Department of Family and Community Services and Keen & Ors

[2018] FamCA 505

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY & COMMUNITY SERVICES & KEEN AND ORS [2018] FamCA 505

FAMILY LAW – CHILDREN – Parenting Responsibility – Where the presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father engaged in family violence – Where the mother would be exposed to an unacceptable risk of family violence if required to interact with the father – Where the children have meaningful relationships with both parents – Where the father lacks insight into the children’s emotional needs and the mother’s parenting capacity is limited due to her unstable psychological health – Where the allocation of parental responsibility is linked to the determination of the children’s residence – Ordered that parental responsibility for the eldest child vests in either the father and paternal grandmother or the mother and maternal grandparents, depending upon with whom the child decides to live – Ordered the mother and maternal grandparents equally share parental responsibility for the three youngest children.

FAMILY LAW – CHILDREN – With whom a child lives – Where there would be adverse repercussions for the children if the current residential arrangements changed – Where the father and paternal grandmother have not promoted the eldest child’s relationship with the mother – Where the eldest child remains opposed to residence with the mother and/or maternal grandmother – Where the views of the eldest child carry considerable weight – Concluded the eldest child may continue living with the father and/or paternal grandmother in accordance with his wishes – Where the three youngest children are settled and thriving in the mother’s primary care – Ordered that the mother and maternal grandparents decide the residence of the three youngest children in the exercise of their shared parental responsibility.

FAMILY LAW – CHILDREN – With whom a child spends time  – Where the eldest child cannot be forced to spend time with the mother – Where the evidence demonstrates the three youngest children remain at unacceptable risk of emotional harm if they spend time in the father’s care without proper supervision – Where a regime for the three youngest children to spend time with the father under professional supervision would be arduous and expensive – Where there is no suitable private supervisor – Ordered the four children spend time together in the absence of the parties each school holiday period at a contact centre – Orders made for written correspondence between children and non-residential parent/grandparents – Concluded that the manner in which the children spend time and communicate with the non-residential parent/grandparents be left to the discretion of the parties who exercise parental responsibility.

Family Law Act 1975 (Cth), ss 4AB, 60CC, 61DA

Baines & Keen & Ors (No.2) [2015] FamCA 720
Champness & Hansen (2009) FLC 93-407
H & K [2001] FamCA 687
Marriage of Bieganski (1993) 16 Fam LR 353
Moose v Moose (2008) FLC 93-375
Slater & Light (2013) 48 Fam LR 573

APPLICANT: Secretary, NSW Department of Family & Community Services

1st RESPONDENT: Ms Keen

2nd RESPONDENT: Mr Baines

3rd RESPONDENTS: Ms C Keen & Mr D Keen

Intervener: Mr B Baines

INDEPENDENT CHILDREN’S LAWYER: Ms Moore, Sharon Moore Solicitor

FILE NUMBER: NCC 89 of 2013

DATE DELIVERED: 6 July 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 12, 13, 14 June & 5 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Crown Solicitors Office

COUNSEL FOR THE 1^ST RESPONDENT: Mr Gorton

SOLICITOR FOR THE 1^STRESPONDENT: Krstina Wooi

COUNSEL FOR THE 2^ND RESPONDENT: Mr Brady

SOLICITOR FOR THE 2^ND RESPONDENT: Hunter Family Law Centre Pty Ltd

COUNSEL FOR THE 3^RD RESPONDENTS: Not Applicable

SOLICITOR FOR THE 3^RD RESPONDENTS: Not Applicable

COUNSEL FOR THE INTERVENER: Not Applicable

SOLICITOR FOR THE INTERVENER: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Moore, Sharon Moore Solicitor

Orders

1. All former orders in the respect of the following children are discharged:

   (a)       E, born … 2004 (“E”);

   (b)       F, born … 2006 (“F”);

   (c)       H, born … 2008 (“H”); and

   (d)       G, born … 2008 (“G”).

2. Whilst ever E chooses to live with the second respondent (“the father”) or the intervener (“the paternal grandmother”) they shall have equal shared parental responsibility for him.

3. The father and paternal grandmother shall:

   (a)Forthwith furnish a copy of these orders and reasons to E’s current therapist;

   (b)Take all reasonable steps to ensure E attends upon and receives psychological therapy from the therapist (or his delegate) as frequently and for as long as the therapist (or his delegate) deems appropriate for his welfare; and

   (c)Irrevocably authorise the therapist (or his delegate) to provide information to the mother and maternal grandparents (at their cost) about E’s diagnosis, treatment, progress, and prognosis.

4. Whilst ever E chooses to live with the first respondent (“the mother”), the third respondents (“the maternal grandparents”), or any other third party, the mother and maternal grandparents shall have equal shared parental responsibility for him.

5. The mother and maternal grandparents shall have equal shared parental responsibility for F, H, and G.

6. Whilst ever E chooses to live with the father or paternal grandmother, the parties shall take all reasonable steps to ensure the children spend time together as follows:

   (a)For not less than two hours at the I House contact centre in Queensland in the children’s Winter and Summer school holidays; and

   (b)For not less than two hours at the X Contact Centre (situated at W Town in NSW) in the children’s Spring and Autumn school holidays.

7. For the purpose of implementing Order 6:

   (a)The time spent together by the children shall be supervised by the staff at either I House or X Contact Centre (“the supervisors”).

   (b)The mother and paternal grandmother shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisors.

   (c)The time spent together by the children shall occur on the dates and between the times designated by the supervisors.

   (d)The mother and father shall pay in equal shares any costs due to the supervisors.

   (e)The mother (or her delegate) shall cause the delivery of F, H, and G to, and their collection from, the supervisors at the commencement and conclusion of the children’s visits together.

   (f)The paternal grandmother shall cause E’s delivery to and collection from the supervisors at the commencement and conclusion of the children’s visits together.

   (g)The parties are excluded from participation in the time spent together by the children.

   (h)The parties shall comply with all reasonable requests and directions of the supervisors.

   (i)The parties shall furnish a copy of these orders to the supervisors.

8. Whilst ever E chooses to live with the father or paternal grandmother, they shall each take all reasonable steps to ensure that E is able to communicate with the mother and maternal grandparents in the following manner:

   (a)By the mother and maternal grandparents being able to send letters, cards, and/or gifts to him on or about dates proximate to his birthday, Mother’s Day and Christmas Day, and

   (b)By them promptly sending to the mother and maternal grandparents:

   (i)Written acknowledgement of receipt of their correspondence, and

   (ii)Any letters, cards, photographs, or other written communication that E wishes to be conveyed to the mother or maternal grandparents.

9. Whilst ever E chooses to live with the father or paternal grandmother, they shall each take all reasonable steps to ensure:

   (a)E is provided with an operable mobile phone with a current telecommunication plan; and

   (b)The mother is kept informed of E’s mobile telephone number.

10. Whilst ever E chooses to live with the mother, maternal grandparents, or some other third party, the mother and maternal grandparents shall each take all reasonable steps to ensure:

    (a)E is provided with an operable mobile phone with a current telecommunication plan; and

    (b)The father is kept informed of E’s mobile telephone number.

11. The mother and maternal grandparents shall each take all reasonable steps to ensure that F, H, and G are able to communicate with the father and paternal grandmother in the following manner:

    (a)By the father and paternal grandmother being able to send letters, cards, and/or gifts to them on or about dates proximate to their birthdays, Father’s Day and Christmas Day, and

    (b)       By them promptly sending to the father and paternal grandmother:

    (i)Written acknowledgement of receipt of their correspondence, and

    (ii)Any letters, cards, photographs, or other written communication that they wish to be conveyed to the father or paternal grandmother.

12. The father and paternal grandmother are restrained from entering upon or approaching within 100 metres of:

    (a)The mother’s residence;

    (b)Any school attended by the F, H or G; and

    (c)Any venue at which F, H or G participate in sport or other extra-curricular activity.

13. The mother, maternal grandparents, father, and paternal grandmother are restrained from causing or permitting:

    (a)The children to be inflicted with corporal punishment;

    (b)The denigration of any other party in the hearing or presence of the children; and

    (c)The children to have access to any document filed or exhibited in these proceedings.

14. The father and paternal grandmother shall authorise and request the principal of any school attended by E to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to him.

15. The mother and maternal grandparents shall authorise and request the principal of any school attended by F, H or G to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to them.

16. Each party shall forthwith inform the others, and keep the others informed, in writing of their respective current postal address and mobile telephone number.

17. Leave is granted to the parties to furnish a copy of these reasons to any psychiatrist or psychologist engaged to provide any therapeutic service to any party or any child.

18. Within seven days hereof the father and paternal grandmother shall cause E to be delivered to the Independent Children’s Lawyer to have explained to him in person the effect of these orders and, if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

19. Within seven days hereof the mother and maternal grandparents shall cause F, H, and G to contact the Independent Children’s Lawyer by telephone to have explained to them, either individually or collectively, the effect of these orders and, if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

20. Pursuant to s 65DA(2) and s 62B of the Family Law Act, 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.

21. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

22. Costs are reserved for 28 days.

23. Any and all other outstanding applications are dismissed.

Notations

(A)These orders intentionally make no provision for E to spend time or communicate with the mother or maternal grandparents. If, when, and how E does so are decisions the father and paternal grandmother shall make as part of their exercise of parental responsibility for him (whilst ever he lives with either one of them).

(B)These orders intentionally make no provision for F, H or G to spend time or communicate with the father or paternal grandmother. If, when, and how they do so are decisions the mother and maternal grandparents shall make as part of their exercise of parental responsibility for them.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services Secretary & Keen and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 89 of 2013

Secretary, NSW Department of Family & Community Services

Applicant

And

Ms Keen

First Respondent

And

Mr Baines

Second Respondent

And

Ms C Keen & Mr D Keen

Third Respondents

And

Mr B Baines

Intervener

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings represent the third round of litigation under Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of four children whose ages now range between thirteen and nine years.

2. The first round of litigation was concluded by orders made in 2013 between the mother and father, with their consent.

3. The second round of litigation was concluded by orders made in 2015 following a trial involving both parents, the paternal grandmother, the maternal grandparents, and the Secretary of the NSW Department of Family and Community Services (“the Secretary”).

4. The current litigation was initiated by the Secretary in September 2016 when it became clear the 2015 orders were not working well. The same parties were involved and, just as before, all aspects of the children’s care were in dispute. To enhance the chance this litigation will finally quell the parties’ angst, the orders should be as simple as the circumstances allow and reflect the reality of their conflict rather than imply any hope it will dissipate.

Background

1. The parents began living together in Sydney in 2003, but they later relocated to the coast of NSW in 2009. They separated in June 2012 and the children remained in the primary care of the mother.

2. The first proceedings were commenced by the father in November 2012. Final orders were made in June 2013, with the parents’ consent, for the children to live with the mother and spend time with the father. Parental responsibility for the children was conferred exclusively on the mother.

3. Very shortly afterwards, in July 2013, the father retained the children and filed for fresh parenting orders when he learned of the mother’s alcoholic binge. Interim orders were made by the Local Court of NSW, suspending the June 2013 orders and providing for the children to instead live with the father (at the paternal grandmother’s home on the mid-north coast of NSW, subject to any change ratified by the Secretary). The proceedings were later transferred to the Federal Circuit Court. The mother was profoundly shocked by the children’s removal from her primary care and she moved away to live with the maternal grandparents in south east Queensland to recover her sobriety[1] and probably also her emotional stability.

   [1]Baines & Keen & Ors (No.2) [2015] FamCA 720 at [36], [105]

4. Some months later, in October 2013, the father and children vacated the paternal grandmother’s home to live in separate accommodation nearby. The evidence did not disclose whether their relocation away from the paternal grandmother’s home had the Secretary’s consent or breached the interim orders made in July 2013. They remained in his care for the next 12 months.

5. By October 2014, the father was experiencing real difficulty caring for the children alone. He threatened to “dump the children at [the child welfare authority]” because the Secretary was not providing him with the assistance he thought he needed.[2] His inconsistent evidence in the current proceedings that he has “never struggled to care for [the] children” could not be correct.[3] Soon afterwards, the Secretary removed the children from his care and placed them with the maternal grandparents in Queensland, apparently intending the children would gradually transition back into the mother’s primary care.

   [2] Baines & Keen & Ors (No.2) [2015] FamCA 720 at [97]-[101]

   [3] Father’s affidavit, para 152

6. In July 2015, final consent orders were made between the parties prescribing the time the children should separately spend with the paternal grandmother. The litigation was then concluded in September 2015. Following a trial, Cleary J made orders conferring parental responsibility for the children, initially upon the Secretary, but providing for its later transfer to the mother and maternal grandparents and ultimately to the mother alone. The orders required the children to live with the persons selected by the Secretary, which were then the maternal grandparents, but ultimately with the mother upon her acquisition of parental responsibility. The orders provided for the time spent by the children with the father to be strictly confined for 18 months, including by the professional supervision of their interaction, and then the dispensation of the supervision and expansion of the visits commensurately with the distance between the parents’ homes.

7. In accordance with those orders, the children began living predominantly with the mother in lieu of the maternal grandparents from about October 2015. The children strongly desired it and the Secretary considered she could cope.[4]

   [4] Affidavit of Ms Y, para 26

8. The Secretary commenced the current proceedings in September 2016, the catalyst for which was the mother’s admissions to hospital over preceding months for treatment of the sharp deterioration in her psychological health, apparently in response to the children’s worsening behaviour, particularly following their supervised visits with the father.[5]

   [5] Affidavit of Ms Y, paras 28-48, 170-178, 185-186

9. Interim orders were made in December 2016 expanding the children’s supervised visits with the father, with the consent of all parties.

10. In February 2017, in response to the eldest child’s violent and uncontained behaviour around the mother, his sisters, and the maternal grandparents, the Secretary urgently placed him in the paternal grandmother’s temporary respite care.[6] The Secretary imposed strict limitations upon his interaction with the father, but those arrangements were overtaken by more interim orders made in March 2017.

    [6] Affidavit of Ms Y, paras 53-59

11. In March 2017, all previous orders in relation to the eldest child (but not his siblings) were discharged. Equal shared parental responsibility for the eldest child was conferred upon the Secretary, the mother, and the maternal grandparents. He was ordered to live with the person nominated by the Secretary, which was the paternal grandmother for the time being, and she was permitted to intervene in the proceedings as a party. The orders provided for the eldest child to spend time with the father, but only under the supervision of the paternal grandmother. The parties were ordered to ensure the eldest child spends time with the mother and his siblings at the Secretary’s direction.

12. Presently, the eldest child spends much of his time with the father without any supervision by the paternal grandmother, in breach of the interim orders made in March 2017. The father and paternal grandmother live relatively close to one another in the same region on the mid-north coast of NSW. The eldest child periodically sees his sisters in Queensland but, contrary to the interim orders made in March 2017, he rarely sees the mother. The three youngest children live with the mother and the maternal grandparents in south east Queensland. They spend time with the father for several hours each month under professional supervision at a contact centre in south east Queensland and see their brother and paternal grandmother less frequently – about once every few months. The road journey between the parents’ homes is measured at about nine hours of continuous driving.

Proposals

1. None of the participants ended the trial seeking the same orders they sought at the start of the trial.

2. The Secretary abandoned the orders set out within the Amended Initiating Application he filed on 3 July 2017 and also those contained in the minute of orders he tendered at the commencement of the trial.[7] Instead, the Secretary pressed for the orders set out within the minute of orders tendered at the close of evidence.[8] In respect of the eldest child, he proposed the father and paternal grandmother share parental responsibility for him and that he live with the father, subject to the father ensuring he receives therapeutic counselling. The Secretary’s proposal was silent about what would happen if the father failed to meet the pre-condition of ensuring the eldest child’s submission to counselling. He proposed the eldest child should visit the mother and his siblings for one week in each school holiday period. In respect of the three youngest children, he proposed the mother and maternal grandparents share parental responsibility for them and that they live with the mother. He proposed that they spend only supervised time with the father at a contact centre until the mother is satisfied the father has successfully completed psychological therapy and a domestic violence education course.

   [7] Exhibit A1

   [8] Exhibit A11

3. The mother pressed for orders which represent an amalgamation of those set out within her Amended Response filed on 23 January 2018 and the minute of orders she tendered at the close of evidence.[9] She proposed that she and the maternal grandparents share parental responsibility for the three youngest children and that they live with her or the maternal grandparents. She proposed that she have the discretion to decide if, when, and how those three children spend time with the father, or alternatively, the orders should positively forbid their interaction. As for the eldest child, she proposed that the Secretary continue to share parental responsibility for him (with her and the maternal grandparents), in expectation the Secretary would then find alternate accommodation for him for about the next 12 months with someone other than the father, the paternal grandmother, the maternal grandparents, or her. After that time, she expected the eldest child would return to live with her, the Secretary would withdraw from their lives, and she and the maternal grandparents would then retain shared parental responsibility for him. Just as with the girls, she wanted the discretion to control if, when, and how the eldest child then spends time with the father.

   [9] Exhibit M2

4. The father abandoned the orders set out within his Amended Response filed on 13 December 2016 and also the orders set out in his Case Outline filed on 11 June 2018. Instead, he sought the orders set out in the minute of orders he tendered at the close of evidence,[10] but subject to the further oral amendments he made after he sacked his legal representatives immediately before final submissions commenced. He wanted to share parental responsibility for the eldest child with the paternal grandmother and for the eldest child to live with him. He conceded the mother and maternal grandparents should share parental responsibility for the three youngest children, but insisted they should live with the maternal grandparents rather than the mother. His proposal for the manner in which the children would spend time with one another and with members of the maternal and paternal families remained quite unclear. It seemed he expected the children would spend block time together during each school holiday period, alternating between his home in NSW and the mother’s home in Queensland.

   [10] Exhibit F3

5. The maternal grandparents jettisoned the application for orders set out within their Amended Response filed on 23 January 2018 and instead embraced the proposal made by the Secretary. Having followed and understood the discussion during final submissions, the maternal grandfather said he and the maternal grandmother would also accede to the concessions made by the Secretary and otherwise abide the Court’s decision.

6. The paternal grandmother abandoned the orders set out within her Response filed on 6 July 2017 and those she more recently proposed in her affidavit.[11] She pressed a case for her and the father to share parental responsibility for the eldest child and for him to live between them as he pleases. She proposed that the three youngest children live with the maternal grandparents and that they have parental responsibility for them. She envisaged the three youngest children could not live with the mother until she proves, by specialist medical assessment, her fitness to care for them. The paternal grandmother did not specify who would provide the medical opinion, who would decide whether the medical opinion was reliable, or what would be done if the parties disagreed over its validity or probative weight. Like the father, she saw no impediment to the children spending blocks of unsupervised time together with the paternal and maternal families.

   [11] Paternal grandmother’s affidavit, para 43 (on pages 18-20)

7. During final submissions, for the first time, the paternal grandmother raised the prospect of orders being made to allow or require the three youngest child to spend time with her – separately from the father. No such orders will be made. The belated nature of the proposal deprived the other parties of procedural fairness. Although orders of that sort were made in the last proceedings in July 2015, in these proceedings all parties (including the paternal grandmother) applied for all existing orders in relation to the children to be discharged. In these proceedings the paternal grandmother did not make or foreshadow any application for orders enabling any of the children to separately spend time with her in her Response,[12] her affidavit,[13] or her Case Outline document.[14] In fact, she told the Family Consultant no separate contact orders were required in respect of either her or the maternal grandparents.[15] All other parties (save for the father) were critical of the paternal grandmother and would almost certainly have taken issue with any proposal she made to separately spend time with the three youngest children. They uniformly regard her as an apologist for and complicit with the father. They would probably have cross-examined her at greater length and made submissions directed to the issue, but were deprived of the opportunity to do so because, as the penultimate speaker in final submissions, she did not raise the issue until then.

   [12] Filed on 6 July 2017

   [13] Filed on 12 February 2018

   [14] Filed on 9 March 2018

   [15] Family Report, para 38

8. The Independent Children’s Lawyer did not begin the trial with any settled proposal, but did foreshadow her formative view the orders should broadly reflect the recommendations of the Family Consultant and the proposal of the Secretary. At the close of evidence she tendered the minute of orders she sought.[16] She proposed that the father and paternal grandmother share parental responsibility for the eldest child and that he live with either one of them. She proposed that he spend time with the mother and his sisters for one week in each school holiday period in Queensland. As for the three youngest children, she proposed that the mother and maternal grandparents share parental responsibility for them and that they live with or between the mother and maternal grandparents. She proposed that no order regulate the way in which the three youngest children would spend time or communicate with the father, which decisions would be left to the mother and maternal grandparents as an incident of their shared parental responsibility.

   [16] Exhibit ICL1

Evidence

1. The Secretary relied upon the affidavit of his case worker, Ms Y, filed on 23 February 2018, together with the binder of exhibited documents referred to in the affidavit,[17] the vast majority of which were never mentioned again by any party after their tender. Why it was considered necessary to tender so many apparently unimportant documents was left unexplained.

   [17] Exhibit A2

2. The mother relied upon her affidavit filed on 16 February 2018. She did not file any affidavit by her former partner, Mr Z, despite leave being granted.[18]

   [18] Order 7(b) made 13/12/17

3. The father relied upon his affidavit filed on 16 February 2018. He did not file any affidavit by the supervisor of the contact centre used by the family, despite leave being granted.[19]

   [19] Order 8(b) made 13/12/17

4. The maternal grandparents relied upon the affidavit they swore or affirmed jointly, which was filed on 14 February 2018. They were self-represented and did not appreciate the irregularity of two witnesses jointly attesting to the truth and accuracy of an affidavit. Nothing turned on the irregularity in this instance.

5. The paternal grandmother relied upon her affidavit filed on 12 February 2018.

6. The parties and Independent Children’s Lawyer all relied upon the Family Report dated 5 December 2017.

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. 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 the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (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 significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. During the trial in 2015, Cleary J found the children “do enjoy meaningful relationships with both of their parents”.[20] By 2017, nothing had changed. The Family Consultant found the children interacted warmly with both parents.

   [20]Baines & Keen & Ors (No.2) [2015] FamCA 720 at [200]

2. Even the eldest child, who professed his dislike of the mother, “interact[ed] comfortably” with her and hugged her when they were observed together.[21] The father admitted in cross-examination the eldest child loves the mother and wants to spend time with her, but he does not consistently speak and act that way. He is only rarely coaxed to see her when he periodically visits his sisters in the paternal grandmother’s company.[22] The paternal grandmother said in cross-examination she believes the eldest child wants a relationship with the mother, but cannot bring himself to have one. In final submissions, the father and paternal grandmother both expressed or implied their belief the eldest child would likely resume visiting the mother in time, but more than enough time has now passed to test that theory. So far, they have not been able to successfully promote the eldest child’s relationship with the mother.

   [21] Family Report, paras 63, 120-121

   [22] Affidavit of Ms Y, para 140

3. The dissonance between the negative views the eldest child expresses about the mother and the positive way he is capable of engaging with her in the absence of paternal family members is an issue for later discussion in relation to the weight attached to his views (s 60CC(3)(a)) and the extent to which his expressed views are either intentionally or inadvertently influenced by the father, which is liable to reflect upon the father’s parenting capacity (ss 60CC(3)(f), 60CC(3)(i)).

4. The three younger children all expressed their desire to see the father, subject to some apprehension about him withholding them from the mother, so their views generally correlate with their happy demeanour when in his company. The mother conceded in cross-examination the girls love the father and enjoy seeing him.

5. For the purposes of s 60CC(2)(a) of the Act, the only conclusions logically open are that the children all have meaningful relationships with both parents, they derive benefit from those relationships, and the orders made by the Court should aspire to the maintenance of those important relationships, subject to the emotional stability of all being ensured. No party argued to the contrary.

Section 60CC(2)(b)

1. Allegations of child abuse and family violence permeated the evidence and should be addressed as primary considerations affecting the children’s best interests, even though they were barely mentioned at trial.

   Child abuse

2. The mother and Mr Z began cohabitation in June 2017.[23] In August 2017, Mr Z threw a rock at the second child and lacerated her scalp, which needed to be stitched. He lost his temper when the child hurtfully told him she hoped his own child, who was sick with leukaemia, would die of cancer. At the father’s insistence, Mr Z was charged with assault. The second child told the Secretary’s staff she was not scared of Mr Z and was prepared to return home. She did so and there were no other incidents of physical abuse. The Secretary was content for Mr Z to remain living within the mother’s household.[24]

   [23] Affidavit of Ms Y, para 89

   [24] Affidavit of Ms Y, paras 92-96; Father’s affidavit, para 96; Family Report, para 79

3. When the father discussed the matter with the Family Consultant in November 2017, he was still angered by the incident and the mother’s maintenance of a common household with the children and Mr Z,[25] but the Family Consultant found all three girls were quite comfortable with Mr Z.[26] Given the mother ceased her cohabitation with Mr Z in March 2018 and does not intend reconciling with him (about which the mother was not challenged in cross-examination), aside from proposing an injunction restraining the mother from leaving the children in Mr Z’s unsupervised care,[27] the father did not actively pursue the alleged risk of harm posed by Mr Z as an issue in the proceedings.

   [25] Family Report, paras 62, 135

   [26] Family Report, para 118

   [27] Exhibit F3, Order 14

4. The father alleged to the Secretary’s staff on numerous occasions throughout 2016 and 2017 that the maternal grandfather physically abused one or more of the children. His allegations were made in reliance upon reports made to him by the children in the presence of contact centre staff.[28] The allegations were investigated but not substantiated by the Secretary. In cross-examination the maternal grandfather gave credible accounts of the incidents, refuting the allegations of abuse, which evidence eradicated any scope to maintain he probably physically abused the children. The father did not ultimately invite a finding that he did, so he must have been similarly impressed by the maternal grandfather’s evidence. In fact, in final submissions, the father thanked the maternal grandfather for the assistance he gave the children.

   [28] Affidavit of Ms Y, paras 98, 233

5. The father seemed not to appreciate the irony of his former complaints about the risk of abuse posed by the maternal grandfather to the children, given the unchallenged evidence of his own physical abuse of and infliction of injury to the eldest child.[29] Despite such evidence, no party contended at trial the father posed a risk of physical harm to the children. He was certainly not seriously challenged in cross-examination with any such proposition, as procedural fairness required if it was pursued as an issue. Rather, it was only contended the children are at risk of psychological harm by reason of their exposure to his aberrant behaviour.

   [29] Family Report, para 69

6. The evidence was insufficiently strong to allow any finding that the children are at future risk of harm by reason of their subjection to physical abuse by Mr Z, the maternal grandfather, or the father.

   Family violence

7. Family violence was a feature of the parents’ relationship, both before and after their separation.

8. Prior to the parents’ separation, apprehended violence orders (“AVOs”) were made against the father for the protection of the mother and/or children in 2008,[30] 2010,[31] and 2012.[32]

   [30] Family Report, para 6

   [31] Family Report, para 6

   [32] Family Report, para 6

9. The father breached the 2012 AVO and was prosecuted for it. He pleaded guilty and was convicted, for which he was placed on a good behaviour bond. The 2012 AVO was then varied to make its terms more stringent by preventing his contact with the mother under any circumstances.[33]

   [33] Family Report, para 7

10. In 2014 and 2015, two more AVOs were made against the father for the protection of two of the Secretary’s staff members, by reason of his aggressive intimidation of them.[34] The father also bullied or harassed staff of the contact service employed by the Secretary,[35] officers at the Crown Solicitor’s Office,[36] and staff at a variety of other places.[37] Additionally, he made threats of suicide to the Secretary’s staff and the staff of a community mental health service, though it remains uncertain whether his threats were genuine or feigned to attract attention.[38] While such behaviour might not constitute “family violence” (s 4AB), it was still more evidence of the father’s propensity to express his dissatisfaction in violent or aggressive ways.

    [34] Family Report, paras 15, 23; Affidavit of Ms Y, paras 23-24

    [35] Affidavit of Ms Y, para 124

    [36] Affidavit of Ms Y, paras 161-162

    [37] Affidavit of Ms Y, para 222

    [38] Affidavit of Ms Y, paras 160, 163

11. In 2015, another AVO was made against the father for the mother’s protection.[39] Shortly afterwards, the Secretary acted to stop the children from spending any time with him due to his threat of suicide and his apparent need for admission to a psychiatric institution.[40]

    [39] Family Report, para 16; Affidavit of Ms Y, para 25

    [40] Family Report, para 17

12. The father either concealed or unreasonably minimised his violent disposition, which was objectively proven by the uncontroversial evidence. He failed to disclose other AVOs made against him for the protection of his two former domestic partners and, further, he asserted the various AVOs made for the mother’s protection were only made due to her fabricated allegations against him.[41] Those AVOs could only have been made against him if the State courts were satisfied the mother required protection from him (even if the orders were made with his consent) and, significantly, his conviction for the breach of the AVO in 2012 followed his plea of guilty. Obviously, it would be absurd if he could admit his guilt in one court and deny it in another.

    [41] Family Report, para 129; Father’s affidavit, para 106

1. The mother said in cross-examination she was still afraid of the father, even though they have barely had any contact at all over recent years. She still has recurring nightmares about him[42] and she attributes the PTSD condition with which she has been diagnosed to her past adverse experiences with him. The father agreed in cross-examination he had been “violent to and controlling of” the mother in the past and her trauma might, at least in part, be related to the way he treated her. The mother’s subjectively honest fear of the father is much more compelling evidence than his assertion she no longer has any reasonable grounds to be fearful of him.

   [42] Exhibit A9 (page 2)

2. The Act requires the Court to ensure the mother is not exposed to an unacceptable risk of family violence (s 60CG(1)(b)). She would be exposed to such continuing risk if required to deal with the father in any way, due to her persistent fear of him, notwithstanding her fear stems from his past conduct. The Act does not require any specific degree of contemporaneity between the father’s violent or threatening behaviour and the mother’s fear in order that the father’s conduct amounts to “family violence” (s 4AB). The Act only requires causation. The recurrence of her fear when confronted by him is the significant feature of the evidence. Since she remains so deeply affected by her fear of the father, the children would likely be emotionally disturbed by witnessing her anxious reaction to any form of interaction with him. The orders must therefore avoid imposing any requirement for interaction between the parents, for the benefit of both the children and the mother.

3. The father was keen to emphasise the mother was also the subject of an AVO, which was provisionally made against her for his protection in 2010,[43] but it was never converted into a court order – either on an interim or final basis.[44] He did not contend he was fearful of the mother, nor did he contend the children required any protection against harm they may suffer from exposure to any family violence committed by the mother.

   [43] Father’s affidavit, para 151

   [44] Family Report, para 6

Children’s best interests – additional considerations

1. The relatively few aspects of the evidence which engaged s 60CC(3) of the Act in an influential way were: the children’s expressed views (s 60CC(3)(a)); the father’s parenting capacity and his attitude to the responsibilities of parenthood (ss 60CC(3)(f), 60CC(3)(i)); the likely effect of any changes to the children’s current circumstances (s 60CC(3)(d)); the practical difficulty and expense of the children spending time with their non-residential parent (s 60CC(3)(e)); and the need to avert more litigation (s 60CC(3)(l)).

2. The eldest child volunteered to the Family Consultant his “very clear and strong” view he should live with the father, which desire he acted on in January 2017 by behaving in such an oppositional and violent way that the Secretary had no option but to remove him from the mother’s care and place him with the paternal grandmother.[45] His desire to live with the father was so strong that the father and paternal grandmother later acceded to his demands to live with the father every weekend, in defiance of the supervision orders made in March 2017. The eldest child said he does not presently want to spend any time with the mother, but he would like to keep that option open.[46]

   [45] Family Report, paras 93-94

   [46] Family Report, para 95

3. The eldest child’s expressed views are probably shaped by his knowledge that the father and paternal grandmother (both of whom he respects) regard the mother as an incompetent parent. They may not intend to convey that impression to him, but it would be unrealistic to expect he is blissfully ignorant of their opinions, which they have been content to repeatedly express to the Secretary’s staff, to the Family Consultant, in their evidence, and in their submissions. They told the Family Consultant they think the mother is self-indulgent and makes excuses to avoid her responsibility to care for the children.[47] The paternal grandmother disparaged her in cross-examination as a “pretty poor mother” who was unfit to care for the children alone. They both contended the three youngest children must live with the maternal grandparents because the mother is presently incapable of caring for them.

   [47] Family Report, para 86

4. Even though the eldest child’s school staff regard him as opinionated and impetuous[48] and the Family Consultant said in cross-examination he lacks the maturity to make sound decisions, his age and determination mean his expressed views carry virtually determinative weight. He now knows from experience he cannot be stopped from acting on his intention. The Secretary has been unable to extract him from the paternal grandmother’s care, even though his stay with her was originally intended to be only temporary.[49] Any prospect of the eldest child complying with orders requiring him to live with anyone other than the father, or perhaps the paternal grandmother, is extraordinarily remote. The overwhelming likelihood is he would refuse to comply with any orders which do not correlate with his views, in which event only two alternatives exist: more litigation to try and enforce any orders made to that effect or the parties must let the eldest child have his way and the orders would be flouted.

   [48] Family Report, paras 99-100

   [49] Affidavit of Ms Y, para 71

5. The second child expressed to the Family Consultant her “very clear and strong” view that the “current arrangements” continue,[50] which at the very least must mean that her residence with the mother remain undisturbed. She earlier told the Secretary’s staff she wants to remain living with the mother, even though she misses her older brother.[51] She likes seeing the father, but only with the safety of supervision, because she is worried he will withhold her from the mother.[52] The second child’s settled behaviour is consistent with her stated views. She is happy and well behaved at school within her network of friends.[53] Her age and maturity also mean her views must carry considerable weight.

   [50] Family Report, para 103

   [51] Affidavit of Ms Y, para 109

   [52] Family Report, para 104

   [53] Family Report, para 106

6. The twins both told the Secretary’s staff they want to live with the mother, even though they too miss their older brother.[54] In subsequent conversations with the Family Consultant they both expressed “very clear and strong” views they want to live with the mother, but spend more time with the father.[55] One twin was unsure about the need to retain their supervision with the father,[56] but the other would prefer it be dispensed with.[57] The twins’ maturity is age-appropriate and their views are consistent with their settlement in the mother’s care,[58] but their views carry less weight than the older children’s views.

   [54] Affidavit of Ms Y, paras 109-110

   [55] Family Report, paras 108, 113

   [56] Family Report, para 109

   [57] Family Report, para 113

   [58] Family Report, paras 111, 114

7. It may be observed at the outset that the father undoubtedly has sound capacity to meet the children’s physical and intellectual needs. The contest centred around his capacity to meet their emotional needs. Numerous features of the father’s personality curtail his parenting capacity and adversely affect his attitude to the responsibilities of parenthood. The evidence foreclosed any sense of optimism about the prospect of any appreciable improvement in his parenting capacity because of his wilful disdain of other’s perspectives and his lack of insight into the children’s emotional needs.

8. When Cleary J last determined the litigation in 2015, her Honour found in respect of the father:

   He asserts himself through his bearing demeanour and the volume and tone of his voice…the father revealed loud, overbearing aspects of his personality….he is skilled at using his physical size and commanding demeanour to bring people into line in accordance with his wishes…he understands that people find him intimidating and behaves in that way to achieve that effect.[59]

   The father has an aggressive, confronting style of dealing with people. He demands attention for himself or for his children and will not step back. He appears to regard this conduct as a strength that he is “going in to bat” for himself or the children and will refuse to be deterred.[60]

   [59]Baines & Keen & Ors (No.2) [2015] FamCA 720 at [79]

   [60]Baines & Keen & Ors (No.2) [2015] FamCA 720 at [259]

9. In an effort to educate the father about how he might overcome the shortcomings in his parenting capacity, Cleary J observed in relation to the evidence adduced in the 2015 trial:[61]

   The Family Consultant strongly recommended…that the father needed to reflect on his own reactions and escalations and consider dialectical behaviour therapy.

   …the Family Consultant was certainly concerned about limited prospects for relationships between the children and the father becoming more positive [if the father failed to submit to dialectical behaviour therapy].

   In relation to the proposed therapy, the Family Consultant spelt out exactly what would be required directly to the father in response to questions asked by him in cross-examination. Specifically, entry into a therapeutic relationship as a matter of priority with a commitment by the father for one to two years with that therapist. As part of the process the therapist would deal with emotional regulation of the father, his responses to other adults, and his responses to the children…

   A very clear way forward was recommended by the Family Consultant and it will be a matter for the father to consider whether that is the course he takes.

   [61]Baines & Keen & Ors (No.2) [2015] FamCA 720 at [152], [153], [161], [263]

10. Despite such clarity, Cleary J wondered whether the father would avail himself of the “very clear way forward” recommended by the Family Consultant. Her Honour observed:[62]

    …the father himself did not reach the point of embracing the recommendation…I could not conclude…that the father understood the level of commitment required or that he intended to be assessed and engage with the type of ongoing challenging dialectical behaviour therapy identified by the Family Consultant, with a view to changing not only his behaviour but his own self.

    That is his right and those are decisions for him to make.

    To make coercive orders [for the father to submit to dialectical behavioural therapy] would be ineffective and risky. The father might be assessed as unsuitable; could attend but not engage; merely pay lip service to something imposed not chosen; could attend, engage but not benefit.

    [62]Baines & Keen & Ors (No.2) [2015] FamCA 720 at [289]-[291]

11. How prescient those remarks proved to be. In this round of litigation, the father deposed he consulted a psychiatrist and the mental health team of his local area health service some years ago and was told he was “ineligible” to participate in dialectical behavioural therapy[63] and, more recently, he was assessed as not requiring any “treatment or support from mental health services”.[64] About two weeks after the trial was completed and judgment was reserved, the proceedings were re-listed at the father’s request and he was granted leave (over objection) to re-open his case and tender two further documents, one of which was another undated but recently procured letter from the mental health team of his local area health service, which he believed constituted a mental health assessment and verified his psychological stability.[65]

    [63] Father’s affidavit, paras 29-31

    [64] Exhibit F2

    [65] Exhibit F4

12. Understandably, the father cannot undertake therapy which government agencies are unwilling to provide him, but the father is mistaken if he thinks the evidence he adduced proves he has no behavioural condition to treat. In fact, his failure to appreciate his need for help is part of the problem. If, despite the findings of Cleary J in the last proceedings and the evidence adduced at trial in these proceedings, he lacks the insight to understand the need to curb his behaviour it is only more proof of why he needs therapy. The evidence the father adduced in an attempt to prove he does not need any treatment is not convincing for the following reasons.

13. First, he was told by his psychiatrist he is not “an eligible candidate” for therapy because he is not “mentally ill or mentally disordered”.[66] However, he deposed he voluntarily consulted his psychiatrist “on and off since 2012”[67] and he has had several brief admissions to psychiatric wards[68] so there must have been some reason behind his need for psychiatric intervention. If he had no psychological or psychiatric condition of any kind at any time which affected his behaviour then there was no reason at all for him to resort to psychological or psychiatric services. In any event, the Family Consultant involved in the last proceedings before Cleary J did not say the father was mentally ill or mentally disordered. Rather, it was suggested that therapy could address his behavioural characteristics and traits, irrespective of the label applied to them.

    [66] Father’s affidavit, Annex B

    [67] Father’s affidavit, para 30

    [68] Family Report, para 130

14. Second, the letter procured by the father from his psychiatrist was written on 10 August 2015, before Cleary J published her reasons on 31 August 2015. Therefore, when the psychiatrist expressed his opinion about the father’s ineligibility for treatment, he was ignorant of the evidence adduced at trial in July 2015 and also of the father’s suicide threats to the Secretary’s staff and the staff of the mental health service in 2016.

15. Third, the mental health team reported the father was admitted to a mental health unit for treatment in 2015 and was diagnosed at that time with an “Adjustment disorder”.[69] So now there is some evidence, obtained by the father himself, of his past positive diagnosis with some form of psychological condition which needed or was amenable to treatment. The father’s psychiatrist was seemingly ignorant of that diagnosis by the mental health team when he wrote his report.

    [69] Father’s affidavit, Annex C

16. Fourth, the letter procured by the father from the mental health team is undated, but speaks only of his mental health hospital admission up to May 2015 and his self-report of the Secretary’s case workers’ recommendation to him that he should participate in a dialectical behavioural therapy group. Again, the nurse who wrote the report was seemingly ignorant of the evidence adduced at trial in July 2015 and the report pre-dates the father’s suicide threats in 2016.

17. Fifth, the mental health assessment the father procured in about March 2018 notes he “ventilates appropriately his frustration on the on-going battle with the family law court [sic]”,[70] which is a grossly inaccurate characterisation of his demonstrated hostile attitude over many years to staff of government agencies, staff of contact services, and the other parties in these proceedings. He most certainly does not ventilate his frustration appropriately. If that is the erroneous factual premise upon which he is now, at least in part, assessed as not needing “treatment or support” then the professional opinion expressed within the assessment report is unworthy.

    [70] Exhibit F2

18. Sixth, the document most recently obtained by the father from the mental health team of his local area health service is not, contrary to the father’s belief, a “mental health assessment” at all.[71] It is only a letter which confirms he is not currently a “client” of the mental health team, his last assessment in March 2018 resulted in the conclusion he did not suffer from a mental illness “of an acute nature” suggesting his suitability for a “DBT program”, but he could apparently still undertake such a program of his own “vol[i]tion” on referral by his general practitioner to a psychologist. While the clinician who wrote that letter may have read the “court report” (which is presumably a reference to the Family Report[72]), it was still written in ignorance of the evidence adduced at trial about the father’s irascible behaviour over many years. The clinician also appears to assume the earlier mental health assessment conducted “on the 31^st March 2018” was correct and immutable.

    [71] Exhibit F4

    [72] Exhibit F5 (para 2)

19. Seventh, even if the mental health team and the father’s psychiatrist previously considered him to be ineligible for behavioural therapy administered by them or at their direction, he could have availed himself of therapy organised by the Secretary. Instead, he rebuffed the Secretary’s offer to pay for his attendance upon a psychologist for therapy and continued to deny he had any problem to solve.[73] In fact, now, the latest letter from the mental health team suggests the father can do behavioural therapy with a psychologist on referral from his general practitioner, if he wants.

    [73] Affidavit of Ms Y, paras 164-167, 230

20. Lastly, the Family Consultant in these proceedings, who is a qualified psychologist, recommended that the father undertake a program of dialectical behavioural therapy.[74] He clearly expressed in cross-examination his view that only structured therapy of that sort stands a realistic chance of enlightening the father about the destructive effects of his behaviour on those around him. That opinion was offered in the knowledge of all facts and circumstances up to December 2017.

    [74] Family Report, paras 131, 147

21. Of course, it is always possible the evidence independently adduced by the two Family Consultants in both the last and these proceedings was wrong and the father will not be assisted by his participation in dialectical behavioural therapy, but that assumption would not improve his position. On the contrary, it conceivably worsens it. If his behaviour and attitude cannot be rectified or improved by some recognised form of therapy then nothing will change. The father’s bare assertion in cross-examination of his discernible improvement without any therapy is not probative of the fact. In the current litigation, the evidence about his conduct since the last trial in 2015 revealed there was little, if any change, in his attitude. The following summary of the evidence illustrates the point.

22. Following the orders made in September 2015, the father refused to attend some supervised contact visits.[75] When he did attend supervised visits, he occasionally yelled at the children, recorded their conversations, discussed Court orders in their presence, tried to persuade them to spend unsupervised time with him in school holidays (contrary to the orders), and failed to follow the supervisor’s instructions.[76] On one occasion, he even wore a printed t-shirt emblazoned with the children’s names and the words “parental alienation”, which he at first refused to take off when directed.[77] The Family Consultant said in cross-examination that sort of manipulation of the children by the father warranted the retention of their professional supervision, which endorsed the conclusion reached independently by the Secretary’s staff.[78]

    [75] Affidavit of Ms Y, paras 126, 128

    [76] Affidavit of Ms Y, paras 122, 123, 131, 132, 133, 145, 230-232

    [77] Affidavit of Ms Y, para 134

    [78] Affidavit of Ms Y, para 146

23. Outside of the scheduled visits, the father posted videos and messages on the internet, addressed to both the children (in breach of interim orders) and the wider public, railing against their situation.[79] He also sent the children text and video-recorded messages on mobile electronic devices which depicted him distressed and weeping about his separation from them, which could only have caused them emotional disturbance.[80]

    [79] Affidavit of Ms Y, paras 210-213, 234-235

    [80] Affidavit of Ms Y, paras 214-218

24. Throughout 2016, the children’s behaviour towards the mother and maternal grandparents after their visits with the father was unruly and abusive. For example, the eldest child returned from the father to the mother and called her an “alcoholic cunt” and “lazy”, just as the father formerly did.[81] It is inherently unlikely the eldest child would address his mother in such abusive and disrespectful terms unless he felt he had the father’s permission to do so, regardless of whether the father expressly gave him such permission. Most likely, the eldest child was well aware of the father’s disrespect for the mother and acted in the way he modelled for the child. The only reasonable inference to draw is that, for one reason or another, the children were “wound up” by the father.[82] The father denied he did so,[83] but even if he does not deliberately do so his denial does not exclude the prospect he does so unintentionally, in which event he must be ignorant of the effect he has on them.

    [81] Affidavit of Ms Y, paras 170, 181

    [82] Affidavit of Ms Y, paras 135, 170-182; Family Report, para 51

    [83] Father’s affidavit, para 108

1. Significantly, the father was just as dissatisfied as the mother with the way things were going. In 2016, he felt the need to make a police report about one contact visit and complain about the mother’s parenting capacity.[84] In 2017, he objected to the use of an appointed supervisor.[85] He also repeatedly complained to the Secretary, the State ombudsman, the children’s school principal, and the police about his perception of unfair treatment.[86]

   [84] Affidavit of Ms Y, para 130

   [85] Affidavit of Ms Y, para 142

   [86] Affidavit of Ms Y, paras 222-229, 233

2. The children’s behaviour progressively deteriorated to the point that the eldest child had to be urgently removed from the maternal family milieu in February 2017. He threatened the mother and at least one sibling with a hammer and he threatened the maternal grandmother with a knife. On the evidence adduced, nothing said or done by the mother or maternal grandparents could have aggravated the eldest child to such an extent he felt compelled to threaten their physical safety in that way. Most likely, the eldest child’s emotional torment and rage grew out of the parental conflict to which he was exposed, the cause of most of which was objectively attributable to the father.

3. The Secretary placed the eldest child with the paternal grandmother for temporary respite and tried to monitor his progress by home visits throughout 2017, but the Secretary’s staff were thwarted by the father and paternal grandmother. Some home visits were cancelled by them and, during the visits that did occur, the father interrupted and dominated. He either did not or could not prevent the eldest child from threatening to physically harm the Secretary’s staff.[87] The eldest child often refused to spend any time with the mother, contrary to the interim orders made in March 2017, which the father was apparently powerless to prevent.[88]

   [87] Affidavit of Ms Y, para 67

   [88] Affidavit of Ms Y, para 140

4. During the meetings with the Family Consultant in December 2017, the father’s behaviour continued to demonstrate his “alarming lack of insight”. He remonstrated with the Family Consultant in the eldest child’s presence, insisting the eldest child see his sisters without the mother being present, and expected the children to demonstrate allegiance to him by them telling the Family Consultant of their desire to see more of him. He also gave the children non-verbal cues which were inconsistent with his verbal instructions and he spoke critically of the mother, maternal grandparents, and a range of others associated with the litigation in the eldest child’s presence. He was seemingly oblivious to the emotional harm thereby potentially caused to the children.[89]

   [89] Family Report, paras 63, 120, 124, 131

5. Things were no better in 2018. The Secretary’s case workers visited the paternal grandmother’s home in April 2018 to check on the progress of the paternal grandmother, father, and eldest child. The eldest child refused to talk with the case workers, but the father was positively hostile to them. In the eldest child’s presence the father said to a case worker “what is going to be done about that bitch of a fucken mother [sic]?”. The father admitted he said it, but denied he said it in the eldest child’s presence, which denial is rejected as false. He admitted it would have been an “extremely bad thing” for the eldest child to hear. The father told the case worker there was nothing wrong with him and it was the case worker who needed a mental health assessment. The father threatened he was “going above the Family Law Court” and would soon be approaching the media with his grievance. He said he did not care the eldest child was spending time with him in the paternal grandmother’s absence, in breach of Court orders.[90]

   [90] Exhibit A10

6. The father and paternal grandmother now openly admit they acceded to the eldest child’s demand to spend much of his time in the father’s care without any supervision by the paternal grandmother. They were unable to control the eldest child, either together or individually, so as to comply with the interim orders made by the Court in March 2017. Neither moved the Court to amend the orders by reference to the changed facts and circumstances. They both thought they were acting properly and justifiably, even though they both knew it was contrary to the Court’s authority and the other parties’ beliefs about the eldest child’s best interests. It was a stark example of their arrogant sense of entitlement. The father even said in cross-examination he would “do what [he] need[s] to do to protect [his] children”, regardless of whether his conduct was in breach of Court orders. Such behaviour by the father and paternal grandmother models reckless defiance of authority to the eldest child and empowers him to make decisions beyond his level of maturity.

7. That synopsis of the evidence about events since the orders were made by Cleary J in 2015 shows little has changed. The animosity between the paternal and maternal families may not have actually worsened, but it has certainly not improved.

8. The father adduced evidence of the various courses he completed during 2016 and 2017[91] and of a domestic violence course he is still attending,[92] but they made no appreciable difference to his behaviour. Despite his completion of those courses he told the Family Consultant he still had no idea why the children were removed from his care in October 2014, he categorically denied any aspect of his past or present conduct would objectively justify concern about his “functioning and parenting capacity”,[93] and he deposed he was unaware why the children’s time with him should be supervised.[94] When asked during cross-examination what he learned from those courses, he said he learned compassion, humility, guilt about past events, and how to treat women. Without intending disrespect, very little of that learning was displayed by him up to and during the trial.

   [91] Father’s affidavit, para 28

   [92] Exhibit F1

   [93] Family Report, para 58

   [94] Father’s affidavit, para 114

9. The Family Consultant reported the father was prone to hyperbole, exaggeration, and self-praise,[95] which opinion is consistent with the facts summarised above. He also correctly observed how the father’s denial of awareness about why others are objectively concerned by his behaviour is completely inconsistent with clear facts.[96] There are only two plausible explanations for the inconsistency: either the father’s denial of his awareness is dishonest and he really does understand but does not care, or alternatively, he lacks the insight to appreciate the inconsistency. Significantly, either explanation is an indictment of his parenting capacity. The Family Consultant independently reached the same conclusion.[97] On the assumption the father was being truthful and he really does not have such awareness, it is the same lack of insight found in him by Cleary J in the last proceedings.[98]

   [95] Family Report, para 57

   [96] Family Report, para 59

   [97] Family Report, para 63

   [98]Baines & Keen & Ors (No.2) [2015] FamCA 720 at [87], [158], [258]

10. Unfortunately, the paternal grandmother is not a protective influence for the children because she sees no defect at all in the father’s parenting capacity. She admitted in cross-examination she even lied to the Family Consultant about her breach of the interim orders, by her failure to supervise the eldest child spending time with the father.[99] She does not believe there is any need to supervise any of the children when they spend time with him.[100] She thinks the mother was the perpetrator of the family violence in the parents’ relationship.[101] She left the Secretary’s staff with the impression she would not actively facilitate the eldest child’s relationship with the mother.[102] She even initially refused to tell the Secretary the name of the therapist she arranged for the eldest child to attend, even though parental responsibility for the eldest child is currently vested in the Secretary, mother, and maternal grandparents. She consented to the father’s application to re-open and tender in evidence his letter dated 4 July 2018 in which he continues to make gratuitous criticisms of the mother and maternal grandparents,[103] so presumably she regarded his persistent criticisms of them as relevant and probative.

    [99] Family Report, para 73

    [100] Family Report, paras 38, 70, 74

    [101] Family Report, para 75

    [102] Affidavit of Ms Y, para 69

    [103] Exhibit F5

11. However, the mother’s shortcomings must also be acknowledged. As the father and paternal grandmother correctly contended, there are limitations to the mother’s parenting capacity but, at least in her case, there is some objective evidence of improvement. She has not consumed any alcohol for several years so there is now no reasonable foundation for any concern about her binge drinking leaving the children without proper supervision and care. The mother’s problems are now confined to her unstable psychological health. She still periodically requires respite from the responsibility of caring for the three youngest children, but the maternal grandparents live nearby and provide valuable assistance. They step in to take over temporary care of the children while the mother recovers. They have done so consistently in the past and they both gave credible evidence of their intention to continue doing so in the future. The recent tension which developed between the mother and maternal grandparents was relatively isolated.[104] In an overall sense, the disharmony was temporary, not evidence of the permanent rupture of their co-operation.

    [104] Exhibits A3, A4, A6, A7, A9

12. In co-operation with the Secretary’s staff, the mother commendably engaged with the medical and other support services she needed.[105] She has the insight to understand her need to balance, on the one hand, the management of her own psychological health with, on the other, the stable and reliable care of the three youngest children.[106] Her behaviour since the last orders were made in 2015 and her evidence at trial instilled the same sort of confidence in her gradual recovery as was identified by Cleary J.[107] The three youngest children seem to be settled and thriving in the mother’s primary care.[108]

    [105] Family Report, paras 48, 133; Affidavit of Ms Y, paras 106-107

    [106] Family Report, para 49

    [107]Baines & Keen & Ors (No.2) [2015] FamCA 720 at [111], [117], [256]

    [108] Affidavit of Ms Y, paras 111, 113, 115

13. The evidence convincingly proves that, as things stand, adverse repercussions would result from trying to change the current residential arrangements: either by ordering the eldest child to live with the mother or by ordering the three youngest children to live with the father (s 60CC(3)(d)). The separation of the three youngest children from the mother and maternal grandparents, contrary to their wishes, would be deleterious. The same may be said about separation of the eldest child from the father and paternal grandmother.

14. If the children are to remain living under the existing circumstances, it will be difficult and potentially expensive to make arrangements for the eldest child to spend time with the mother or for the three youngest children to spend time with the father (s 60CC(3)(e)). The eldest child has repeatedly proven he cannot be forced to visit the mother. Given the three youngest children could only probably continue to see the father under professional supervision, his continued travel to and accommodation in Queensland is liable to be expensive and arduous, though he was willing to continue that regime if forced to endure it. Much less difficulty and expense would attend arrangements for the four children to spend time together in the absence of their parents and grandparents. The parents can be ordered to present them to a contact centre to periodically see one another. The eldest child will know he is not being forced to see the mother, the girls will feel safe, and the parents can be kept apart.

Conclusions and orders

1. The presumption that the children’s best interests would be served by the parents having equal shared parental responsibility for them does not apply because the evidence afforded reasonable grounds to believe the father engaged in family violence (s 61DA(2)(b)). What, then, should be done about parental responsibility for the children?

2. The father’s counsel put to the mother in cross-examination the proposition that their views about the children were “diametrically opposed” and she agreed. The paternal grandmother even deposed to her belief that “entrenched hate…has evolved” between the parties.[109] There can consequently be no doubt about how the paternal family feels towards the maternal family, but the maternal family’s dislike of the paternal family was just as palpable. Given the demeanour of the parties and the nature of the evidence they adduced, the Family Consultant was surely correct to conclude it is an “extremely remote” prospect they will experience sufficient improvement in their level of communication to allow parental responsibility for any of the children to be effectively shared between members of the paternal and maternal families.[110] However, conferring shared parental responsibility on members within the paternal and maternal families is a different thing. The parties’ investiture with parental responsibility for the children is necessarily tied to the question of with whom they will each live.

   [109] Paternal grandmother’s affidavit, para 43 (page 14)

   [110] Family Report, paras 45, 90, 137, 140

3. It is untenable for the eldest child to live with the mother and/or maternal grandparents. His violent opposition to residence with them led to his urgent removal from their household in February 2017. He remains opposed to residence with them, which the mother well knows. Even if he changes his mind, the maternal grandmother confirmed in cross-examination he could not presently live with them. She would only countenance his short holiday visits to their home, which is unsurprising, given he once threatened her with a knife. The Family Consultant said in cross-examination there would be “enormous difficulty” trying to force the eldest child to return to live with the mother in Queensland against his wishes. During the mother’s cross-examination, she conceded it was not in anybody’s interests trying to force him to live with her against his strong wishes, though she hopes he will eventually change his mind.

4. The mother’s proposal was to keep the Secretary involved with the family, against the Secretary’s wishes. She expected he could then investigate and arrange some form of respite foster care for the eldest child, in the hope that after some time away from the father and his acceptance of more psychological therapy he would be willing to return and live with her. Her proposal is rejected. Her hope falls well short of any reasonable expectation. More likely, the eldest child’s resistance to her would only be fortified by his enforced removal into foster care and make it even less likely he would relent and submit to residence with her. In any event, the Secretary asserted it would be very difficult to find a sufficiently skilled foster carer to cope with the eldest child and no investigation into that option has yet been undertaken. The Secretary wants to withdraw his involvement with the family, which commenced about nine years ago, and nothing useful would be achieved by forcing his continued involvement on the current state of the evidence.

5. Due to the eldest child’s strong views, there is really no feasible alternative but to allow him to continue living with the father and/or paternal grandmother. The mother is concerned her relationship with him will atrophy because the father and paternal grandmother will not encourage and facilitate it. She could be right, but there is no practical way to overcome that possibility.

6. The eldest child’s residence with the father or paternal grandmother does not necessarily reflect his best interests, so no order will be made to endorse that residential situation. Instead, the father and paternal grandmother will equally share parental responsibility for the eldest child whilst ever he chooses to live with either one of them. They were both content to share parental responsibility for him. If in the future the eldest child chooses to live with someone other than the father or paternal grandmother then parental responsibility for him will shift to the mother and maternal grandparents, who will equally share the parental responsibility.

7. The father and paternal grandmother are required by the orders to ensure the eldest child submits to psychological therapy, at least whilst ever he lives with either one of them. All parties agree he needs therapy, so such an order should be uncontroversial. The Secretary arranged therapy for him, but he refused to accept the therapist arranged by the Secretary and the father and paternal grandmother could not convince him otherwise. Instead, the paternal grandmother arranged for him to begin consulting with a therapist she engaged privately. The Family Consultant confirmed in cross-examination that his current therapist is fit for purpose.

8. The allocation of parental responsibility to the father and paternal grandmother is not contingent upon the eldest child submitting to therapy (as the Secretary proposed) because, in default, nothing could usefully be done to rectify it. If the child refuses to receive therapy and refuses to leave the father’s residence, there would be no point served by self-executing orders that transfer parental responsibility for him to the mother and/or maternal grandparents instead. They could not change anything from inter-state. The eldest child would remain living with the father or paternal grandmother, but they would then have to live with the knowledge they could not convince an adolescent to accept the therapy they know he needs and any adverse psychological consequences he suffers may be attributed to their failure.

9. Other than on odd occasions, the eldest child has resisted spending any time with the mother for more than the last year. Neither the father nor the paternal grandmother have been able to cajole him to consistently spend time with her under the interim orders made in March 2017. It would therefore be pointless making orders that perpetuate the same style of regime, requiring him to periodically spend time with her.

10. The father’s evidence in cross-examination about the likelihood of the eldest child spending time with the mother in the future was confused and inconsistent. He initially said the eldest child would not comply with any orders which compelled him to spend time with the mother at scheduled times and he would not be able to make the eldest child comply, about which he was almost certainly correct. However, he later asserted he would be able to ensure the eldest child visited the mother, provided Mr Z and the maternal grandfather were kept away from him. The irreconcilable inconsistency in the father’s evidence deprives it of reliability. The father’s proposed orders implied he believed the eldest child might be more inclined to spend time with the mother if the decision was up to him,[111] but that conclusion lacks validity. Fixed with such responsibility, he might feel as though he needs to continue demonstrating his allegiance to the father by rebuffing the mother. In any event, an order merely allowing him to spend time with the mother when he wants is not an enforceable order at all.

    [111] Exhibit F3, Order 6

11. The Secretary proposed an order which aspired to the eldest child spending time with the mother in each school holiday period, requiring the father to use his “best endeavours” to ensure it occurred,[112] but he conceded in final submissions an order in that form is unlikely to be successfully implemented.

    [112] Exhibit A11, Order 7

1. No orders are made stipulating the circumstances under which the eldest child is obliged to spend time with the mother, consistently with the proposals of the mother and the Independent Children’s Lawyer. Instead, provision is made for the mother and maternal grandparents to correspond with the eldest child in writing. At least they can stay in touch with him that way so he will know they have not abandoned him.

2. As for the three youngest children, the father and paternal grandmother ultimately relinquished their applications for them to live with the father or to share parental responsibility for them. The mother and maternal grandparents were convinced they would be able to successfully share parental responsibility for the three youngest children. That being the case, there is no need to make any order about with whom they live, as the mother and maternal grandparents will make decisions about their residence in the exercise of their shared parental responsibility.

3. It is anticipated the three youngest children will mostly live with the mother, but may need to occasionally live temporarily with the maternal grandparents if and when the mother experiences bouts of psychological instability. The Secretary harbours some concern about the durability of the mother’s stability, but is satisfied she will cope with the parenting load of the three girls if she has the maternal grandparents’ ongoing support. There was some recent friction in their relationship, but that was overcome. The mother realises she was stressed by the upcoming trial and her financial predicament. She candidly conceded she occasionally needs respite from the girls to preserve her stable mental state, for which purpose she relies on the maternal grandparents’ support. She recently told the Secretary’s staff she could not rely upon them, but she said that in a pique of anger following an argument with them. It was not true. They will probably cease living in the same household at some point in the future, but it is highly unlikely the mother will rent accommodation far away from them. She has applied for public housing close to them and the girls’ current schools.

4. In recent times, the girls have expressed some degree of reluctance to visit the father at the contact centre on every occasion it is scheduled and also to speak with him on the telephone so frequently. The mother and father both said in cross-examination the girls do not like visiting the father at the contact centre, but there are few alternatives. If, as the mother contended, the girls should not spend any unsupervised time with the father, the practical options are either their permanent supervision or no visits at all.

5. The father and paternal grandmother were both convinced no supervision of the three youngest children’s visits with the father was needed. The mother, maternal grandparents, Secretary, Independent Children’s Lawyer, and Family Consultant all disagreed. The mother explained to the Family Consultant why she held that view,[113] which explanation she repeated in cross-examination. The father’s past aberrant behaviour, both before and after the last orders were made by Cleary J in 2015, affords the best and most reliable basis for predictions about his behaviour in the future. The orders made by Cleary J imposed supervision for only a finite period, but there has been no discernible improvement in the family’s predicament despite the imposition of professional supervision over more than the last two years. The evidence satisfactorily demonstrates the three youngest children remain at unacceptable risk of emotional harm if they spend time in the father’s care without proper supervision.

   [113] Family Report, para 35

6. The paternal grandmother is unsuited to supervise the three youngest children with the father because she would probably be unreliable. She does not believe any supervision is needed and she does not even comply with existing orders mandating her supervision of the eldest child with the father. No other private supervisor was posited by the father as an alternative. Consequently, the only option for supervision is that provided by a professional service. But should orders be made imposing such supervision when they would be intended to have a shelf-life of another eight years until the two youngest children attain their majority? The long-term supervision of time spent by children with a parent is usually regarded as unsustainable, so orders to that effect are generally deterred (see Slater & Light (2013) 48 Fam LR 573 at 583-584; Champness & Hansen (2009) FLC 93-407 at [209]-[215]; Moose v Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40-41]; Marriage of Bieganski (1993) 16 Fam LR 353 at 368).

7. In this case, neither parent is content with the continued use of I House as the professional supervisory service. The father thinks the children “hate” I House.[114] The mother was content to revert to use of V Group, but the father was and remains dissatisfied with that organisation. He said in cross-examination “I have a real problem with [V Group]”. Given his past complaints about V Group staff, it might be V Group is unwilling to resume the provision of its services to the family anyway.

   [114] Father’s affidavit, para 127

8. Despite the parents’ overt dissatisfaction with I House, the Secretary still proposed orders requiring the girls to spend supervised time with the father at that venue.[115] The father also proposed the continued use of I House, but only as a change-over venue.[116] The mother and the Independent Children’s Lawyer both proposed that no orders should be made regulating the circumstances under which the three youngest children spend supervised time with the father,[117] with the intent that their future interaction with him would be left to the judgment of the mother and maternal grandparents in the exercise of their shared parental responsibility. Their proposal was consistent with the Family Consultant’s recommendation against long-term supervision orders[118] and he was not challenged about the efficacy of that opinion. It is the better option.

   [115] Exhibit A11, Order 6

   [116] Exhibit F3, Order 9.5

   [117] Exhibits M2, ICL1

   [118] Family Report, paras 139, 151

9. The two youngest children are now nine years of age. Making orders that lock in their professionally supervised visits with the father at a contact centre for another eight years is not likely to serve their interests well. Nor will the termination of their face-to-face contact with the father be beneficial, but it is still a better option than indefinite professional supervision at a contact centre, which is already disliked by both the parents and the children. Forcing them to endure conditions for years to come which they already dislike is a recipe for further dispute and litigation. Instead, the girls can maintain occasional written communication with the father, which is far from ideal, but still sufficient to enable some semblance of their relationship with him to be maintained. They may also occasionally correspond with the paternal grandmother. In that way, the girls’ interaction with members of the paternal family will be managed in the same way as the eldest child’s interaction with members of the maternal family.

10. Given the orders will not require the eldest child to spend time with the mother, nor require the three youngest children to spend time with the father, the question arises as to what can be done to enable the children to maintain their sibling relationships. The eldest child wants to see his sisters and they want to see him. The orders require the parents to ensure the children are able to see each other for a couple of hours in each school holiday period at a contact centre. The contact centre visits can alternate between Queensland (near the mother) and on the mid-north coast of NSW (near the father). The mother said she would drive the girls to NSW and the father said he would drive the eldest child to Queensland. That is the only conceivable option because:

    (a)The mother is frightened of the father and does not want to be near him;

    (b)Neither parent trusts the other to abide by orders and act in the children’s best interests, in which event only independent supervision can allay their suspicion;

    (c)The mother cannot bear the thought of the three youngest children visiting the eldest child at the homes of either the father or paternal grandmother in NSW; and

    (d)The father and mother both know the eldest child is unlikely to go and stay at the mother’s home in Queensland to visit his sisters. In fact, the father asserted as recently as 4 July 2018 that the eldest child “feels unsafe going to Queensland”.[119]

    [119] Exhibit F5 (para 13)

11. No orders are made for the children to have any telephone communication with their non-residential parent because of the rank conflict created by the existing orders to that effect. Telephone communication has been the subject of regular complaints by the parents, paternal grandmother, and maternal grandparents.[120] The parents agreed the current communication orders were not working and both professed they could not make the children speak on the telephone with the non-residential parent if they choose not to do so. The father said in cross-examination the eldest child “hates” it when he reminds him to telephone the mother and his sisters. The mother said in cross-examination the girls are reluctant to speak with the father by telephone as frequently as the past orders require. The maternal grandmother said in cross-examination the father used to call the police if his telephone calls to the children were not answered within the first three rings. Even now, the father is still complaining about the implementation of telephone communication.[121] Therefore, instead of electronic communication, the orders make provision for occasional written correspondence between the parents and the children.

    [120] Affidavit of Ms Y, paras 155, 190-209; Father’s affidavit, paras 117-125

    [121] Exhibit F5 (para 5)

12. The two eldest children both have mobile telephones. The father pays for the eldest child’s mobile phone plan and the mother pays for the second child’s mobile phone plan. The orders require the parties to ensure the eldest child maintains an operating mobile telephone so he can use it to stay in touch with his siblings, as they presently do.[122] No similar order is made in respect of the second child, to avoid the father contacting her via that medium. The mother will most probably maintain an operating telephone for her in any event. It is also likely the mother will furnish the two youngest children with mobile telephones when she and the maternal grandparents agree they are old enough to have them, in which case they will also be able to independently stay in touch with the eldest child.

    [122] Affidavit of Ms Y, para 156

13. An order is made prohibiting the father and paternal grandmother from approaching the mother’s home, the three youngest children’s schools, or other venues at which they participate in sport or extra-curricular activities. The injunction should be sufficient to prevent them from circumventing the orders, which make no express provision for the girls to spend time with them.

14. The orders also restrain all parties from acting in other ways to the detriment of the children, which reflect orders proposed in similar terms by all the parties. Some injunctions sought are not made because they were insufficiently prescriptive – for example; proposed restraints against exposing the children to “discussion regarding allegations”, or “exposing…the children…to any form of…emotional or psychological abuse”, or the parties’ “excessive consumption of alcohol”.[123] The injunction proposed by the father restraining the mother from consuming any alcohol at all is not made.[124] The unchallenged evidence was that she has not consumed any alcohol for several years and diligently attends AA meetings.

    [123] Exhibit A11, Orders 14, 15, 19; Exhibit ICL1, Orders 17, 18

    [124] Exhibit F3, Order 13

15. Other injunctions are not made because they are unworkable – for example; the proposed restraint of the father from contacting the mother or maternal grandparents, either at all or other than through lawyers.[125] Once this litigation is complete, she will not have any lawyers and the parents may need to contact one another about the children in emergencies.

    [125] Exhibit A11, Order 20; Exhibit ICL1, Order 22

16. The father’s proposed injunction restraining the mother from allowing the children to be or remain in the “sole care” of Mr Z is not made.[126] The issue of the alleged risk he poses to the children was not meaningfully pursued at trial, as already discussed. His belated complaint about Mr Z when the evidence was re-opened did not advance the issue.[127]

    [126] Exhibit F3, Order 14

    [127] Exhibit F5 (para 6(h))

17. No orders are made for the father to submit to therapy or other education programs, as the Secretary proposed.[128] In the last proceedings, Cleary J convincingly explained why the father should not be forced to participate in such therapy or programs and her Honour’s reasons are just as convincing now.[129] Such therapy and education is only likely to be valuable if the father seeks it voluntarily. The underlying orders dictating the children’s care will not turn on whether or not the father submits to therapy or furthers his education.

    [128] Exhibit A11, Orders 8-9

    [129]Baines & Keen & Ors (No.2) [2015] FamCA 720 at [289]-[291]

18. The Secretary and the Independent Children’s Lawyer mutually proposed that permission be granted for a copy of the Family Report to be furnished to any medical professional engaged to provide any treatment to any party or child, but they conceded the contents of the Family Report were not as important as the findings within these reasons. The orders therefore permit copies of these reasons to be furnished to any psychiatrist or psychologist engaged to provide counselling to any party or child.

19. The remaining orders are self-explanatory and could not be the subject of reasonable opposition.

20. Any other orders proposed by the parties or Independent Children’s Lawyer which are not addressed in these reasons were not the subject of either direct evidence or submissions, in which event it may safely be imputed they are not regarded as particularly important.

21. The orders require the parents to ensure the children communicate immediately with the Independent Children’s Lawyer so she can independently inform them of the orders made to conclude this litigation and, if deemed appropriate by her, the reasons given for such orders. That way, the children will receive an unvarnished explanation about the disposition of the litigation. The orders require the eldest child’s personal attendance upon the Independent Children’s Lawyer because he lives much closer to her than the three youngest children and little practical difficulty or expense would thereby be incurred. The three youngest children’s residence in Queensland practicably precludes their personal attendance upon the Independent Children’s Lawyer so, for them, telephone communication will suffice.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 6 July 2018.

Associate: 

Date:  6 July 2018