems that he had with finances. He blamed (the mother) for the marriage breaking down. There was also a degree of blaming the children. He called [Y] a liar. There was a certain degree of criticism of the children.”
As I understand it, the father justified calling [Y] a liar by saying that, in fact, she had lied. Dr R continued:
“He didn’t have any insight into the fact that using significant amounts of marijuana was possibly not compatible with being a functional parent. He blamed the mother for changing her mind about accepting his marijuana use.”
And again:
“When under stress, he has found it difficult to cope, and has behaved in an erratic way. This suggests to me that he does have significant dependent and borderline personality features. He’s had attempts at self-harm, and threats to blow up a TAB. He also appeared quite uncontained in his emotional expression with the children.”
In relation to the children’s views, and the weight to be given to them, Dr R expressed the opinion that the children appear to be developing normally, both cognitively and emotionally, for their respective ages, although [Y] exhibits separation anxiety mainly in the context of separation from the mother at particular times and has become very focused on the father. Dr R continued:
“The children both indicated they don’t want to see the father and are very negative about him. [Y], I believe, is expressing her anger, and her hysterical reactions appear to be more in relation to her separation anxiety levels, rather than a genuine fear of the father. [X] didn’t show any fear, and he appeared to be supportive of the mother. It doesn’t appear that the father has a great deal of insight into the needs of the children. It wasn’t clear how well he functioned in a role when he was caring for them.
I formed the view that at best he was limited but that he did care about the children. I formed the view that the children are not able to form a balanced view about the father.”
In relation to the father’s mental health, Dr R expressed the view that he suffered from a personality disturbance, with dependent and borderline personality features. He said:
“Despite these personality difficulties, I believe that (the father) cares a great deal about the children. I don’t believe that he is an unacceptable risk to the children, except perhaps when he is under extreme duress, such as the rare occasions when he’s been required to go to hospital, because of stress.”
In relation to the various outcomes, Dr R said the following:
“Should the children continue to reside with the mother, and not have any contact with the father, I believe they will continue to develop normally. They are not likely to be protected from any dramatic events involving the father. The father doesn’t appear to have insight into his personality disturbance or the impact that this may have on others, including the children. In the short term, there won’t be any major disturbance for the children. However, in the long term, I believe that there would be a sense of loss of not having had contact with their father, and not knowing their father’s family. This could result in feelings of anxiety or depression during their teenage years, as they are trying to establish their own identities.
The next possibility is for contact to be established with the father on a fortnightly basis. I don’t believe this is realistic. The children are not going to attend contact, and this would be too big a change for them. The father hasn’t demonstrated that he has emotional capacity to contain himself, and be stable around the children. I don’t believe that the children would co-operate with seeing the father under such circumstances.
The third possibility is some form of recognition contact. I believe that if the children had contact with the father, perhaps twice a year, including other members of the father’s family that this could at least maintain a link with the father and his family, and aid them in their overall development. They would also maintain some links with their other half of their heritage.”
Dr R made the following recommendations:
“(1) I recommend that the children remain in residence with the mother, whom I believe is very capable, and has provided well for the children.
(2)    I recommend that there be some recognition contact with the father in a supervised capacity, either at a special centre or, preferable perhaps, with the paternal grandmother and extended family. This could possibly include (the mother), or some other third party to facilitate the occasion. I believe this could occur twice a year, perhaps, for up to four hours.
(3)    I recommend that neither parent denigrate the other in front of the children.
(4)    I recommend that both parents receive some separate individual counselling in order to deal with their respective issues.
(5)    I recommend that (the father) undertake significant rehabilitation, in order to overcome his personality difficulties. If he is able to demonstrate that he can be drug-free, stable in his employment, self-sufficient in his accommodation, and not blame others for his circumstances, and financially independent, he may be able to demonstrate that he could potentially have more to contribute to the children’s lives. However, this is likely to take considerable dedication from him. He would need to be highly motivated for himself, not just for his children.
(6)    I recommend that neither parent use any physical punishment with the children.
(7)    Both parents should attend post-separation courses.
(8)    The mother also needs some help in understanding that the problem for [Y] is that she has separation anxiety, and that this is not due to the fact that the child is directly frightened of the father. The father represents an irrational fear that she may be taken away from the mother. [X] does not have fear of the father.
(9)    In general, I don’t believe the father is an unacceptable risk to the children. Only at times of great duress, the father can present as an unacceptable risk when he has threatened to harm others, and himself. Therefore, in essence, as I believe in a safe and controlled environment, such as with extended family, he would not present as an unacceptable risk.”
After the children saw the father with Dr R, [Y] commenced again to wet the bed and have nightmares. The mother has re-engaged her with a psychologist.
In relation to the father’s proposals, his current accommodation seems unsuitable to have the children stay with him. He lives in a house with another couple and their teenage child. He said he will not seek other accommodation until he learns what orders the Court will make. The father works full-time. There is no evidence where the children would live with the father if they were spending time with him. There is no evidence whether the other occupiers of the premises where the father lives agree to the children going there.
Otherwise, the father’s proposals for his time are as I outlined at the commencement. That would entail the children, who have not seen the father for two and a half years, spending three afternoons per week, and one day each alternate weekend with him for three months, then moving to two overnights each alternate weekend and half the school holidays, which would be for the Christmas school holidays on the very first occasion, and only after the children have spent one whole weekend with him.
The father seemed not to have thought through his proposal, certainly from the children’s perspective. Where [Y] was so distressed on meeting him with Dr R, the father’s proposal to see the children separately on weekends may simply remove one source of security and reassurance for [Y], namely her brother. Dr R noted, in fact, [X] moving to reassure and comfort [Y] in her distress when the father was introduced to them.
The mother works three days per week and alternate Saturdays. She and the children remain in the matrimonial home. I am satisfied that the mother has proper arrangements in place for the children’s care and that they are progressing well, subject to [Y]’s significant separation anxiety.
I have already set out the mother’s specific proposals as I have also set out the Independent Children’s Lawyer’s proposals.

The applicable law

As I said at the outset, these are parenting proceedings. They therefore fall to be determined under Part VII of the Family Law Act 1975. The Court may make such parenting orders as it sees fit subject to s.61DA and s.65DAB (s.65D). In relation to s.65DAB, which refers to parenting plans, there is no evidence that there have been any parenting plans in relation to these children so that section is not relevant.
Section 60B sets out the objects and principles underlying Part VII of the Family Law Act, and of relevance is the following from subsection (1):
“The objects of this part are to ensure that the best interests of children are met by:
(a) Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; and
(b) Ensuring that children receive adequate and proper parenting to help them achieve their full potential.”
In subsection (2) the principles include:
“(a) Children having the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children.”
These principles are all subject to one qualification, and it is an important one – “except when it is or would be contrary to a child’s best interests”.
In deciding what order to make, the children’s best interests are the paramount consideration (s.60CA). Section 60CC indicates how the Court determines the children’s best interests. The synthesis of section 60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode & Goode, [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9:
“Thus in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration and the framework in which best interests are to be determined are the factors in section 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.”
When making a parenting order, the Court must apply a rebuttable presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child (s.61DA). This presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person living with a parent, has engaged in abuse of a child who is a member of the parent’s or that person’s family or has engaged in family violence (s.61DA(2)). The presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s.61DA(4)).
If there is, or is to be, an equal shared parental responsibility order, the Court must consider the children spending equal time with each parent, and if it does not make such an order, it must consider the children spending substantial and significant time with each parent (s.65DAA). The process required by s.65DAA in each of the alternatives and in that sequence is first to consider whether the arrangement would be in the child’s best interests, then to consider whether it would be reasonably practical, and then if the answer to the two preceding propositions is yes, to consider making the order.

The primary considerations as to best interests

Turning then to a consideration of the first of the primary considerations under section 60CC(2), the benefit to the children of having a meaningful relationship with both of the parents. The difficult question in this particular matter is what benefit the children would derive from a relationship with the father. Their relationship with him has broken down. The father cannot understand why, other than to blame others, and in particular the mother, for poisoning the children against him.

One of the reasons that he mentioned, on two separate occasions in cross-examination, for wanting to spend time with the children was to find out why they had stopped wanting to see him. The clear inference, and consistently with the SMS messages that he sent in 2008 on which he was charged with breaches of the AVO, is that he wants to tell the children that the mother has lied about him and to set the record straight. That would simply further enmesh these children in the parental conflict.
There must also be concerns about the benefit that the children might derive from a meaningful relationship with the father because of his ongoing marijuana use, his binge drinking, his criminal activities with the shop stealing scam, and concerns about his relationships with various women about whom he was vague, prevaricated and was argumentative in cross-examination, evidence about which I was left most concerned.
Of course, this consideration speaks of a beneficial meaningful relationship because it speaks of the benefit from a meaningful relationship. In this particular case, the children do have a relationship that is meaningful in the sense of having significance to them, but unfortunately it has come to have significance for them for all the wrong reasons. The father/child relationships have strong negative connotations, not beneficial ones at all.
The second of the primary considerations is the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
As I said, [Y]’s disclosure to Dr R has been investigated, and it is accepted by all in this case that it was not inappropriate and was accidental.
It was not submitted on behalf of the mother that I should make any findings that there has been any family violence in this case by the father despite the several AVOs. As I have alluded to, the mother made certain generalised allegations about the father being aggressive but gave no evidence of what she meant or what she said occurred. On the evidence before me I cannot find that the father damaged the computer. In relation to the incident in November 2005, there was certainly no submission made to me that I should find it was an event involving family violence, and there was certainly no submission made to me that these children were at risk of neglect with the father despite what I have said in relation to the TAB incident.
I propose to deal with paragraph (b) of section 60CC(2) in the way in which the case was presented on behalf of the mother, and it was not presented in a way to suggest that this particular consideration looms large in the case. Nor was it put to me on behalf of the Independent Children’s Lawyer that it loomed large for consideration.

The additional considerations as to best interests

Turning then to the additional considerations, the first is views expressed by the children. The children clearly do not want to see the father.
[X] is not fearful of the father. Dr R’s opinion is that [Y] is not fearful of the father but has separation anxiety in relation to the mother in the context of the father, and as I have already said, there is no evidence before me to suggest that the separation anxiety of the child either occurs or is treated in circumstances other than those involving the father. After seeing the father unexpectedly with Dr R, [Y] has recommenced bed-wetting and having nightmares.
The evidence suggests to me that there are very strong views by both these children against seeing their father. I note that they are aged 12 and nine and developing normally and appropriately for their ages.
The next consideration is the nature of the children’s relationships with each of the parents and any other significant person. Taking the latter point first, it would seem that the children, before separation, had some involvement with the paternal grandmother, and it seems further that whilst they were spending time with the father they had involvement with the paternal grandmother. The current state of the children’s relationship with her, however, cannot be determined on the evidence before me. I proceed upon the basis that the children still, more likely than not, would have positive recollections of the paternal grandmother and they are not seeing her. It would seem on the evidence before me that, other than under the father’s proposals, it would be unlikely that they would do so in the future. The arrangements for recognition contact proposed by the Independent Children’s Lawyer at a supervised contact centre may make it impractical for the paternal grandmother to attend. While this is certainly not clear on the evidence, the father did suggest that the paternal grandmother now has some mobility difficulties and is elderly. Although there is another immediate family member, a brother of the father’s, there is no evidence before me of his involvement at any point with these children from which I could make any assessment that there is any real relationship between them and their paternal uncle.
So far as the relationship with the mother is concerned, I am satisfied it is a good, close and loving relationship.
As I have already indicated, the children’s relationship with the father is significant, but for all the wrong reasons. It is a strongly negative one. The children strongly reject him. Both children have expressed hatred of the father, [X] to Dr R and [Y] to the psychologist she was seeing in 2007 and 2008.
In relation to the next consideration, the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent, I am satisfied that the mother has facilitated and encouraged the children’s relationship with the father until Easter 2008. Even after the bloody incident in November 2005 and the extortion attempt at the TAB in April 2007, the mother, despite there being ample grounds for her to have real concerns for the children’s welfare with the father, nonetheless continued to facilitate the father’s time with the children, including overnight time. The father’s contentions that the mother has blocked his time with the children simply do not stand up to scrutiny at least up to Easter 2008.
It is a different situation since Easter Sunday 2008. The mother clearly has not facilitated a relationship between the children and the father since then. As [X] told Dr R, the mother told him everything. The mother has made it clear to the children that she has had enough herself. The children are closely aligned with the mother, they have a close relationship with her, they look to her for their security and protection, and that is a particularly significant matter for [Y]. It would be surprising, in the circumstances, if the children did not take account of the mother’s position in forming their own view. That is not to say that the views that the children expressed are simply parroting something they have been told to say.
I am satisfied that the mother was justified, in the circumstances, in stopping the father’s time with the children after Easter 2008, but she has then further exposed the children to parental conflict by, according to [X], telling them everything. It was not necessary to do that and certainly went further than was necessary to protect the children and it was harmful to them. It was also harmful to the children’s relationship with the father, but I accept that at the time it occurred that that relationship was already, more likely than not, fatally fractured.
So far as facilitating the relationships are concerned, on the father’s side, I note of course the text messages that he sent in 2008 that certainly went well beyond the loving wishes that he said they contained, but in the circumstances I am not prepared to be any more critical of the father than I am of the mother for having told the children everything her after the incident at Easter 2008.
In relation to the likely effect of any changes in the children’s circumstances, including the likely effect on the children of separation from either of the parents or any other significant person, the children recommencing to see the father would clearly be against both their wishes, and on the basis of [Y]’s reaction to the father with Dr R it would cause her significant distress. Dr R described it as hysterical. While Dr R recommends recognition contact, he makes no recommendations about how [Y] may be assisted to address the root cause of her extreme reaction to the father. Nor did the father or the Independent Children’s Lawyer suggest any means of reducing [Y]’s distress at meeting the father. I am satisfied that seeing the father on any basis will be extremely distressing to [Y].
Dr R’s suggestion of recognition time with the mother present and with other members of the father’s family present is simply impractical. It is also potentially harmful to the children to suggest that they spend time with the father in the mother’s presence, given the high level of conflict between the parents. I am satisfied it would likely expose the children to further parental conflict, such as occurred on Easter Sunday 2008, with even more serious damage to the children’s relationship with the father, to say nothing of the emotional and psychological risk to the children of being exposed to parental conflict again.
The father’s proposals would similarly ignore the children’s view with no mechanism in place, other than the day time arrangement for the first three months, to overcome the children’s resistance to being with him. As mentioned, having [Y] with the father on her own each alternate weekend may exacerbate the problem, not mitigate it.
As to the practical difficulty and expense of the children spending time and communicating with both parents, beyond what I have already referred to in relation to the children’s resistance, this is not a relevant consideration.
Turning then to the capacity of each of the children’s parents to provide for their needs, I am satisfied that the mother has amply demonstrated her capacity to do so and she is doing so. However, in relation to the father, I am concerned that he has demonstrated little or no insight into the children’s needs or the effects of his actions upon them. If a person cannot appreciate a child’s needs, then it is not realistic to expect that the person will meet them.
The father, as I have said, on a number of occasions has acted quite contrary to these children’s needs and has harmed them. I particularly highlight the TAB bomb hoax incident.
In relation to the next relevant consideration, I will say nothing more about the maturity, sex and lifestyle, etcetera of the children than I have already mentioned.
As to the attitude to the child and the responsibilities of parenthood demonstrated by each of the children’s parents, I will say nothing more in detail than I have already covered.
I have concerns that one of the reasons the father wants to see these children is to put the record straight and correct all the lies that he believes the children have been told which have lead them to the current view they have of him. This is certainly anything but a child focused attitude and it fails to understand the children’s needs.
As I have said before, there is apparently no current AVO in force.
As far as s.60CC(4) and (4A) are concerned, I have already said all that needs to be said about them.

Resolution

Turning then first to the question of parental responsibility and in particular section 61DA. There has been no submission made to me directly addressing the provisions of s.61DA. It has not been put to me by anyone that I should make a finding of family violence or child abuse. Therefore s.61DA(2) is not called into play and the rebuttable presumption arises.
I am satisfied that equal shared parental responsibility would not be in these children’s best interests. There is a total lack of trust between the parents. The father is argumentative, blaming others, especially the mother, for his situation. He is lacking insight into the children’s needs. I am not satisfied that equal shared parental responsibility would do other than provide a forum from time to time for further argument and disputation between the parents, with little prospect of any consensus about major decisions for these children. As I say, I am therefore satisfied that equal shared parental responsibility would not be in these children’s best interests, and that it would be in the children’s best interests for the mother to have sole parental responsibility for them.
There is no issue that the children should live primarily with the mother.
In relation to any time that the children should spend with their father, I am highly conscious of the objects set out in s.60B(1) and the principals set out in s.60B(2) that I have already read into these reasons. I am being asked by the mother to make an order which would prevent any face to face or verbal communication in any form between the father and these children. I am being asked by the Independent Children's Lawyer to make an order that would provide the barest means for the children to have some recognition visually of who their father is and not much more. On any view of it, either proposition is an extreme step, and the Court would not take either unless clearly satisfied that there is no alternative that would better meet these children’s interests.
I accept the opinion of Dr R that it is not in the children’s best interests to spend regular time with the father as he seeks. The children are implacably opposed to it. Their relationship with the father is very negative, and I am satisfied it is likely to be made even worse by requiring them to spend time on a regular basis with him. I am not satisfied that the children will gain a benefit from pursuing an ongoing relationship with the father, where the relationship presently is meaningful but only in a negative sense. While the children formerly had an appropriate and loving relationship with the father, and in the past did want to spend time with him, they have rejected their relationship with him for the past two and a half years, and there is no sign that that will change. Nor has any mechanism to see if a change can be brought about been proposed to the Court beyond, so far as the father is concerned, going straight into spending face to face time.
I am concerned that the father has no proper appreciation of the children’s emotional and psychological needs or that he can meet them. In the past he has harmed the children emotionally and psychologically, for example through the TAB bomb hoax. He lacks insight into his own behaviour and its effects on others, including the children. He is not prepared to take responsibility for his actions and hence there is no prospect that he will change. Dr R made recommendations about what the father needed to do to address these deficits and there is no indication from the father that he accepts those recommendations. The father’s lifestyle, especially in relation to his marijuana use, his shop stealing and his relationships with various women about which, as I have already said, he was extremely evasive in cross-examination, also suggests the children’s best interests would not be served by spending regular time with their father, and that he would be a very poor role model for them if they did.
Turning then to the option of recognition contact, this suggestion, which has ultimately become a few hours twice a year at a contact centre, is not put in the way that Dr R originally recommended. He recommended up to four hours twice a year in the presence of the mother or some other familiar person and in the presence of the father’s extended family. Dr R, in cross-examination, said that if the mother was not present, and if the mother was not genuinely supportive of the children’s time with the father, it would be very difficult for his proposal to work.
The mother’s counsel submitted that the mother did not enthusiastically embrace the option of recognition contact when counsel for the Independent Children’s Lawyer put it to her in cross-examination. He said that the mother holds real concerns about the risks to the children of exposure to the father even under supervision. Counsel for the Independent Children’s Lawyer submitted that I should infer that the mother would not undermine recognition contact at a contact centre but that the mother probably is not now able to positively encourage the children’s relationship with the father. It was the father’s position that the mother has turned the children against him, as I understand it. Thus, it is common ground by all parties before the Court that the mother cannot or will not genuinely support recognition contact.
I accept Dr R’s evidence that, therefore, it will be very difficult to make recognition contact work. Dr R said that [Y] would initially show anxiety at recognition contact, but if supported by the mother and other family members present it could be managed. But the mother will not be present and there is no evidence that other family members familiar to the child will be present. Thus, I am not satisfied that [Y]’s anxiety will be managed under the proposals for recognition contact.
Based on the extremeness of [Y]’s reaction to the father with

Dr R, with no indication it is likely to reduce under recognition contact, and considering the adverse effects on [Y] of meeting the father with Dr R – the recurrence of bed-wetting and nightmares - I am satisfied that there would be significant harm to [Y] in the short, medium and long term from recognition contact.
I am satisfied, in fact, that this outweighs the potential benefits to both the children in the longer term of the recognition contact as proposed and that Dr R referred to in relation to the children’s identity formation in mid-adolescence, and I am satisfied that it is in both children’s best interests that there be no contact with their father.
However, I am satisfied that the father should receive information about the children’s schooling and health, and that he should be able to send gifts and cards on birthdays, Christmas and other special occasions, limited however, as the Independent Children’s Lawyer proposed, to the father simply expressing good wishes for the children on the particular occasion, and expressing his love for them but with nothing more.
I hesitated, frankly, even in making this order due to the father’s admission that he had used SMS messages in 2008, supposedly expressing his love for the children, as a means of harassing the mother. I am conscious that making the order proposed by the Independent Children’s Lawyer may periodically during the year simply provide the father with another opportunity to harass the mother. But ultimately on balance I am satisfied that it is in the children’s best interests that they have the opportunity if the father wishes to take it of at least receiving some tokens of the undoubted affection that he does have for his children. I therefore make the orders set out at the commencement of these reasons.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Halligan FM

Date: 20 October 2010