Crawford and Dean - [2012] FamCA 107

FAMILY COURT OF AUSTRALIA

CRAWFORD & DEAN

[2012] FamCA 107

FAMILY LAW - CHILDREN – parental responsibility – with whom children shall live and spend time - variation of previous parenting orders – prior orders provided for the mother to have sole parental responsibility for the two children of the relationship and for the children to spend supervised time with father for two hours every three months – history of family violence & drug abuse by parents – history of criminal offences committed by father – father’s rehabilitation – father now abstinent from illicit drug use & criminal behaviour – change of sufficient magnitude to warrant review of existing orders – finding father’s current behavioural standards poses no real risk of harm to the children – mother opposed to amendment of orders – mother’s influence over children’s views - children’s views considered and attributed little weight – disturbance to mother’s capacity to parent by an increased involvement of the father in the children’s lives – insufficient evidence of impairment of mother’s parenting capacity by increased involvement of father - finding children cannot foster meaningful relationship with father when they see him so infrequently and the mother is unwilling or unable to encourage the relationship – orders varied to encompass an increased frequency of supervised time spent by children with father and ultimately the dispensation of supervision – orders for father and children to attend family therapy - orders mother to retain sole parental responsibility

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Dean & Crawford [2008] FamCA 848
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
L & T (1999) FLC 92-875
Marriage of Archbold (1984) FLC 91-532
Marsden v Winch (2009) 42 Fam LR 1
Miller v Harrington (2008) FLC 93-383
MRR v GR (2010) 240 CLR 461
Rice v Asplund (1979) FLC 90-725
SPS v PLS (2008) FLC 93-363

APPLICANT:

Mr Crawford

RESPONDENT:

Ms Dean

INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore Solicitors

FILE NUMBER:

NCC

1842

2010

DATE DELIVERED:

8 March 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

7, 8 and 9 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B Kelly

SOLICITOR FOR THE APPLICANT:

MacLean Curtis & Daly Solicitors

COUNSEL FOR THE RESPONDENT:

Mr I Duane

SOLICITOR FOR THE RESPONDENT:

Adams & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms D Burns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore Solicitors

Orders

Orders 5-8 inclusive made on 25 September 2008 are discharged.
Subject to the father’s compliance with Order 6 hereof, each of the parties shall take all reasonable steps to ensure the children J, born … August 2000, and B, born … August 2002, (“the children”) spend time with the father as follows, or as otherwise agreed:
(a)For a period of six months from the date of these orders, for two hours on the first weekend of each month, supervised by staff of the W Children’s Contact Centre (“the Centre”);
(b)For a period of six further months, for four hours on the first weekend of each month, supervised by the Centre staff;
(c)Thereafter:
i)From 9.00 am until 5.00 pm on the first Saturday of each month (excluding the Saturday immediately preceding Father’s Day); and
ii)From 9.00 am until 5.00 pm on Father’s Day.
For the purposes of implementation of Orders 2(a) and 2(b) hereof:
(a)The parties shall forthwith confirm their respective registration at the Centre; and
(b)The parties shall comply with all reasonable requests and directions of staff at the Centre;
(c)The father shall bear the costs of supervision by the Centre and pay such costs promptly when required to do so;
(d)The time spent by the children with the father shall commence and conclude at the times designated by the Centre;
(e)The time spent by the children with the father may be supervised by staff of the Centre “off-site” at the discretion of the staff;
(f)The mother shall cause the delivery of the children to, and collection of the children from, the Centre at the commencement and conclusion of the time spent by the children with the father; and
(g)The parties shall forthwith provide a sealed copy of these orders to the Centre.
For the purposes of implementation of Order 2(c) hereof, the mother shall cause the delivery and the father shall cause the collection of the children at the commencement of the time to be spent with the father at Public Building 1, Hunter Valley, NSW, and the father shall cause the delivery and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the same place.
The Independent Children’s Lawyer shall forthwith:
(a)Arrange appointments for the parties and children to attend upon MK Psychologists in Town W, NSW, or an alternative comparable provider of psychological services, to commence family therapy as soon as it can be reasonably offered by the psychologists;
(b)Notify the parties of the venue, date, and time of the appointments with the psychologists; and
(c)Furnish to the psychologists copies of the following:
(i)The single expert report dated 16 September 2011;
(ii)The Court’s orders dated 25 September 2008;
(iii)These orders; and
(iv)The Court’s reasons for these orders.
Forthwith upon notification pursuant to Order 5(b), the parties shall do all such things and sign all such documents as may be necessary to ensure the attendance of the father and the children at the appointments made by the Independent Children’s Lawyer and the continuing participation of the father and the children in the family therapy with the psychologists for as long as is deemed necessary by the psychologists, and for that purpose:
(a)The father shall meet the cost of such family therapy; and
(b)The parties shall comply with all reasonable requests and directions of the psychologists.
The father shall submit to urinalysis drug screening upon the following conditions for a period of 12 months from the date of these orders:
(a)The father shall provide urine samples for testing within 24 hours of his receipt of a random written request by the mother, but not more frequently than twice per calendar month;
(b)The father must ensure that the pathology laboratory designated to conduct the testing does so in accordance with Australian/New Zealand Standard 4308/2001, and that the name and address of that pathology laboratory is notified to the mother;
(c)At the commencement of each test the father shall provide the pathology laboratory staff with photographic identification, shall submit to supervision of provision of the urine sample, and shall request the pathology laboratory staff to verify the fact of both identification and supervision upon laboratory records;
(d)The cost of testing is to be borne by the father; and
(e)The father shall serve upon the mother copies of the test results forthwith upon provision of those results to him; and
(f)The father shall irrevocably authorise the pathology laboratory to provide copies of all test results to the mother upon request.
If the father fails to submit to testing pursuant to Order 7 hereof, or a test result discloses the presence of an illegal drug in his body, then the time spent by the children with the father is suspended.
The father is restrained from consuming alcohol during any period in which the children spend time with him, and also during the period of 12 hours immediately preceding such time.
Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is restrained, without the written consent of the mother, from entering upon or approaching within 100 metres of:
(a) The mother’s residence; and
(b) Any school attended by either child.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period, or compliance with Order 5 hereof, whichever is the latter.
Any and all outstanding applications are dismissed.

Notation

(A)The Court regards the mother’s participation in family therapy pursuant to Orders 5-6 hereof as highly desirable and notes her expressed willingness to participate.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Crawford & Dean has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1842 of 2010

Mr Crawford

Applicant

And

Ms Dean

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

In September 2008 this Court pronounced final parenting orders in respect of the parties’ two children. The orders provided for the mother to have sole parental responsibility for the children and for them to live with her. The children were to spend only two hours every three months with the father, supervised in a contact centre.
In July 2010 the father filed his Application commencing these proceedings seeking to incrementally expand the time spent by the children with him and to dispense with the need for supervision. He also initially sought to share parental responsibility for the children with the mother, but subsequently abandoned that idea.
The father acknowledged his disgraceful past but asserted he had experienced real and substantial lifestyle changes in the time elapsed since the orders were last made by the Court, which warranted changes to those orders. The mother was gravely doubtful the father had experienced any real changes in his life, but even if he had, she contended that neither she nor the children could emotionally cope with the father playing a greater role in their lives.

Short background

The Court concluded the last litigation between the parties concerning the children by trial, which resulted in orders being made on 25 September 2008 providing for:
a)The mother to have sole parental responsibility for the children (Order 1);
b)Restraint of the mother from using any surname other than the father’s for the children (Order 2), and requirement of the mother to rectify the youngest child’s birth certificate and school records (Order 3); and
c)The children to spend time with the father at a contact centre within the locality of the father’s home for two hours every three months (Orders 5-8).
Mullane J delivered comprehensive reasons for those orders, which entailed criticism of both parties for their conduct and the reliability of their evidence.
The risks Mullane J considered the father then posed to the children[1] were the reasons behind the orders providing for the children to spend limited and infrequent time with the father, subject to formal supervision in a contact centre.
[1] Dean & Crawford [2008] FamCA 848 at [136], [140], [153-157], [161]
The reasons delivered by Mullane J expressly envisaged the future prospect of the restrictive orders regulating the time spent by the children with the father being expanded, depending upon the progress of the father’s rehabilitation.[2]
[2] Dean & Crawford at [124], [139], [156], [160]
The evidence of the single expert, both in her first report[3] and during cross-examination in the trial,[4] envisaged the same potential.
[3] Single expert report dated 29 August 2007, page 12; Father’s affidavit, par 131
[4] Dean & Crawford at [105]
The Court acknowledged the father was already taking steps towards rehabilitation at the time of the last proceedings,[5] but by that time he had not yet sufficiently proven himself.[6]
[5] Dean & Crawford at [91-92], [104-105], [113]
[6] Dean & Crawford at [156]
No doubt encouraged by such remarks in the Court’s judgment, the father set about diligently pursuing his rehabilitation, and some two years later in July 2010 commenced these proceedings seeking a review of the orders made in September 2008 in light of his progress.
In order to thwart the prospect of endless litigation over children, principles have evolved to permit the Court to dismiss subsequent parenting proceedings if there are no material changes in circumstances and no revelation of some previously unknown feature of material relevance since litigation was last finalised in respect of such children (see Rice v Asplund (1979) FLC 90-725 at 78,905; SPS v PLS (2008) FLC 93-363 at [1]; Marsden v Winch (2009) 42 Fam LR 1 at [48]).
The determination of whether there has been a change of sufficient magnitude to warrant review of existing orders may be made either by preliminary inquiry or by more comprehensive hearing (see Marsden v Winch at [46-47]; Miller v Harrington (2008) FLC 93-383 at [80-83]), but whichever stage the determination is made, application of the Rice v Asplund principle is merely a manifestation of the principle that the subject child’s best interests are the paramount consideration (see Marsden v Winch at [55]; Miller v Harrington at [101]) and procedural fairness should always be observed (see Marsden v Winch at [56]).
In this litigation neither party nor the Independent Children’s Lawyer sought to proceed by way of preliminary inquiry. Rather, they were mutually content to conduct a more comprehensive hearing to thoroughly evaluate the evidence adduced by the father concerning his asserted change of circumstances.

Proposal and evidence of the father

The father initially proposed a substantial revision of the existing parenting orders.
He began the trial pressing for the orders set out within his Amended Initiating Application filed on 17 October 2011, which provided for:
a)The parties to have equal shared parental responsibility for the children (Order 1);
b)The children to live with the mother (Order 2);
c)Subject to participation of the parties and the children in family therapy as recommended by the single expert witness (Order 5), the children spend time with the father:
i)For a period of six months, each alternate Saturday for four hours at the same contact centre (Order 5(a));
ii)For the next six months, each alternate weekend for four hours on both Saturday and Sunday, without supervision, but with the changeover to be effected at the contact centre (Order 5(b)); and

iii)Thereafter, each alternate weekend, for half of all school holidays, and on the Father’s Day weekend, without supervision, and with the changeovers to be effected at the contact centre (Orders 5(c),(d),(e), 6 and 8).

d)The children to communicate with the father by telephone three times per week and on their birthdays (Orders 7 and 10); and
e)Miscellaneous injunctions of both mandatory and restrictive nature (Orders 11-14).

By the end of the trial, in reliance upon the evidence he had heard from the single expert, the father abandoned his Amended Initiating Application and instead proposed orders set out in a minute of orders which was tendered.[7] Those orders provided for:
[7] Exhibit F3
a)The mother to have sole parental responsibility for the children (Order 2);
b)The children to live with the mother (Order 3);
c)Subject to the father’s compliance with drug urinalysis randomly demanded of him by the mother (Orders 13-15), the children to spend time with him on a gradually expanding basis, involving:
i)For a period of six months, four hours per month supervised at the contact centre (Orders 4(a), 5), at the father’s expense (Order 9);
ii)For a further three months, four hours per month, supervised by a person nominated by the manager of the contact centre, outside the contact centre but confined to the townships in which the parties respectively live (Orders 4(b), 6);

iii)Thereafter, from 9.00 am until 5.00 pm one Saturday per month (Order 4(c); and

iv)From 9.00 am until 5.00 pm on Father’s Day each year (Order 4(d)).

d)Authorisation of the father’s attendance at the children’s schools and extra-curricular activities (Order 18);

e)The parties and children to participate in psychological therapy co-ordinated by the same psychologists (Order 10); and

f)Miscellaneous injunctions (Orders 11, 12, 16, 18, 19, 20).

In support of his proposal the father relied upon his affidavit filed on 13 December 2011 and the affidavit of Ms H filed on 6 August 2010.
On any balanced view of the evidence adduced by the father, his life has changed enormously.
Prior to the last trial in 2008 his life had spiralled out of control. He had committed some 60 different dishonesty offences using more than 20 different aliases. In addition, he conceded use of illegal drugs, supply of illegal drugs, promiscuous bisexuality, aberrant sexual behaviour and cross-dressing. He had served several sentences of imprisonment,[8] the last of which was imposed shortly following completion of the last trial for an offence of contravention of a family violence order committed by him before the trial.
[8] Dean & Crawford at [53], [55], [57], [66], [82-83]
The father denied his commission of any offence or other anti-social behaviour concerning any person other than the mother since the cessation of his drug use in 2004.[9] On a number of occasions between 2005 and 2008 he committed breaches of family violence orders imposed against him for the protection of the mother, by communicating with her or the children. The father was not contradicted on his evidence, which I accept.
[9] Single expert report 16 September 2011, p.14
I accept the father is genuinely ashamed and contrite about his past misdeeds. He made numerous concessions of that sort to the single expert[10] and during his cross-examination. Remorse of itself tends to demonstrate introspection and reformation, but the father has done much more than merely express sincere regret.
[10] Single expert report 16 September 2011, p.14-16
Although he admits he was formerly an addict, the father alleged he has been abstinent from drugs since 2004,[11] but for one lapse in mid 2008, not 2007 as he incorrectly stated in his affidavit.[12]
[11] Father’s affidavit, pars 106, 111, 124
[12] Father’s affidavit, pars 111, 132; Dean & Crawford at [58]
The mother remained doubtful about the father’s abstinence and was reluctant to accept his evidence without corroboration. Her doubts that he could rehabilitate from drug addiction without professional intervention, as he alleged he did, were somewhat hypocritical because she later conceded she had rehabilitated from her illicit drug use in the same way. The mother expected her word about that to be accepted so, consistently, the father’s evidence could also plausibly be accepted.

As verification of his rehabilitation, the father produced some negative drug screens which were analysed in 2010.[13] Despite her scepticism, the mother did not seek more drug screens from him, either by direct request or by soliciting a court order. In a further effort to assuage the mother’s doubts the father offered to undertake future drug screens in compliance with her random requests. He is so confident of his enduring abstinence that he was content to submit to a final order suspending the time spent with him by the children in the event of a positive result. That was compelling evidence.
[13] Father’s affidavit, pars 111-112
Other aspects of his life inferentially corroborate the father’s alleged abstinence from illicit drugs. The father has undertaken work placement and is now in regular employment. His job entails assisting other people overcome their addictions and dependencies.[14] It is inherently unlikely he could hold down employment, particularly of that type, if he was still using illicit drugs. He has additionally enrolled in a tertiary education course specifically to enhance his skills in that form of work.[15]
[14] Father’s affidavit, pars 49-51, 92-94, 100-104
[15] Father’s affidavit, par 156
Since late 2008 the father has attended and completed a considerable array of self-improvement courses, parenting courses, drug and alcohol rehabilitation courses, spiritual courses, and first aid courses.[16] However, not all of the advances made by the father constitute a change of circumstances, because some were achieved before the last trial. For example, the Court noted in the 2008 proceedings that the father had established a relationship with a pastor, sought out assistance from his family support worker, undertaken some self-improvement courses, and attained Housing Commission accommodation.[17]
[16] Father’s affidavit, pars 15-17, 20-21, 30-48; Single expert report 16 September 2011, p.14
[17] Dean & Crawford at [91-92], [104-105], [113]; Father’s affidavit, pars 11-12, 18-19, 25
The home the father acquired is now a stable residence,[18] which is a far cry from the mother’s estimate of the dozens of different residences they inhabited in the few years they spent together.
[18] Father’s affidavit, pars 53-57
The father now regularly attends church, and enjoys the support of a range of congregation members, friends and work associates.[19] His evidence was corroborated in various respects by his former family support worker[20] and the person who supervised the father’s compliance with his former conditions of probation,[21] both of whom the single expert regarded as “reputable”.[22]
[19] Father’s affidavit, pars 109-110; Single expert report 16 September 2011, p.15
[20] Affidavit of [Ms H]; Single expert report 16 September 2011, p.13
[21] Single expert report 16 September 2011, p.13
[22] Single expert report 16 September 2011, p.19
Despite her initial suspicion, in the face of such evidence, the mother was moved to admit in cross-examination that the father had done well. She acknowledged the positive changes in the father’s life and said “He [the father] needs credit when credit is due”. Indeed he does. It would be difficult to imagine a more genuine effort, which surely entailed considerable courage and dedication.
I am satisfied the father is now abstinent from illicit drug use, eschews criminal behaviour, and leads an honourable, simple life. He ably demonstrated material changes in circumstances since the Court last entertained the parties’ parenting dispute in 2008.
Still, as the mother’s counsel correctly submitted, admiration of the father’s efforts and sympathy for his plight does not of itself warrant a change to existing parenting orders. The changed circumstances only justify re-consideration of the existing orders. Any changes to the orders are informed by the children’s best interests.

Proposal and evidence of the mother

The mother relied upon her Response filed on 22 September 2010 in which she simply sought dismissal of the father’s application.
In evidence the mother relied only upon her affidavit filed on 16 December 2011.
As already noted, the doubts expressed by the mother in her affidavit about the father’s achievements[23] were quelled during her cross-examination, when she was impelled to admit many of the positive changes he had made in his life in recent years.
[23] Mother’s affidavit, pars 5, 39
However, the mother professed her lingering worry that the father had still not addressed “the concerns raised in [the single expert’s] report which are of a long standing nature”,[24] about which several observations must be made.
[24] Mother’s affidavit, par 6
The “concerns” of the single expert about the father to which the mother was referring was his potential diagnosis with various psychological disorders, which the single expert described in her first report. The single expert disavowed such evidence during her cross-examination at the last trial, when she learned of the mother’s mendacity which had caused her to make such erroneous diagnoses.[25] It was mischievous of the mother to rely on such disavowed evidence during the current proceedings.[26]
[25] Dean & Crawford at [101]
[26] Mother’s affidavit, par 5
It is true the single expert observed in cross-examination that the father had still not undertaken any “deep psychological work” to overcome his past afflictions, nor had the capacity to do so in her view, but that of itself is not particularly influential. The father’s deeds speak loudly of his transformation. The single expert only said completion of such psychotherapy would afford a greater degree of confidence that the father would not relapse. Whilst such a risk can never be entirely eliminated, the father’s efforts to date demonstrate that the risk of relapse is substantially abated.
Regardless of the father’s advancement, the mother contended she remained concerned about her capacity to cope emotionally with any increased time spent by the children with the father.[27]
[27] Mother’s affidavit, par 39
Moreover, the mother asserted her worry the children may be emotionally damaged by spending increased time with the father.[28] Although she conceded the eldest child now seemed to have accepted the arrangements for him to see the father,[29] she alleged the youngest child has not.[30]
[28] Mother’s affidavit, pars 38-39
[29] Mother’s affidavit, par 27
[30] Mother’s affidavit, pars 29, 38

Proposal of the independent children’s lawyer

The Independent Children’s Lawyer did not indicate any preliminary views she held about the case. It was not until final submissions that she tendered a minute of orders proposing that the Court make only interim orders, the effect of which were to require:[31]
[31] Exhibit ICL1
a)The children to spend time with the father:
i)Until the commencement of family therapy, for two hours per month supervised by staff inside the contact centre (Order 5.1.1);
ii)Upon commencement of family therapy and for a period of six months, for four hours per month supervised by staff inside the contact centre (Order 5.1.2);

iii)For a further period of six months, for four hours per month supervised by staff outside the contact centre (Order 5.1.3);

iv)For a further period of six months, for four hours per month, without supervision but confined to the township in which the mother lives (Order 5.2);

v)Thereafter, for seven hours per month, without supervision but confined to the township in which the father lives (Order 5.3), but not at the father’s residence (Order 5.6).

b)The parties and children participate in family therapy at the father’s expense (Orders 5.7, 5.11);

c)The father to submit to drug urinalysis at the random requests of the mother (Order 5.8); and

d)The hearing be adjourned for not less than 20 months, with liberty granted to the Independent Children’s Lawyer to re-list the matter before the Court on 7 days notice (Orders 5.9, 5.10).

The Independent Children’s Lawyer submitted that further review of the case, and in particular, evaluation of the success of the interim parenting orders and the family therapy, was the only proper way forward.
No evidence was separately adduced by the Independent Children’s Lawyer.

Evidence of the single expert witness

Dr R, psychiatrist, was appointed as the single expert witness in the last proceedings concluded in 2008. For consistency, she was re-appointed as the single expert witness in the present proceedings.
Her professional credentials are impressive and her expertise undoubted.
The single expert compiled two reports – one for each trial.
The first report was prepared on 29 August 2007 and the second on 16 September 2011.
The single expert was cross-examined at each trial.
Although the single expert initially considered the mother suffered from post-traumatic stress disorder,[32] she resiled from that diagnosis when facts which had earlier been misrepresented to her were corrected at the first trial, and she considered the mother’s mental state “might not such a strong factor (sic)”.[33]
[32] Single expert report 29 August 2007, p.5, 11
[33] Dean & Crawford at [101]
During her cross-examination at the first trial the single expert recanted from her initial recommendation against any interaction between the children and the father,[34] which had been premised upon the misrepresentations. Her revised recommendation was for supervised interaction to occur between the children and father at a contact centre once every three weeks, with a cautious view to expansion of that interaction in the absence of any relapse by the father.[35] Ultimately, the Court did not completely embrace that recommendation, ordering supervised time once every three months rather than once every three weeks.
[34] Single expert report 29 August 2007, p.12
[35] Dean & Crawford at [103], [105]
The single expert conferred with the parties again in August 2011 to compile her second report.
The single expert was then attuned to the mother’s elevated anxiety[36] and the father’s improved functioning and insight.[37]
[36] Single expert report 16 September 2011, p.18
[37] Single expert report 16 September 2011, p.19
The single expert posed herself the question:[38]
Has [the father] made sufficient changes to support him taking a more prominent place in the boys’ lives?
[38] Single expert report 16 September 2011, p.19
In answer, she enumerated the “pros” and “cons” and then determined the question in the affirmative.[39]
[39] Single expert report 16 September 2011, p.20-21
However, the single expert’s recommendation to expand the time spent by the children with the father and to eventually dispense with the need for supervision was expressly subject to several conditions. The first was participation by the parties and children in “family therapy”. The second was the imposition of a graduated regime extending over a period of many months. The third was to vest in the sole discretion of the appointed family therapist the decision about if and when supervision could be dispensed with. The fourth was to make the children responsible for deciding if and when they should spend overnight time with the father.
When it was made clear to the single expert during her cross-examination that it was unlikely the Court would abdicate its responsibility to make crucial decisions in the children’s best interests, such as the dispensation of supervision and the expansion to overnight time, by leaving such decisions to the children themselves and to unknown and untested third parties, it became apparent to her that reconsideration of her recommendations was necessary.
The recommendations of the single expert vacillated during cross-examination. The single expert’s misgivings about her evidence were such that she initiated contact with the Independent Children’s Lawyer at the conclusion of cross-examination to indicate revision of her opinions. As a consequence, she was re-called for further cross-examination.
Initially, the single expert thought final orders were necessary to bring the litigation to a conclusion, for otherwise the anxiety of the parties and children would remain unacceptably elevated. Later, she thought it was “perhaps” preferable to make only interim orders in order to test the amended parenting regime. When re-called, the single expert first expressed a preference for interim orders to be made with a further psychiatric review within one to two years, asserting that the stress of ongoing litigation was a price worth paying to ensure the long-term interests of the children. She did not however adhere to that opinion.
The single expert initially considered the parenting regime should be amended to permit the children to progress to spending unsupervised time with the father during the day in a public setting. She was unwilling to recommend expansion of the regime beyond that point without further psychiatric evaluation. Following her re-call, the single expert altered her opinion and said that if final rather than interim orders were made she would not recommend progression of the parenting regime beyond the children spending only reasonably regular supervised time with the father.
The foundation of the single expert’s change of mind was her concern that the father would abandon hope of an orthodox family relationship with the children if restrictive orders were made on a final basis, which could trigger his relapse and lead him to harm the children either physically or emotionally. When the single expert was apprised of the revised final orders proposed by the father,[40] which were reasonably restrictive, she confessed surprise and admitted she may have misread the level of risk posed by the father. In light of that development the single expert was pressed about her preference between, on the one hand, final orders, and on the other, interim orders with a subsequent psychiatric review. She was reluctant to express a preference. Her ultimate opinion remained quite opaque.
[40] Exhibit F3, Orders 4-7
Such an overview of the evidence is not intended as criticism of the single expert, who deserves commendation for her diligence and integrity in drawing her indecision to the attention of the parties and the Court. Rather, it demonstrates the equipoise of countervailing considerations presented by the case. Not even the highly qualified and experienced single expert could see clearly through the labyrinth. It necessary follows from the single expert’s uncertainty that caution must attend reliance upon any particular aspect of her recommendations.
In a moment of unguarded candour the single expert said, in relation to the idea of the reprieve offered by an adjournment following the making of only interim orders, words to the effect “I’m wishing everything to be complete and go away”.
Indeed, it would be much easier for the single expert if the parties could settle their differences of opinion and reach consensus. It would also avoid the need for judicial determination. Unfortunately, the reality is they will not. The parties have been progressively litigating these issues since 2004. Deferring determination of the case by making only interim orders and soliciting further psychiatric evaluation would probably only compound the problem.
There was one relative constant in the single expert’s opinions. She considered that if the 2008 orders remained unchanged then the children would be unable to forge meaningful relationships with the father. Whether the quality of their existing relationships with the father would then remain static or degrade remained a point of conjecture though. The single expert said “potentially”, and then later “probably”, that at least the youngest child would become fixated on rejecting the father.

Relevant parenting law

Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of children – primary considerations

Section 60CC(2)(a)

The children both have meaningful relationships with the mother. There is no dispute that situation must continue and the orders ensure that it does.
The children each have different qualitative relationships with the father and the parties have disparate views about whether the children will benefit from development of those relationships, and if so, how that should be achieved.
When the parties separated in about September 2004 the children were aged only four and two years respectively. Orders were made in late 2004 providing for the children to spend some time with the father each alternate weekend, but those orders were suspended in March 2006 and the children did not see the father again after that time[41] until after the last orders were made in September 2008. Since then the children have only seen the father nine times under supervised conditions at a contact centre.[42]
[41] Dean & Crawford at [5]-[7]
[42] Father’s affidavit, par 78
The youngest child expresses resistance to spending time with the father, but the eldest child is more ambivalent. Even the father recognises that the children encounter difficulty in committing to the expenditure of time with him, as he sees the “confusion, anger, frustration” in them.[43] He also acknowledged their apprehension when cross-examined.
[43] Single expert report 16 September 2011, p.2

It seems readily apparent the youngest child feels the need to profess rejection of the father out of a sense of loyalty to the mother. He harbours a belief that the father hurt the mother in the past, even though he has no independent memory of such an event. I accept as correct the single expert’s opinion that the youngest child’s attitude towards the father is shaped by his knowledge of the mother’s adverse attitude towards the father and the proceedings,[44] which will be elaborated as a consideration under s 60CC(3)(c).
[44] Single expert report 16 September 2011, p.17
The eldest child feels no similar need to reject the father, but is attuned to the negativity of his mother and brother. He is uncomfortable openly expressing a contradictory positive attitude. I accept the single expert’s opinion that he is anxious about the conflict.[45] However, when he feels he has permission to express his true feelings, as occurred when he spoke with the single expert, he is content to identify the father as an integral part of his family group.[46]
[45] Single expert report 16 September 2011, p.17
[46] Single expert report 16 September 2011, p.5
The father and single expert each confirmed that during supervised visits at the contact centre both children interact warmly with the father, although the youngest child experienced occasional episodes of discontent and usually took some time to settle into the visits. The mother also conceded that was the impression she had gleaned from the contact centre reports she had read. That was also the flavour of the children’s interaction with the father under the observation of the single expert.[47]
[47] Single expert report 16 September 2011, p.7-8
Despite the mother alleging to the single expert that the children’s behaviour deteriorates around the time of visits with the father,[48] her evidence at trial was more equivocal.
[48] Single expert report 16 September 2011, p.12
The mother conceded in her affidavit that at least the eldest child is coping better now,[49] and she said in cross-examination that each visit was “slowly, slowly a little bit better”. The mother also conceded in cross-examination her awareness that the principal of the children’s school confirmed to the single expert that the children did not act any differently at school at or about times of scheduled visits with the father.[50]
[49] Mother’s affidavit, pars 18, 27, 29, 30
[50] Single expert report 16 September 2011, p.17
The mother told the single expert it would be detrimental for the children to know more of the father,[51] but she conceded in cross-examination it could be beneficial for the children to have meaningful relationships with the father, on the proviso their physical and emotional safety was ensured.
[51] Single expert report 16 September 2011, p.12
Accepting the correctness of the single expert’s opinion, as I do, that perpetuation of the existing orders will preclude development by the children of meaningful relationships with the father, and possibly even cause them to completely fail, the orders must ideally be amended to permit the opportunity for the children to each develop meaningful relationships with the father.
That ideal, however, is subject to the need to protect the children against physical and psychological harm, which may potentially arise in several ways. The first is by exposure to delinquent behaviour of the father, which is addressed as a consideration under s 60CC(2)(b). The second is by them being unable to cope with the father playing a more significant role in their lives. The third is by impairment of the mother’s parenting capacity by reason of her inability to cope with the increased role played by the father in the children’s lives and a concomitant diminution in the level of care afforded to them by her. The latter two considerations are discussed under s 60CC(3).

Section 60CC(2)(b)

Despite his reprehensible past, the father has never perpetrated or threatened physical abuse of the children. That was confirmed by the mother during the last trial,[52] and she repeated the evidence in these proceedings.
[52] Dean & Crawford at [80]
The children were however occasionally neglected because of the parties’ illicit drug use, which intermittently deprived the parties of their parenting capacity, and were also exposed to family violence between the parties. Mullane J previously summarised some types of harm to which the children were exposed by the father’s past behaviour.[53]
[53] Dean & Crawford at [80], [152]-[155]
If the father deals with the children in accordance with his current behavioural standards he poses no risk of harm to them. The risk of them suffering harm arises from his propensity to relapse. That risk can never be completely eliminated, but in recent years the father has accomplished sufficient improvement in his life to warrant assessment of the risk in quantitative terms as relatively contained.
When pressed by the single expert to articulate her “specific fears” about the father the mother replied that she “did not know”, but added he “could do something stupid to them, hurt them really bad”.[54] In all probability, the mother could not give the single expert a convincing answer because there was none to give. The mother was confronted with much the same question in cross-examination. She was asked what she thought the father might actually do to the children and she replied with words to the effect “He’s got the gift of the gab. All the lies and dishonesty. He can tell lies and get aggressive”. Her answer about the father’s propensity to tell lies hardly seemed responsive to the question about how the father might harm the children.
[54] Single expert report 16 September 2011, p.12
The risk formerly posed by the father has largely dissipated and only the mother’s fear remains, which now lacks a sound objective basis.
The imposition of supervision upon the time spent by the children with the father for a further period of 12 months is designed to attenuate the residual anxiety of the children and the mother. It offers the additional advantage of ameliorating the already diminished risk of the father’s relapse for that additional period.

Best interests of children – additional considerations

Section 60CC(3)(a)

The youngest child is boldly critical of the father, but his views are clearly shaped by his awareness of the mother’s negativity about the father. The youngest child refuses to call the father “Dad” and insists on referring to him by his first name. He is aware the father wants to see more of the children but the mother does not want that. He expressed a desire to see “much less” of the father when discussing the issue with the single expert. He wanted a message conveyed to the Court that he no longer wanted to see the father.[55]
[55] Single expert report 16 September 2011, p.3-4
The youngest child is still too young to appreciate the emotional consequences of his stated wish being obeyed. He is also still too immature to understand the dynamic which induces his sense of loyalty to the mother and causes him to simply express views consistent with those he believes she holds. Inferentially, the youngest child feels under pressure to adhere to his stated resistance to the father, which is evident from his ability to occasionally enjoy his interaction with the father.
I repose no weight in the expressed views of the youngest child.
The eldest child prevaricated when asked about the father by the single expert. He initially stated a wish to see more of the father, contemplating weekly visits and monthly overnight stays. After acknowledging his brother did not like the father, he then progressively resiled from his initial statements saying overnight stays should only occur once every two months, and then concluded by saying he did not wish to go to his “father’s place” at all. When offered the opportunity to do so free from criticism, the eldest child was happy to include the father as part of his family group.[56]
[56] Single expert report 16 September 2011, p.5
The eldest child is under pressure to conform with the adverse sentiment about the father he perceives in his younger brother and the mother. Despite the more positive comments he made in private to the single expert, in the presence of the mother and youngest child he meekly agreed with the youngest child’s statement that he would not go to the father’s home.[57]
[57] Single expert report 16 September 2011, p.6
The mother asserted the eldest child functions intellectually at a level several years below his chronological age,[58] which fact was uncontroversial. That explains why the youngest child tends to take the lead and the eldest child tends to be compliant.
[58] Single expert report 16 September 2011, p.2
Because of the eldest child’s diminished maturity and his equivocation I do not repose any weight in his expressed views.
Despite the different sentiments expressed by the children, the single expert strongly recommended that the parenting orders not differentiate between them and that they be treated equivalently. Neither party nor the Independent Children’s Lawyer contended otherwise, and I accept the advisability of that course.

Section 60CC(3)(b)

The children have no relationship with extended members of the paternal family, but are familiar with the maternal grandparents, whom they see often.[59]
[59] Dean & Crawford at [120-121]; Single expert report 16 September 2011, p.6

Sections 60CC(3)(c), (4)

The mother vehemently denied deliberately spoiling the relationships between the children and the father. I am inclined to accept that she has not done so intentionally, but the conclusion she has done so inadvertently is inescapable.
As already mentioned, she has permitted the children to infer that she is against them spending any more time with the father. The youngest child told the single expert “[the father] wants to see us more, Mum doesn’t want him to”,[60] and then later in the mother’s presence “Mum will not allow it [the children to go to the father’s home], neither would I”.[61]
[60] Single expert report 16 September 2011, p.3
[61] Single expert report 16 September 2011, p.6
The youngest child’s impression about the mother’s attitude is undoubtedly correct and it is easy to discern how he acquired that impression.
On 7 June 2009 the mother instructed the children to hand-signal the contact centre staff if they felt uncomfortable while visiting with the father. On 5 December 2009 the mother reminded the children to ask the contact centre staff to telephone her if they were not comfortable with the father.[62] The children would clearly have understood the implicit message, that they were expected by the mother not to feel comfortable with the father.
[62] Exhibit F2
The mother has also allowed uncertainty to creep into the children’s lives about their connection to the father. At the contact centre on 5 September 2009 the youngest child referred to the mother’s partner as “my Dad”, which caused the father to correct the children that he was their father.[63] Even when interviewed by the single expert in August 2011, the eldest child referred to the father as “our old Dad”.[64] The mother informed the single expert that she left it to the children to decide how they referred to the father.[65] It is unlikely the children would use names indicating replacement of the father as the father-figure in their lives without at least tacit approval of the mother.
[63] Exhibit F2
[64] Single expert report 16 September 2011, p.5
[65] Single expert report 16 September 2011, p.12
At the contact centre on 6 March 2010 the children both wrote their surnames as “[Dean]” in the presence of the father, who explained to them their surname was “[Crawford]”. The eldest child informed the father the mother told him “[Dean]” was his surname.[66] If the eldest child was truthful, the mother was acting in direct contravention of orders made by the Court in September 2008.[67] Even when interviewed by the single expert in August 2011 both children still used the surname “[Dean]”.[68] The mother’s correction of them in the presence of the single expert must have been contrived. I do not accept the children have defiantly used the surname “[Dean]” contrary to the direct and repeated instructions of the mother to use the surname “[Crawford]”.
[66] Exhibit F2
[67] Orders 2-3
[68] Single expert report 16 September 2011, p.6
On 4 June 2011 the youngest child called the father “fat guts” and said to him “You’re not our dad after what you done to mum”. When asked who had told them so the youngest child replied “mum did and she never lies”.[69]
[69] Exhibit F2
The youngest child assumes that the father did “something terrible” to the mother.[70] The mother has never given him specific detail of the parties’ past conflict, but nor has she corrected him or re-assured him that the relationship between the parties is not a matter about which he should concern himself. It simply suits the mother for the children, and particularly the youngest child, to be allies in her opposition to the father.
[70] Single expert report 16 September 2011, p.7
The children could be in no doubt that the mother strongly objects to them receiving gifts from the father. The mother informed the contact centre staff in the presence of the children that the father was not to give the children presents “because that is the Court order”.[71] There was no such Court order. The youngest child also told the father at one visit that the mother had disposed in the rubbish bin of a photo previously given to the children by the father.[72] If that is true it reflects very poorly upon the mother. Even if it is untrue, as the mother said it was, it is indicative of the children’s perception of the mother’s attitude.
[71] Exhibit F2
[72] Exhibit F2
Amazingly, the mother asserted in cross-examination she did not know whether the youngest child “pick[ed] up his views about the father from [her]”. She also said “I have no influence whatever over [the youngest child’s] little mind”. If that evidence was a truthful reflection of the mother’s beliefs it betrays an extraordinary lack of insight. As the single expert logically observed, the youngest child’s sense of alarm about the past could only have its origin in the mother and maternal grandparents because he has no independent recollection or knowledge of that history.
In 2008 Mullane J found the mother resolute in her hostility to the father and her opposition to the children spending time with him.[73] When conferring with the single expert in August 2011 the mother was steadfast in her opposition to the children spending any unsupervised time with the father.[74] Her most recent evidence was of the same ilk. Her attitude is now so entrenched that it is unlikely to change. She will likely remain opposed to the children’s enjoyment of relationships with the father.
[73] Dean & Crawford at [76]
[74] Single expert report 16 September 2011, p.11-12
The mother’s unremitting negativity about the father is liable to cause the children emotional harm. As the single expert opined in her first report:[75]
[The mother] needs to find something positive about [the father’s] family to allow the boys to gain a positive identification with their father’s family. They do not need to believe half of their heritage is too bad to be known as there is a risk they will then locate this badness in themselves.
[75] Single expert report 29 August 2007, p.11
The single expert’s opinion has not changed. In her most recent report she stated it would be an advantage for the father to play a more significant role in the children’s lives because they could “reality check” the father and know he is “not a monster”, know they are loved and wanted by him, deal with their “identificatory (sic)” issues more fully, and develop a fuller relationship with him.[76]
[76] Single expert report 16 September 2011, p.20
The children cannot foster meaningful relationships with the father when they see him so infrequently and the mother is unwilling or unable to encourage the relationships. The only way to neutralise the mother’s influence is to amend the parenting regime to carefully expand the time spent by the children with the father and loosen the restrictions which inhibit the normality of the manner in which they interact with him.

Section 60CC(3)(d)

The incremental increase in the time spent by the children with the father is unlikely to have any deleterious effect upon them. Such a change is consistent with the single expert’s written and oral opinions and recommendations.
Despite the equivocation of the single expert’s evidence about the advisability and effects of the removal of supervision, I am satisfied on the available evidence that dispensation with supervision after the elapse of a further year will not likely cause the children any disturbance.
The mother’s stated fear about the adverse effects upon the children[77] is unfounded. She had little option but to concede in cross-examination that the children – more particularly the eldest child, but also the youngest child – had interacted warmly with the father and enjoyed physical intimacy with him at the contact centre. They should be afforded the opportunity to develop those relationships.
[77] Mother’s affidavit, par 38

Section 60CC(3)(e)

There is little practical difficulty or expense in implementing the new orders. The mother is required to drive to the contact centre 12 times instead of four times over the next year, but that is hardly onerous even though it is a one hour drive between her home and the centre. I do not accept the single expert’s impression that such extra journeys to the contact centre will be “onerous” for her.[78] The additional burden is really no more than an inconvenience. Nor is the extra travel burden likely to cause the mother undue expense.
[78] Single expert report 16 September 2011, p.18
Once the children begin to spend monthly unsupervised time with the father, after the introductory phase of 12 months is concluded, the travel burden falls upon the father. He is required to travel to and from the township in which the mother and children live in order to implement the orders. That is not unduly burdensome for him either, given that the return journey will occur only once per month.

Section 60CC(3)(f)

The central plank of the mother’s case was really that she would be so disturbed by any increased involvement of the father in the children’s lives that her ability to care for the children would be impaired.
There is little doubt the mother is emotionally fragile. Her tearful demeanour when giving evidence was testament to the single expert’s opinions about her instability.
The mother has previously consulted her general practitioner, a psychiatrist and a psychologist about her psychological health and has been prescribed anti-depressant medication. The evidence was less than definitive, but it seems the mother continues to use such medication,[79] even though she told the single expert she did not consider she was depressed.[80] However, in August 2011 her general practitioner told the single expert that the mother was depressed and her psychologist told the single expert she was “up and down”.[81] On the basis of those reports and her own observations the single expert concluded the mother’s mental state was “unstable”.[82]
[79] Mother’s affidavit, pars 36-37
[80] Single expert report 16 September 2011, p.11
[81] Single expert report 16 September 2011, p.11, 13
[82] Single expert report 16 September 2011, p.18
The mother will certainly be distressed by the orders which make provision for the children to spend time with the father monthly instead of quarterly, for increased hours, and ultimately without supervision. But that is not determinative of the dispute. Distress is one thing, but distress of such severity that renders the mother emotionally dysfunctional and deprives her of parenting capacity is quite another.
The only evidence the mother adduced on the issue was contained to a line in her affidavit, where she deposed:[83]
I am …very concerned about my ability to cope emotionally with any increase in time.
[83] Mother’s affidavit, par 39

Although the mother only deposed to her concern about an increase in the time spent by the children with the father, I impute that she is no less concerned about the dispensation of supervision.
The mother did not seek to corroborate her terse statement of “concern” with any evidence from her treating doctors or psychologist about the extent or repercussions of the emotional deterioration she would likely experience in the face of orders providing for increased involvement of the father in the children’s lives.
The father conceded both to the single expert[84] and in cross-examination that the mother would be genuinely worried about any increase in the time spent by the children with him and the dispensation of supervision, but his concessions do not take the matter much further. They tend only to corroborate the honesty of the mother’s apprehension, not the validity or degree of the mother’s fears.
[84] Single expert report 16 September 2011, p.15, 16
The only directly pertinent evidence offered by the single expert was:[85]
[The mother’s] capacity to cope with alterations to the current parenting orders is limited by her vulnerability to stress, with her parenting likely to be compromised with any significant deterioration in her mental health.
and:[86]
[The mother] is further stressed [by the prospect of an altered parenting regime] and any distress destabilises her mental health and parenting.
[85] Single expert report 16 September 2011, p.18
[86] Single expert report 16 September 2011, p.20
The single expert’s evidence on that issue was not elaborated. Consequently, there is no evidence explaining or quantifying how “limited” the mother’s capacity to cope is likely to be, how substantially or minimally “compromised” her parenting capacity is likely to be, how “significant” the deterioration in her mental health is likely to be, and the extent to which her mental health and “parenting” would be “destabilised”.
Those are issues which properly fall within the embrace of expert evidence and are pivotal to the mother’s case. The paucity of evidence precludes rational inferences being drawn about those issues and the Court cannot speculate.
Apart from the lack of probative evidence, the case mounted by the mother does not withstand the test of logic. The father’s past behaviour, of which the mother is so apprehensive, virtually all occurred prior to their separation in late 2004. In submissions the mother’s counsel referred specifically to some of the findings of Mullane J about events antecedent to their separation. The parties’ interaction since then has been rare. As was submitted by the father’s counsel, in full knowledge of those events the mother agreed to parenting orders in late 2004 under which the father shared parental responsibility for the children and the children spent unsupervised time with him for a number of hours each alternate weekend.
In fact, the mother testified in the last proceedings that she was “pushing for the boys to see [the father]” and she was “happy for [the children] to see [the father]” after those orders were made in 2004.[87]
[87] Dean & Crawford at [74]
It is illogical to assert that the very same historical events now justify orders providing for the children to spend time with the father much less frequently and only under supervision when the mother was previously content for the children to interact so freely with the father and there was no evidence of any intervening event explaining her change of heart.
Mullane J previously found as a fact that the mother’s professed fear of the father was “significantly exaggerated”.[88] Her professed fear of the father certainly did not prevent her from initiating contact with him to discuss the children. She previously telephoned him whilst she had the protection of a family violence order and lied about that to the single expert, denying she had done so.[89] During her most recent cross-examination the mother was impelled to concede she had again telephoned the father in December 2010 to discuss the children and these proceedings.
[88] Dean & Crawford at [71]
[89] Single expert report 16 September 2011, p.12
Although the mother has sought professional assistance to manage her psychological instability, she conceded in cross-examination she did not consult her general practitioner about referral to a psychologist until June 2010. By that time, the children had been spending supervised time with the father for over a year and the father had not yet commenced these proceedings. The motive for the mother’s solicitation of professional assistance was probably not therefore the children’s visits with the father or the prospect of the father playing an expanded role in their lives.
The mother’s stated views during cross-examination changed to some extent. At first she said the current arrangement should continue until the children were old enough to make their own decisions about the nature of their interaction with the father, but then she said the current arrangements should continue for another two years. Her mind was therefore open to the prospect of the children spending increased time with the father at some point, even though she remained staunchly opposed to the relaxation of supervision until the children attain their majority.
By reason of the lack of probative evidence, the illogicality of the mother’s position and the mother’s prevarication, I am not satisfied the mother will be so distressed by the amended orders that she will become dysfunctional and the children’s care will be compromised as a consequence. That was the submission of both the father and Independent Children’s Lawyer, which I accept.
There is, however, a probable limit to the mother’s tolerance. I am satisfied she could not likely cope with wholesale and immediate changes to the existing parenting regime. It would be beyond her capacity to comply with a regime under which the children spend unsupervised “substantial and significant time” with the father, as that phrase is defined in the Act. Implicitly, the father recognises as much. No doubt that understanding helped shape the nature of the more modest final orders he proposed. The recommendations of the single expert also tacitly acknowledged the limits of the mother’s tolerance.

Section 60CC(3)(g)

The past lifestyle of the parties, which attracted such harsh criticism from the Court in the last proceedings, is now a matter of only historical significance. Neither party now leads a lifestyle inimical to responsible parenting.
No other aspect of the parties’ maturity, sex, or background was contended to be relevant.

Sections 60CC(3)(h), (6)

Neither party identifies the children or themselves as Indigenous Australian.

Sections 60CC(3)(i), (4)

The mother’s attitude to the children and the responsibilities of parenthood is deficient for the reasons already discussed under s 60CC(3)(c).
It was not contended that the father’s current attitude to the children and the responsibilities of parenthood was wanting.

Section 60CC(3)(j)

The history of family violence involving the parties was the subject of extensive comment in the last proceedings. There is no need to repeat it. However, the parties have had no personal interaction for years. There is no evidence of either party’s involvement in any family violence since the time of the last proceedings.

Section 60CC(3)(k)

The mother obtained a family violence order against the father for her protection in December 2004 and progressively varied or extended it without interruption. The current family violence order will expire on 25 February 2012.[90] Even while it prevails, its terms are not inconsistent with the parenting orders.
[90] Exhibit F1

Section 60CC(3)(l)

The Independent Children’s Lawyer advocated for the Court to make only interim orders, to test the greater level of involvement of the father in the children’s lives, followed by further psychiatric review at the conclusion of the lengthy adjournment period of some 20 months.
Neither party wanted that. They each wanted the litigation finally resolved, albeit in different ways.
For reasons already explained when discussing the single expert’s evidence, there is an imperative to conclude the litigation, which has now extended over a period of approximately seven years. It is a particularly compelling feature of the case that the mutual desire of the parties coincides with that imperative. The single expert’s recommendations on the issue are unconvincing because of her vacillation. The proposal of the Independent Children’s Lawyer to keep the litigation alive for another couple of years, with the potential for even more controversial expert evidence to be challenged and evaluated is unattractive. The children’s best interests will not be served by perpetuation of such uncertainty. Nor will the parties’.
The Court’s attention was drawn to Full Court authority suggesting that finality, although desirable, cannot always be wisely achieved in one step (see Marriage of Archbold (1984) FLC 91-532 at 79,309-79,310). That is occasionally so, but those observations were made in the context of disintegration of the parents’ relationship relatively recently before the trial, making a final adjudication about the long term interests of the children difficult. That factual background hardly bears resemblance to the interminable controversy that has prevailed in the lives of these parties and children, who have now endured two final trials and several different parenting regimes over many years.

Section 60CC(3)(m)

The parties and Independent Children’s Lawyer did not submit that any other fact or circumstance was relevant to determination of the proceedings.

Parenting orders

The presumption of equal shared parental responsibility does not apply because of the finding of the Court in 2008 about the commission of family violence (s 61DA(2)).
At that time Mullane J found that the parties were unable to co-operate, which rendered equal shared parental responsibility for the children unworkable.[91]
[91] Dean & Crawford at [166]
During cross-examination in the present proceedings the father conceded his proposal for the allocation of equal shared parental responsibility was premature. He said he would like to seek advice from his legal representatives before deciding whether to withdraw that proposal. The father later submitted a revised minute of orders to the Court, which in part provided for the mother’s retention of sole parental responsibility for the children,[92] indicating his final decision on the issue.
[92] Exhibit F3, Order 2
The Independent Children’s Lawyer advocated for the mother to retain sole parental responsibility,[93] which of course was also the mother’s position.
[93] Exhibit ICL1
The parties remain hopelessly estranged. There is no realistic prospect of the mother engaging with the father in a constructive dialogue about matters of long-term importance to the children. The sentiments expressed by the father to the single expert about his wish for that to occur[94] are no doubt genuine but inevitably forlorn.
[94] Single expert report 16 September 2011, p. 16
The mother must retain sole parental responsibility for the children, as was the case in the prior proceedings in 2008.
In those circumstances, the Court is not mandated to consider the alternative options of the children living with the parties for equal time or living primarily with one party and spending substantial and significant time with the non-residential party.
In any event, the consistent views of the parties, the Independent Children’s Lawyer and the single expert were that either of those alternatives was far beyond the purview of the evidence. The point of the proceedings was revision of the circumstances under which the children presently spend restricted, supervised time with the father.
For reasons explained, the circumstances do warrant amendment of the orders made in 2008. The amendments will encompass an increased frequency of the time spent by the children with the father, a modest increase in the duration of time spent by them with him, and ultimately the dispensation of the need for supervision. Those changes will be introduced gradually over a period of 12 months to facilitate adjustment to the new regime by the children and the mother.
The orders contemplate the supervised time spent by the children with the father over the introductory phase of 12 months being implemented either inside or outside the contact centre, at the discretion of the centre staff. The policy of the contact centre allows for “off-site” supervision, either pursuant to Court order or the consent of the parties. To date, the mother has refused to give her consent.[95] The orders rectify that anomaly.
[95] Mother’s affidavit, Annexure A (page 20)
The expansion of the existing regime in those ways is conditional upon the father’s compliance with random urinalysis for illicit drug use over the next 12 months, which arrangement replicates the father’s concessions. The drug testing orders are within the power of the Court because, even though made on a final basis, operation of the parenting orders is conditional upon compliance with the drug testing orders (see L & T (1999) FLC 92-875 at [49]-[51], [57], [60]; Jacks & Samson (2008) FLC 93-387 at [200], [201], [203], [209], [216]).
The single expert recommended that the children and the parties meet with a “family therapist” to “begin to talk about the past in age appropriate terms for [the children]”.[96] The father was enthusiastic about such a development. He has already approached the psychologists recommended by the single expert hoping to start the therapy.[97] The mother lacked the enthusiasm of the father about the implementation of such therapy. She said she did not consider the youngest child could cope with the “child-friendly narrative” that the single expert contemplated would occur in therapy. While the mother was prepared to participate, she was unsure the children would derive benefit.
[96] Single expert report 16 September 2011, p.17
[97] Father’s affidavit, pars 150-155
I accept the single expert’s evidence that the children will likely benefit from such therapy. The expansion of the existing parenting regime is therefore also conditional upon the father’s participation in the recommended family therapy. Operation of the new orders is not conditional upon the mother’s participation in the therapy, so as to avoid the prospect of the new parenting regime being frustrated by the mother’s refusal to participate in the therapy. The orders, however, still oblige her to ensure the participation of the children.
There is no doubt about the Court’s power to order the children’s participation in the therapy. The Court also has power to make the orders requiring the father’s participation in the family therapy because, as with the drug testing orders, implementation of the parenting orders is conditional upon his compliance.
Although it would patently be desirable for the mother to also participate in the family therapy, the orders do not mandate that she do so. That is to avoid any spectre of unenforceability haunting the order. Arguably, imposing such an obligation upon the mother to participate in family therapy would be ultra vires, since the order providing for the children to live with the mother is expressly not made conditional upon the mother’s submission to the therapy. The children must continue to live with her regardless. The desirability of the mother’s involvement and her expressed willingness to participate are instead recorded in a notation.
I accept the single expert’s evidence to the effect that it is important for the changes to the parenting regime to be in place before the eldest child begins secondary school.[98] However, it was revealed that the eldest child has repeated a grade at primary school and will not now begin secondary school until 2014 instead of 2013. The new parenting regime introduced by the orders therefore reaches its zenith, of the children spending unsupervised time with the father on a monthly basis, in early 2013.
[98] Single expert report 16 September 2011, p.18
The father is restrained from consuming alcohol at times proximate to the children spending time with him. The father agreed to be bound by a restraint precluding his intoxication,[99] but that is too uncertain. A complete embargo on the consumption of alcohol is certain. It is not too onerous to expect such abstinence of him once per month and it will give the mother extra comfort.
[99] Exhibit F3, Order 20
It is pointless restraining the parties from consuming “illegal substances” as the father also proposed. The law requires that of the parties without the existence of any order.
The father is restrained from attending at or near to the mother’s home and the children’s schools. The mother was distinctly uneasy about any exchanges of the children occurring in the township where she lives. An order has been made that, one year hence, exchanges will occur monthly in the township where she lives. The restraint is made so as to abate the mother’s worry, since an enforceable order will give her comfort that the father cannot lawfully attend her home or the school.
The father sought an order that would permit his attendance at the children’s schools. I decline to make such an order for several reasons. The mother’s apprehension of him is too pervasive, the order was not raised in the evidence nor debated in submissions, and such an order would permit interaction between the children and father well beyond the ambit of the revised parenting regime, which remains reasonably constricted.
The remaining orders are self-explanatory and not susceptible to sensible controversy.
In all, I am satisfied that the orders set out at the commencement of these reasons meet the best interests of the children.

I certify that the preceding one-hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 8 March 2012.

Associate:

Date: 8 March 2012