Derrick and Hicks

FAMILY COURT OF AUSTRALIA

DERRICK & HICKS

[2019] FamCA 2

FAMILY LAW – CHILDREN – Interim application – Where the father seeks orders that the children’s supervised time with him be extended – Where the father seeks orders that the contact service providing supervision of the children’s time with him be changed – Where the father seeks orders that he and the children attend family therapy – Where the father and the children have a strained relationship – Court finds that supervision of the children’s time with the father is mitigating any risk of harm that would otherwise be posed to them by that time – Court finds that there is a possibility of the children developing a more meaningful relationship with the father and that doing so would be in their best interests – Orders made for optional extension of the children’s time with the father, with consideration to be had to the children’s views in that regard – Orders made facilitating a change of the contact service providing supervision if the parties are unable to agree to a particular service – Orders made for family therapy.

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

Acton & Burton [2015] FamCA 469
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Walker & Walker [2013] FCWA 85

APPLICANT:

Mr Derrick

RESPONDENT:

Ms Hicks

INDEPENDENT CHILDREN’S LAWYER:

Auslawyers

FILE NUMBER:

SYC

8257

2016

DATE DELIVERED:

11 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

20 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Anderson

SOLICITOR FOR THE RESPONDENT:

Doolan Wagner Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Auslawyers

Orders

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

Within 14 days, the father provide the mother with the names of three (3) appropriately qualified practitioners who he nominates for the purpose of conducting family therapy between himself and the children. If requested by the father, the Independent Children’s Lawyer is granted leave to contact Dr R to obtain her recommendations as to practitioners who are appropriately qualified to provide such therapy.
Within seven (7) days of having received the names of the practitioners referred to in order 1 above, the mother nominate from that list the practitioner who is to provide the family therapy (“the family therapist”).
Within seven (7) days of the mother having nominated the family therapist, the parties shall contact the family therapist for the purposes of arranging the family therapy between the father and the children. Thereafter, the mother shall facilitate the children's attendance at such therapy, as recommended by the family therapist.
Leave is granted to the Independent Children's Lawyer to provide a copy of the Single Expert Report of Dr R dated 14 June 2018 to the family therapist.
The father shall initially meet the cost of the family therapy, with an adjustment to be made in the final property proceedings between the parties, such that the cost incurred in respect to that therapy shall be shared equally between the parties.
Order 7 of the consent orders made on 28 August 2017 be varied, as follows:
That pending further order and on a without admissions basis, ~~the father spend 2 hours per week with the children at a Children's Contact Service, the costs of same to be met by the father~~ the children shall spend up to four (4) hours per week with the father in accordance with a reasonable request for such time made by the father, and for the purposes of the same, the following shall apply:
(a)In making such a reasonable request, the father is required to give proper consideration to:
(i)the views of the children, as communicated through the family therapist; and
(ii)the recommendations of the family therapist;
(b)The children’s time with the father shall be supervised by an agreed children’s contact service and, in the absence of such agreement, by B Group;
(c)The location/s of the children’s time the father shall be agreed between the parties in consultation with the nominated contact service provider and, in the absence of such agreement, the location shall be where the children last spent time with the father; and
(d)The changeover location/s for the children’s time with the father shall be as agreed between the parties in consultation with the nominated contact service provider and, in the absence of such agreement, the changeover location/s shall be where the changeover last occurred.

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 Derrick & Hicks 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 SYDNEY

FILE NUMBER: SYC 8257 of 2016

Mr Derrick

Applicant

And

Ms Hicks

Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns interim parenting orders sought by the father in respect to the parties’ three children, X, born in 2005 and currently aged 14 years, Y, born 2006 and currently aged 12 years and Z, born in 2008 and currently aged 10 years.
The father’s application is made in the context of the persistently strained relationship that exists between the parties, as well as between the children and the father.
At the outset of this decision, I would like to express the Court’s appreciation to Legal Aid New South Wales for expeditiously arranging for an Independent Children’s Lawyer (“ICL”) to appear in these proceedings in circumstances, upon receiving a request for the same less than a month prior to the hearing. The Court has been greatly assisted by the submissions of the ICL in this matter.

Background

The father was born in 1954 and is currently aged 64 years.
The mother was born in 1972 and is currently aged 46 tears.
In January 2005, the parties commenced cohabitation.
In 2005, X was born.
In 2006, Y was born.
In 2008, Z was born.
In February 2015, the parties separated, but remained living at the former matrimonial home.
In June 2015, the mother and the children moved out of the former matrimonial home.
On 12 December 2016, the mother commenced these proceedings.
On 28 August 2017, interim parenting orders were made by consent of the parties (“the consent orders”), as follows:
1. That pursuant to Division 15.5.2 of the Family Law Rules 2004, that [Dr R] be appointed as single expert witness ("the Expert") to enquire into and report upon matters relating to the welfare of the children, [X] born … 2005, [Y] born … 2005 and [Z] born … 2008 ("the children"), and in preparing the report to the Court, the Expert be requested to consider the following matters:
(a) whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
(b) any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views:
(c) the relationship between the children and each other and with each of their parents and any other relevant persons:
(d) the willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and the other parent;
(e) the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;
(f) the capacity of each parent of any other person to provide for the needs of the children, including emotional and intellectual needs;
(g) the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person);
(h) the effect on the children of any family violence to which they may have been exposed;
(i) the effect on the children of spending equal time, or substantial and significant time, with each parent having regard to the parent’s current and future capacity to:
i. implement such an arrangement; and
ii. communicate with each other and resolve difficulties that might arise.
(j) the mental state and health of each of the parents insofar as it relates to parenting issues;
(k) any other matter the Court Expert considers requires investigation to assist the Court in making Orders in the best interests of the children.
2. That the respondent shall pay, in the first instance, the expert's fees for Dr R as and when they fall due, including any payment to trust that may be required by the Expert before work is commenced, and the applicant shall reimburse the respondent 50% of the Expert's fees within 30 days of the date of Orders being made finalising the financial claim by the applicant under the Family Law Act.
3. That each party do all acts and things and sign all documents necessary to facilitate the preparation of the report by the Expert including attending upon and arranging for the children to attend upon the Expert.
4. That each party forward to the Expert copies of all material filed by them in these proceedings not less than 14 days prior to the date of the first appointment with the Expert.
5. That leave be granted to each party to have photocopy access to material produced under Subpoena for the purposes only of providing same to the Expert.
6. That the hearing date on 28 August 2017 be vacated.
7. That pending further order and on a without admissions basis, the father spend 2 hours per week with the children at a Children's Contact Service, the costs of same to be met by the father.
8. That pending further order and on a without admissions basis, the father may communicate with the children by telephone or mobile phone as agreed, and failing agreement, between 7 and 8 PM each Tuesday and .Friday, and the mother shall do all things necessary and required to facilitate the availability of the children for the telephone calls.
9. That the matter be listed for mention before a Registrar on a date as allocated by the court and noting that fallowing the receipt of the expert's report referred to herein each party reserves the right to seek allocation of an interim hearing date.
In October 2017, the children commenced spending supervised time with the father, pursuant to the consent orders.
On or about 27 June 2018, Y ceased attending supervised visits with the father. Y continues to have telephone contact with the father each Tuesday and Friday evening for approximately 10 to 20 minutes.
On 14 June 2018, Dr R’s Single Expert Report was released to the parties.
On 13 November 2018, the matter was listed for the first day of a Less Adversarial Trial, at which time the father foreshadowed that he would be making an application for the variation of the consent orders. That application was filed by the father on 27 November 2018 and is the subject of this decision.

Application

In his Application in a Case filed on 27 November 2018, the father seeks the following orders:
1. The mother and father shall each do all acts and things to facilitate the attendance of each of [X], [Y] and [Z] for therapy involving the father to be conducted by [Dr S] on days and at times as directed by [Dr S].
2. In respect of paragraph 7 of the Orders made 28 August 2017, they be varied as follows:
2.1 delete "two hours" and insert "four" hours;
3. That in respect of implementation of paragraph 7 of the Orders made 28 August 2018:
3.1 that the children's contact service for the purposes of the order be changed from [E Group] to [B Group];
3.2 that [D School] be the pickup and drop off location for the time the children spend with the father, and that the father attend at the school at the commencement of each period with the supervisor to collect the children;
3.3 that the father's home at [F Street, Suburb G] be one of the locations the children may be brought to during the Visits.
4. The court notes the father's intention, after therapy as between Dr S and the father and the children has been progressed, to make further application to the court in respect of:
4.1 introduction of non-supervised time between the father and the children; and
4.2 increase in the time the children spend with their father including for overnight periods.
That application refers to order 7 of the consent orders, as set out above.
The mother opposes the father’s application and seeks that it be dismissed.
The ICL also opposes the father’s application and seeks that the following orders be made:
1. That by close of business 21 December 2018 the legal representatives for the parties and Independent Children's Lawyer jointly write to [Dr R] and request:
a. Her recommendation as to a suitable practitioner to provide family therapy between the father and children.
2. In the event that [Dr R] recommends a therapist, the parties forthwith contact the recommended therapist for the purposes of commencing therapy between the father and children. Thereafter the mother shall facilitate the children's attendance at such therapy, as recommended by the appointed therapist.
3. That leave be granted to the Independent Children's Lawyer to provide a copy of the Expert Report of [Dr R] dated 14 June 2018 to the therapist appointed in accordance with these orders.
4. The parties share the cost of therapy in accordance with these orders.
Those orders proposed by the ICL are supported by the mother, save to the extent that the mother contends that, at least at first instance, pending resolution of the parties’ property proceedings, the father should meet the cost of family therapy.

Evidence

At the hearing, the father relied upon the following documents:
a)His Affidavit filed on 27 November 2018; and
b)Affidavit of Dr S filed on 27 November 2018.
The mother relied upon the following documents:
a)Her Affidavit filed on 4 May 2018;
b)Her Affidavit filed on 13 December 2018; and
c)Notice of Child Abuse, Family Violence or Risk of Family Violence filed on 12 December 2016.
The ICL relied upon the following documents:
a)Single Expert Report of Dr R dated 14 June 2018;
b)Child Responsive Program Memorandum of Ms H dated 28 July 2018; and
c)Contact supervision reports produced pursuant to subpoena by E Group.

Approach

While the issues to be determined in this decision are relatively narrow, the Court is guided by the principles set out by the Full Court in Goode & Goode (2006) FLC 93-286. Relevantly, in dealing with these proceedings, at 80,903 to 80,904, under the subheading "How should interim proceedings be conducted?" the Full Court said:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Issues in dispute

It is common ground that the children’s relationship with the father continues to be strained. This is particularly the case in respect to X and Y.
The father acknowledges that steps need to be taken to establish a more solid foundation for the children’s relationship with him. To assist in that, he proposes to engage the services of his treating psychologist, Dr S (“Dr S”), to provide family therapy for himself and the children.
As noted, on a “without admissions” basis, the father agreed to the consent orders on 28 August 2017, which provided for the children’s time with him to be supervised. The father contends that the current parenting arrangements are not conducive to him developing a meaningful relationship with the children. He asserts that to do so would require the children to have additional time with him, including at his home, which would be a more natural setting for such contact and allow for he and the children to engage in a range of activities, including electronic gaming.
The father further contends that changeover should occur at the children’s school and that he should be in attendance at that time, in order to greet the children as they leave school prior to spending time with him. In his Affidavit, the father states:
I have raised my concern that the mother is not doing enough to facilitate [Y] attending time with me or to encourage the child at changeovers to spend time with me. I believe that it would greatly facilitate the successful pickup of all three children, especially [Y], were I to attend at [D School] when the Supervisor picks up the children and to commence the visits directly after school ends.
The father also asserts that the time that the children spend with him should be supervised by a service that supplies the parties with reports regarding the contact sessions. The records of E Group are only made available upon the issuance of a subpoena.
The mother contends that it is not appropriate for there to be any change in the service currently providing supervision of the children’s time with the father, which she says has “alleviated some of the children’s distress around seeing their father”. She asserts that the children are familiar with E Group and particular individual supervisors and she seeks to maintain that continuity for them.

Further, the mother contends that it is inappropriate for the children to attend the father’s home on those occasions when they spend time with him because:
a)When the children have spent time with the father at his home, he has videoed them while he questioned them about their views; and
b)The children are not familiar with the father’s partner, Ms J.
The mother acknowledges that it is appropriate for the children to attend family therapy with the father in order to obtain professional assistance to repair their relationships with him. However, she contends that it is not appropriate for that therapy to be provided by the father’s current treating psychologist, Dr S.
The mother further opposes changeovers occurring at the children’s school, as she contends that the father has previously acted inappropriately in relation to the children’s school, including threatening to take them out of school and filming them while they were at school. The mother is concerned that if orders were made for the changeover to occur at the children’s school, the positive experience that the children have of their school could potentially be adversely impacted.
The ICL contends that a cautious approach should be taken in these interim proceedings and, in that context, refers to the following opinion expressed by Dr R, in that regard:
The real risk, in my view, is if the children are immediately required to spend more time with their father, then this may undermine the fragile connection that they have with him now, and completely undermine any possibility for future relationship connection. If that happens, I think that the children will sabotage the time and it will further entrench their opposition to their father.
The ICL proposed orders for the children and father to attend family therapy with a therapist recommended by Dr R. Without casting aspersions on Dr S’s professional judgement, the ICL contended that, in circumstances where Dr S is currently the father’s treating psychologist, if she were to provide such family therapy, there would be at least the perception that she may not be able to remain appropriately objective throughout that process and that she may be placed in a position of conflict in terms of respecting the confidentiality of information and views expressed by the children on the one hand and information and views expressed by the father on the other.
The ICL also noted that the children, specifically, X and Z, have expressed positive comments in respect to the service provided by the current supervising agency and that, in those circumstances, it would not be appropriate for there to be any change in that service.

Uncontested facts

As noted in Goode (supra), the Court has a limited ability to resolve controversial factual issues in interim proceedings. In that respect, in Iphostrou & Iphostrou and Ors [2011] FamCA 20 at [44], Cronin J said:
In any situation of an interlocutory nature where the facts are controversial and in dispute, a court cannot make findings of fact. Findings of fact form the basis upon which orders are made within jurisdiction.
Similarly, in Acton & Burton [2015] FamCA 469 at [26], Hogan J said:
The nature of the interim hearing process is such that parties are afforded a truncated process in which it is not possible to make findings about matters that are significantly in contest between them.
However, I will now set out the facts which appear agreed, or at least uncontested, between the parties, as well as certain expressions of opinion by Dr R. In noting the opinions expressed by Dr R, I recognise the right that all parties have at final hearing to challenge the foundation or logic of those opinions.
After separation, the children lived with the mother and spent time with the father by agreement. However, as noted by Dr R, “these arrangements ultimately broke down and the children stopped spending time with the father. Y stopped seeing the father in August or September 2015, X stop seeing his father in June 2016 and Z stop seeing her father in July 2016”. The children recommenced spending time with the father subsequent to the consent orders being made on 28 August 2017.
During her interview with Dr R, the mother reported the following:
[The mother] said that when the children were initially spending time with their father that all three were exhibiting signs of extreme anxiety. She said both [Y] and [X] had facial twitches and eye blinking. In contrast, she said that she thinks the children are now much more relaxed and confident.
The mother told Dr R that she wanted the children to spend time with the father and for them to have a good relationship with him and that, while she hopes that they will eventually spend unsupervised time together, she doubts that the children will agree to spend overnight time with the father or visit the father’s farm.
Dr R expressed the view that there is a low probability that the children are at risk of being subject to abuse, neglect or family violence in the care of either parent. However, she expressed concerns “regarding the father's parenting style and some instances of inappropriate parenting which have adversely affected the children”. Dr R notes that those “instances” did not “represent an unacceptable level of harm to the children”.
Dr R noted that she did not observe indicators that the children’s negative views of the father “had been directly influenced by the mother” however, she stated that “it may be the case that the children have indirectly been exposed to the mother’s attitude towards the father”. In that regard, at paragraphs 159 and 160 of her report, Dr R states:
159. I have carefully considered the father's case that the mother has "alienated" the children from him. I did not see any indication from my interviews or observations with the children that their views had been directly influenced by the mother. In cases where children have genuinely been alienated or explicitly influenced by a parent, they tend to develop extremely rigid, perseverating and hostile thoughts and behaviours towards the rejected parent. This behaviour generally extends to all members of the rejected parent's family. In this case, however, I observed that all three children were able to interact politely, although somewhat awkwardly with their father. They were open to supervised visitation. They were also enjoying positive relationships with other members of the paternal family. The children all spoke to me about the mother helping them cope or adapt to spending extended time with the father. They did not indicate to me that the mother had implicitly or explicitly encourage them to cease contact with their father.
160. That said, it may be the case that the children have indirectly been exposed to the mother's attitude towards the father. Children frequently pick up on subtle or non-verbal cues from their parents which have an influence on their own attitudes and behaviours. [X], [Y] and [Z] are particularly close to their mother and sensitive to her emotions, so this may be one way their views of their father have been influenced by the mother. However, I think the likelihood of this is relatively low. The mother spoke in very positive terms about the children having a continuing relationship with the father. She spoke in a balanced way about many of the positive attributes that the father offered the children.
Dr R expressed the view that neither of the parties suffer from an acute mental health disorder, however, she did express concern regarding aspects of the father’s personality. In that respect, at paragraph 189 of her report, she observed that:
The father presents as a charismatic man who is extremely intense and may be somewhat overbearing. He is highly emotional and passionate in his expression. I am of the view that he may have vulnerabilities when it comes to pragmatism, concentration and organisation. As a consequence, the children [and others] view him as eccentric and difficult to manage. The father also has narcissistic traits, his highly emotional and has limited insight into the impact of his behaviour on others.
Further, documents produced by E Group pursuant to a subpoena include communication between the parties and that service. In the father’s case, the tone of his communication varies from light-hearted text messages which include “emojis”, through to lengthier, rather intense complaints regarding the location of visits and the stance taken by the mother. As will be set out below, in one case, the father sent a lengthy text message interrogating a representative from E Group, in circumstances where Z did not attend a visit with him but, instead, took a bus home from school.
The documentation produced by E Group establishes that there has been agreement between the parties to extend the amount of time that the children spend with the father on the following occasions:
a)On 8 November 2017, the children spent three hours with the father, between 4:00 pm and 7:00 pm;
b)On 20 December 2017, the children spent four hours with the father, between 2:30 pm and 6:30 pm;
c)On 29 May 2018, a representative from E Group texted the father proposing that the children spend two hours of make-up time with him as a result of the inability of that service to supervise contact that was due to occur that week (that incident will be discussed in greater detail below);
d)On 11 and 18 July 2018, the children spent three hours with the father, between 3:00 pm and 6:00 pm; and
e)It has been proposed that the children spend four hours with the father on 8 January 2019 as a result of the mother and the children travelling to Queensland during the 2017/2018 Christmas holiday, when the children would have otherwise spent time with the father.
On 2 May 2018, in a text message to E Group, the father expressed his appreciation that the service was able to vary the appointed time for supervision, as follows:
Thank you [Ms K], I really appreciate it. I was so much looking forward to seeing the children and having a wonderful time at the sushi restaurant today. I love [E Group]! If only I had requested supervised visits earlier. It would have alleviated so much suffering that I experienced through being unable to see my children. I can only repeat again. I love [E Group]!
On 8 May 2018, the father sent a further text message to E Group in which he thanked the service for looking after the children while the parties attended an appointment with Dr R on the previous day. The father stated that the service’s assistance was “very much appreciated”.
On 16 May 2017, a representative from E Group sent a text message to the father reminding him that E Group staff are not to be videoed or photographed” and requested that the father to delete a video that he took of a staff member from the previous week. The father agreed to do so.
On 23 May 2018, a representative from E Group sent a text message to the father advising him that it had been necessary to cancel the supervised visit planned for that afternoon at short notice, as result of an emergency impacting upon another family. To his credit, the father expressed understanding about the situation when it was explained to him.
On 29 May 2018, a representative from E Group proposed that the visit planned for the following weekend be extended to four hours to make-up for the previous cancellation, as follows:
I considered a longer visit on the weekend might permit a nice planned activity, leisurely lunch et cetera it will need to take place in the [L] shire twelve – 4 PM or one – 5 PM
The father responded, expressing a desire for the visit to take place at a zoo, rather than in the L Shire and, more generally, expressed concern regarding visit arrangements during the winter months. In that communication, the father stated:
I have a court order for a two-hour visit each week and [Ms Hicks] has consented to [E Group] conducting the visits, surely what I do with my children, within reason, is for me to decide. After all, [Ms Hicks] does as she pleases the rest of the time of the children, and without consulting me or seeking my consent. I have been charged with no offences and am the legal guardian of my children. Please give me your views.
The representative from E Group responded, as follows:
[Mr Derrick] we have already talked about your court orders. There is no legal guardianship applicable. You are the supervised parent as per court orders and the mother has the day-to-day responsibilities of the children but it’s most appropriate to have such conversations with your legal representative rather than with the supervisors. It’s very important to understand that supervisors determine what is appropriate in visits and not parents – that is for contact in an unsupervised order.
It appears that E Group was unable to provide a supervisor who was able to travel from the L Shire to the zoo and instead suggested that the extended visit could be spent at Suburb M. By text message sent on 13 June 2018, the mother noted that the father had declined that offer.
On 12 November 2018, Z was due to spend time with the father, but caught a bus home after school, rather than meeting the supervisor. By text message sent at 3:53 pm that day, a representative from E Group advised the father that she could not locate Z. At 6:07 pm that evening, the father sent the following text message to E Group:
[Ms K], did you go to [Z’s] home to speak to her and seek to persuade her to attend the visit? Did you speak to [Z] at all after her “disappearance”? If so, what did you and [Z] say to each other? If [Z] was not spoken to by you, why not? If your information is second hand and not directly from [Z], then who informed you that [Z] had been found and what else did they tell you about [Z’s] “disappearance? Was it the mother? Will this adult person’s version of events, including what they state as the reasons for [Z] not attending the visit today, find its way into your report? Who actually “sound” [Z]? How was she “found”? Physically or by telephone? Where was she “found”? And by whom? I am [Z’s] father and it is reasonable for me to be informed. Any parent, would want to be furnished with answers to these reasonable and inoffensive questions, concerning the “disappearance” of the child and that child’s non- attendance at a court ordered supervised visit with the child’s father. My wife went to considerable trouble to prepare hot food, refreshments and desert for [Z]. I dropped my urgencies, showered, dressed and battled the heavy to attend. I was there at the [Suburb N] meeting place for over an hour waiting in vain. I have had to battle the traffic homewards without seeing [X] or [Y] or [Z], and losing $260 for a visit that did not take place.
On 30 May 2018, the mother sent a text message to a representative from E Group, advising her that X and Y were at home sick and that “[Z] just went to school saying she refuses to see dad alone today and plans to take a bus”.
On 12 June 2018, the father sent a very lengthy text message to E Group, expressing his concern regarding the proposed location of children’s visits, particularly during the winter months. In that message, the father extracted text from previous text message exchanges between himself and the service. The father’s message included the following:
It is now twenty-six days since you canvassed a winter supervised visit location. I have received no communication from you or [Ms Hicks], regarding [Ms Hicks]’s acceptance or otherwise, of my [Suburb O] library proposal. As it is about the same distance as our regular Suburb P meeting place, [Ms Hicks] cannot reject my [Suburb O] library proposal upon distance grounds. Indeed, I do not believe that a refusal of my proposal can be reasonably sustained. Furthermore, [Ms Hicks] has failed to provide a reply to me within a reasonable time, including cogent reasons, where she is not in agreement.
On 13 June 2018, the mother sent the following text message to the father, in response to his message to E Group regarding winter visits:
[Mr Derrick] I’ve just had your very, very lengthy communication forwarded to me. As you know, our visits are confirmed 72 hours in advance so I will not make last-minute changes. The visit today will take place at the [Suburb Q] library at the children’s request. Your transcript did not acknowledge you are provided the option of a Sunday afternoon [Suburb M] for make-up time which you declined. I am happy to discuss alternative locations with you well in advance of next week’s visit but you will need to include your children in that conversation.
On 16 July 2018, a representative of E Group sent a text message to the mother stating:
[The father] has asked for Wednesdays visit to be at his elderly father’s home to play ping-pong. He said his father wants to see the children.
He would like [Ms J] [the father’s partner] to meet the children.
[E Group] requires additional visitors to have an orientation meeting before they attend a visit. Would you be agreeable to the grandfather’s home and [Ms J] meeting the children after orientations are completed?
The mother sent the following response:
Yes of course although I understand [the father] wanting to introduce [Ms J] to the kids.

The law

Parenting proceedings are to be determined in accordance with Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60CA of the Act makes clear that the best interests of the child is paramount consideration in making such determinations.
Further, s 60CC provides guidance in relation to how best to determine what orders are in the best interests of the child. In Walker & Walker [2013] FCWA 85 at [81], Thackray CJ confirmed that the application of those considerations is informed by the objects of the Act, as follows:
In deciding what orders to make, I must be guided by the objects of the Act and the principles underlying them, which indicate that children’s best interests are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Of further relevance are the principles underlying those objects, as set out in s 60B(2) of the Act, as follows:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
I also note that s 61DA(1) of the Act provides that, when making a parenting order, the Court must apply the presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for them. Subsections 61DA(2), (3) and (4) set out the following exceptions to the application of that presumption:
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

Where the presumption of equal shared parental responsibility is applied, the Court is required to consider whether the child spending equal or substantial and significant time with each of their parents is in their best interests, in accordance with s 65DAA of the Act.
I will now address the issue of parental responsibility, followed by the relevant s 60CC factors.

Parental responsibility

In this matter, it is difficult to see how there can be effective co-parenting between the parties. At paragraph 171 of her report, Dr R describes her perception of the father’s attitude towards the mother in the following terms:
The father views the mother as a person who has a mental health disorder and considers her behaviour to be like "a psychopath". He was extremely critical of the mother throughout his interview with me. When he gave some positive accounts of the mother, he immediately countered these with criticisms of the mother. He indicated that the mother could potentially become verbally and physically abusive towards the children. He described the mother as "a tyrant" and "bully". He regarding the mother as not cultural or intellectual and was broadly critical of her parenting and as a person.
Comparatively, the mother alleges that the father has perpetrated family violence against her, including verbal, physical and sexual abuse. In these interim proceedings, it is not possible to determine whether those events, as alleged by the mother, have or have not occurred. What is evident, however, is that, whether it is justified or not, the mother has poor regard for the father.
Further, at paragraphs 184 to 186 of her report, Dr R expressed a pessimistic view regarding the parties’ ability to communicate:
The parents have an extremely poor capacity to communicate with one another. Their relationship is characterised by distrust and acrimony. They have needed the assistance of the Court and their legal representatives to communicate.
A good example of the parents' current communication and the difficulties that arise for the children as a result of it, is the issue which occurred when [Y] and [X] were attending school camp. The correspondence I have read on this issue indicates that the father engaged in a denigrating communication with the mother, effectively blaming her for sending the children on school camp or failing to communicate with him about this issue. The issue escalated, and it appears that although there was an opportunity for the father to spend individual time with [Z], that this did not eventuate. The parents also appear to be in dispute regarding financing the children's education. I note from the material provided, that the school fees are in significant arears and that the children's places at the school are under threat if the issue is not resolved.
These examples suggest to me that the parents are unable to communicate properly regarding parenting decisions.
Accordingly, in those circumstances, in accordance with s 61DA(3) of the Act, I consider that it would not be appropriate for the presumption of equal shared parental responsibility to be applied in these interim proceedings.
It is therefore unnecessary to consider whether the children should spend equal or substantial and significant time with each parent, in accordance with s 65DAA of the Act. In those circumstances, I will now determine what orders are in the best interests of the children, in reference to the factors set out in s 60CC of the Act.

Primary considerations

Section 60CC(2) of the Act sets out the primary matters to be considered in determining what is in a child’s best interests, as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In making such a determination, s 60CC(2A) directs the Court to give greater weight to the second consideration, being the need to protect the child from harm.

Meaningful relationship

As stated, the children currently have a somewhat strained relationship with the father. The parties have each expressed to Dr R that they want the children to have a meaningful relationship with the father. A significant issue in these proceedings is whether the orders sought by the father will be counter-productive to the achievement of that goal by adversely impacting upon that relationship. That possibility was specifically noted in the report of Dr R, including in passages that I have extracted above.
Ultimately, the father asserts that it is necessary for the children to spend more time with him in order for their relationship to develop and to counter what Dr R referred to as the possible “indirect” influence that they may be exposed to in the mother’s household.

The need to protect the children from harm

In her report, Dr R stated the following:
In my view there is a low probability that the children are at risk of being subjected to abuse, neglect or family violence. If there was family violence within the parents' relationship, it appears that the children have been generally unaware of it, apart from some recollections of "fighting".
I do not consider that increasing the children’s time with the father from two to four hours each week presents an unacceptable risk of harm to them.
I accept that there is a risk that the children will reject this change of circumstances. However, it is clear from the subpoenaed records of E Group that, when the children have not sought to spend time with the father in the past, they have been capable of safely catching public transport from their school to their home. While it is hoped that the children will take up the additional time with the father, I do not consider that the possibility of them rejecting that time will cause them to be at risk of harm.
Further, the continued supervision of the children’s time with the father will ensure that there is appropriate interaction and communication between the father and the children. Under those circumstances, I do not consider that the children are at risk of psychological harm in spending additional time with the father.

Additional considerations

While there are a range of additional considerations set out in s 60CC(3) of the Act, in Banks & Banks (2015) FLC 93-637, the Full Court, adopting a common sense approach, said at 80,111:
It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the [children], require determination prior to a proper determination at a trial.
While I have considered each the factors set out in s 60CC, in accordance with Banks & Banks (supra), I propose to primarily focus on those factors appropriately identified by the ICL as being of particular relevance in these proceedings.

The children’s views

In terms of s 60CC(3)(a), being any views expressed by the children, Dr R stated that the children “expressed very clear views that they wished the current living and spend time with arrangements to remain in place”.
In respect to X, at paragraph 104 of her report, Dr R stated:
I asked [X] how he would feel if the Court required him or his siblings to spend extended time with his father. He said he would not do this and he would ensure that he ran away or would not go. He was emphatic and adamant in his response. His body language indicated great resistance. With respect to supervision, [X] was very positive about the supervisors who he described as "really nice and kind". However, he generally described the supervision as "really boring". He said "mostly we are just sitting there". He described [Mr Derrick] as getting books out to read them stories and thought this was an example of his father treating him in a "really childish way". He said that his father "doesn't even know who we are - he treats us as if we are much younger". [X] reiterated that the supervisors "make me feel really good". He said the worst thing about supervision is that his father forces him to do boring things. He said the worst thing is the taking of the photos and where his father insists that they are hugging. He also said his father "makes me hug and he kisses me every five minutes" which he found annoying.
However, at paragraph 148, Dr R stated that she felt there were aspects of X’s views that were “either exaggerated accounts of the father’s behaviour or exaggerated criticisms of the father’s parenting”. In that respect, Dr R stated:
… These sorts of attitudes and views are developmentally normal for an adolescent; however, they may have become more entrenched due to the family conflict.
Overall, Dr R expressed the opinion that the Court should give considerable weight to the views of X, stating that:
[X] presented as a thoughtful, mature and considered adolescent. Although I felt some aspects of his views had been more exaggerated complaints, I think there were genuine concerns and valid reasons he had for wanting a more limited relationship with his father. [X] presented overall as a very compliant, polite and cooperative adolescent. He was polite and considered, although awkward with his father. However, when I pushed him on the issue of how he would respond if he was required to spend more significant time with his father, [X] indicated that he would resist this, would run away would seek to otherwise thwart the time.
Dr R summarised her assessment of Y’s views at paragraph 151 of her report, as follows:
In the case of [Y], he also clearly expressed the view that he wished for the status quo to remain with respect to the living arrangements. [Y] was adamant that he would resist spending unsupervised or extended time with his father. As was the case with [X], it was my view that [Y's] views were based on a combination of his real experience of his father, combined with the effect of some exaggeration of negative attributes of the father. I thought it insightful that [Y] himself was able to notice that his own memory may have been contaminated by repeating in his own mind the negative things his father had done.
Dr R was of the opinion that the Court should give some weight to Y’s views, however she also noted the following:
There are other aspects of [Y's] views which I think are more reflective of his own anxiety. For example, he repeatedly expressed the view that he is worried about his father wanting "revenge".
In respect to Z, at paragraph 127 of her report, Dr R stated:
I asked [Z] some questions about supervision. She described supervision as being "OK" with the supervisors. She said she still worries that her father is going to question her or ask her questions about things she has said. In addition, she said that [the father] "treats us like two-year olds" and refers to things such as "gold koala stamps". Overall, [Z] said she is "happy with the way things are now". She said she would be scared if she had to spend time at her father's house. She reiterated several times that she was "scared" that her father was going to do something or question her about the things that she has said.
At paragraph 155 of her report, Dr R expressed the following in relation to Z’s views:
[Z's] views were rather less mature than her brothers, although I felt she was a very mature child for her age. However, her criticisms of her father appeared to be mild dislike of her father's parenting style, a rather firmer dislike of the degree to which she feels her father has questioned and interrogated her and a loyalty towards her brothers. I think that the parents and the Court should consider these views.

The nature of the children’s relationships

In terms of s 60CC(3)(b), being the nature of the relationship of the child with each of their parents and other persons, Dr R considers the children have a close, supportive and significant attachment to the mother and noted that the children referred to the mother helping them cope to adapt to spending extended time with the father.
Dr R also notes that the children have “an extremely close and significant sibling bond”, as follows:
Surprisingly, for children with such different personalities, genders and ages, the three siblings were emotionally bonded, kind and relatively conflict free with one another. I felt that both [Y] and [X] were very supportive of their younger sister in a way which was mature and affirming. Similarly, I felt that [Y] and [X] were supportive of one another, and their relationship demonstrated no signs of competitiveness or heightened conflict. The fact that the children have had shared experiences and have had continuity and consistency of living arrangements has, in my mind, strengthened this bond. This sibling bond is an important one in terms of the children's identity and psychological wellbeing.
At paragraph 159 of her report, Dr R recorded her observation that the children were able to interact politely, although somewhat awkwardly, with the father and were “open to supervised visitation” with the father.
At paragraph 164 of her report, Dr R summarised her opinion of the children’s relationship with the father in the following terms:
Overall, I think that all three children have fragile and vulnerable relationships with their father. I think that this has come about for multiple reasons. In part, I think it is due to the children's personalities, their loyalty to their mother and the degree to which they have become aware of the conflict between the parents. However, I think it is also in large part due to the stark differences between the parents in terms of their parenting styles and sensitivities to the children. I think the children's fragile relationship with their father has also been driven in part by their sibling bond. I think that [Y] first experienced a very difficult relationship with [the father], and that in part, [X] and [Z's] attitude to their father has been influenced by their closeness and loyalty to [Y].
A reminder of the impact of the ongoing family disputation and this litigation on the children, and Y in particular, are the following observations of Dr R:
… there were many times throughout the interview that he displayed significant anxiety. For example, at times when he was discussing his father, [Y] was wringing his hands and displaying physical agitation. There were other times throughout the interview where he became quite distressed.
Dr R also recorded that the children informed her they were “enjoying positive relationships with other members of the paternal family”.

Change of circumstances

In terms of s 60CC(3)(d), being the likely effect of any changes in the children's circumstances, at paragraphs 173 and 174 of her report, Dr R stated:
Unfortunately, the children have experienced a long period of time in their development where they have not been living with their father, and when they had no contact with him and more recently been limited time with him. This is occurred at a critical time in their development namely, the preadolescent period. In my view, the real risk now in any significant change in the children's circumstance is that the children, and particularly [X] and [Y] will be non-compliant. Both boys expressed to me that they would run away or undermine arrangements that had them spend more extended time with their father. They were emphatic and adamant about this.
The real risk, in my view, is if the children are immediately required to spend more time with their father, then this may undermine the fragile connection that they have with him now, and completely undermine any possibility for future relationship connection. If that happens, I think that the children will sabotage the time and it will further entrench their opposition to their father. [Emphasis added].

Parental capacity

In terms of s 60CC(3)(f), being the capacity of the parents to provide for the needs of the children, Dr R expressed the opinion that the mother presents “as kind, empathetic and sensitive to the children’s emotional needs”. In that context, Dr R noted that the mother has appropriately sought psychological assistance for the children when it has been necessary.
In terms of the father’s parenting capacity, Dr R found that he has a relative lack of insight into the children's reactions, emotions and attitudes and has been unable to modify his interactions with the children accordingly. In this way, “the children have been adversely affected by the father's personality and parenting style to the extent where it has interrupted their relationship with him and seriously contaminated their capacity to repair the relationship”.
At paragraph 176 of her report, Dr R recorded that she has mixed views regarding the capacity of the father to provide for the needs of the children, including in respect to their emotional and intellectual needs. In that context, Dr R stated:
On the one hand, the father has an exceptionally high capacity to provide the children with love, devotion and unique experiences. The father presents as sincere and passionate in his desire to expose the children to a range of experiences and enhance their intellects. On the other hand, I think the father has some difficulty understanding the different emotional experiences of the children and modifying his behaviour and parenting accordingly.

Parental attitude

In terms of s 60CC(3)(i), being the parties’ attitudes towards the children and the responsibilities of parenthood, at paragraph 165 of her report, Dr R expressed the view that:
… I think that the father has an overall idealised view of parenthood and his role as a father. He is obsessively focused on his role and influence in the children's lives. However, I think he has a relative lack of insight into the children's reactions, emotions and attitudes and has been unable to modify his interactions with the children accordingly. Most disturbingly, however, the father has involved the children in the dispute between the parents. I am not sure that this was his intention, however his rather intense personality and habit of filming and questioning the children has given them strong emotional messages, which they have been unable to deal with.
In a similar context, at paragraph 177 of her report, Dr R expressed the following opinion:
I think the father has involved the children in the dispute to an extent which has been emotionally overwhelming and psychologically taxing for them. The children and father's accounts of him videoing them and questioning them about their preferred living arrangements is an example of an experience where the children felt threatened and coerced. Although the father was able to acknowledge, to a degree, that his behaviour in some of these questioning and recording sessions was emotionally leading, he strongly suggested that the children were honest and positive about the things they were saying. I think this reflects very poorly on the father's capacity for reflection and insight and suggests to me that he is unable to put the children's needs and views above his own. In fact, I think he is unable to see the children's needs and views where they clash with his own.
A matter that I note, which, at least at a preliminary stage, gives some cause for concern is that, in a text message sent on 12 November 2018, the father expressed concern that he had “never been able to speak to my children in more than three years to have a heart-to-heart conversation with them about what is wrong and how we can make it right”. That message was sent in circumstances where father was understandably distressed at the fact that Z had taken a bus home from school, rather than attending a scheduled visit with him. The father’s desire to “make things right” between himself and the children is also entirely understandable. However, after reading Dr R’s report, he should appreciate that the children do not want to be questioned by him in respect to those matters, and that doing so would likely backfire in the sense of causing further deterioration, rather than improvement, to those relationships. Clearly, a better approach would be to engage the services of a mutually acceptable therapist to assist the children and the father to repair their relationships.

In that context, it is to the father’s credit that he acknowledges that it is appropriate for the children and himself to attend family therapy. However, for reasons which I discuss, it is important that the therapist engaged to provide that service is mutually acceptable to the parties.

Family violence

In terms of s 60CC(3)(j), being any family violence involving the children or a member of their family, it is not possible, in these interim proceedings to make findings in respect to the mother’s allegations that the father has engaged in conduct that constitutes family violence.
From the perspective of the children, Dr R states that there is no evidence, from her interviews with them that they have been exposed to violence. While X did speak about the father shouting at the mother, his memory was non-specific and vague.

Avoiding further proceedings

In terms of s 60CC(3)(l), being whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children, the ICL submitted the following:
It is preferable to make orders that would be least likely to lead to the institution of further proceedings. In light of [Dr R’s] concerns about the real risk if the children are required to spend more time with their father, and the reported comments of [X] and [Y], namely, that they expressed they would run away or undermine arrangements that have them spend more extended time with the father, it is submitted that the current arrangements should not change.
There is merit in that submission, however, the evidence that is available, at this preliminary stage, indicates that the children’s relationships with the father are not progressing as positively as he would undoubtedly like them to be. The father is of the view that an order providing for the children to spend additional time with him would provide him with a greater opportunity to develop those relationships, and would potentially counteract any indirect influence that the children may be subject to in the mother’s household that adversely impacts upon their relationships with him.
The risk for the father, in that regard, is that pressing that application could actually backfire and create greater detachment between himself and the children, rather than enhancing their relationships. In fact, Dr R cautioned that this is likely if the children are required to immediately spend additional time with the father.
In circumstances where the relationships between the children and the father are fragile, subject to addressing the issue of risk, it is important that the father feels that he has been provided with a reasonable opportunity to address how those relationships should develop. This includes his input in respect to both the nature of the time that the children spend with him and the supervision that is provided during those visits. If that opportunity is not provided, there is, in my view, an increased prospect of there being further litigation in respect to this matter.

Other relevant circumstances

In terms of s 60CC(3)(m), being any other fact or circumstance that the Court thinks is relevant, at paragraph 191 of her report, Dr R expressed the opinion that:
I think it would be helpful for the father to participate in interpersonal therapy to assist him reconnect with the children and modify his parenting and communication practices so as to facilitate the children's relationships with him. Such therapy should be undertaken by a practitioner with expertise in this area so that, if deemed appropriate, the children may participate in the process in the future.
It is to the father’s credit that he accepts that engaging an appropriate therapist would be beneficial. However, for reasons which I will subsequently discuss, I am of the view that the therapist so engaged should be one that is mutually acceptable to the parties.

Orders

I will now consider the orders sought by the father in the sequence in which he seeks them.
Firstly, the father seeks an order for the children to attend therapy with him, to be conducted by his treating psychologist, Dr S. Dr S has filed an Affidavit in these proceedings, indicating that she is prepared to provide such therapy and considers that it is appropriate for her to do so.
I have previously set out the concerns of the mother and the ICL in relation to the issue of Dr S maintaining objectivity and potentially becoming conflicted, were she to provide such therapy. Without questioning the judgment of Dr S, I accept that there is potentially some validity to the concerns of the mother and the ICL, in that regard. I also find that, if the mother objects to Dr S providing that service, the therapy may have somewhat limited utility, given the close relationship between the mother and the children and their potential to be influenced by her views. For those reasons, the order for family therapy that I make is a variation of the order proposed by the ICL.
Secondly, for reasons set out above, the father seeks an order to increase the amount of time that the children spend with him from two to four hours each week. I have referred above to instances where, on occasions, the parties have extended the amount of time that the children have spent with the father to three or four hours.
I accept that providing for the children to spend additional time with the father would potentially enhance the prospect of their relationships with the father being restored. Further, Dr R has expressed the opinion that the children are not at physical risk in the care of either parent. I accept that to be the case.
However, a significant concern regarding the amount of time the children spend with the father being increased is the fact that X and Y informed Dr R that they would not attend visits with the father if the timeframe for those visits was extended. Dr R expressed the view that, if the children are required to “immediately” spend additional time with the father, there is an increased risk that X and Y would seek to return home on their own or seek the assistance of third person to collect them, rather than attend a visit with the father.
A further issue of risk is the children’s concern that they will be questioned by the father regarding difficulties in respect to their relationship with him. I am satisfied, however, that those risks can be successfully managed by the supervision of the children’s time with the father. The father does not propose that such supervision be abandoned.
Ultimately, in circumstances where orders providing for the children to immediately spend additional time with the father would likely be counter-productive, I propose making an order for the children to spend an amount of up to four hours each week with the father, as may be reasonably requested by the father. I will qualify that, in making such a reasonable request, the father is required to have regard to the views of the children, as communicated through the family therapist, as well as the advice he receives from the therapist.
In making such an order, however, I record that the father is clearly on notice, from the contents of the report of Dr R, that unless he approaches this issue with appropriate sensitivity and discretion, there is every prospect that his actions, in seeking additional time with the children, will be counter-productive.
Thirdly, the father seeks an order that supervision service engaged for his visits with the children be changed from E Group to B Group. The mother opposes any such change and notes that the children are comfortable with the current service provider who, the mother believes, has actually provided some reassurance to the children in circumstances where they otherwise may have been reluctant to have attended a visit with the father.
On the other hand, the father notes that a disadvantage of the service provided by E Group is that, to date, apart from pursuant to a request made by subpoena, that service has not provided reports of the children’s visits with him. The father contends that he is disadvantaged in presenting his case, in circumstances where he does not have access to such reports on an ongoing basis. In circumstances where the father is prepared to pay for such reports, I accept that it would be desirable for the father to receive ongoing reports provided by the supervision service of the time that the children spend with him. Such reports may also be of assistance to the family therapist.
The absence of reports from E Group may be addressed if that service is able to provide regular reports of the children’s visits with the father. Accordingly, I propose to make an order for the service providing supervision of the children’s time with the father be as agreed between the parties. This will enable to parties to clarify whether E Group is prepared to provide regular written reports of the children’s visits with the father. If that cannot be achieved or the father still believes that there are difficulties with that supervision service, then, in the absence of agreement between the parties, supervision is to be provided by B Group.
Again, however, if that decision is made by the father, he is on notice that the children are comfortable with the current service provided by E Group and that his actions in changing that arrangement could well be counter-productive in that there is every prospect that it will cause offence to the children and be a source of tension between them and himself.
Fourthly, the father has sought an order that the children’s school be the changeover location for the time that they spend with him and that he be permitted to attend that changeover. As stated, the mother opposes such an order being made.
The history of this matter and the contents of Dr R’s report satisfy me that the children are continuing to have difficulty in respect to their relationships with the father. The reasons for that will, of course, be matters that will be considered at final hearing. Taking a cautious approach, in these interim proceedings, I am reluctant to make an order that could adversely impact upon the positive experience that the children have at their school or cause a situation where they may be reluctant to attend school. Moreover, the order proposed by the father would appear to remove the prospect of the children spending time with him on weekends when, as noted in a text message from E Group to the father “it may be possible to arrange a more pleasant leisurely activity” for the children and the father to enjoy.
Accordingly, I do not propose to make an order changing the changeover location to the children’s school. As a consequence, the parties retain flexibility in determining where that location should be between themselves, in consultation with the supervision service provider. In the event that the parties are unable to reach such agreement, the default position will be that changeover shall occur at the location of the previous week’s changeover.
Fifthly, the father sought an order that the children be permitted to spend supervised time with him at his home. Once again, other things aside, that would be an appropriate location for the children to spend time with the father, particularly during the colder months of the year. That location may also provide the opportunity for the children to engage in more leisurely activities with the father, such as watching videos and engaging in electronic gaming.
However, the mother contends that the children object to attending visits with the father if they are at his home. In that respect, at paragraph 21 of her Affidavit, the mother states:
In December 2018 after the visit [X] was in the car on the way home and said to me "Mum, Dad has started asking me how I want my room to be decorated. It was awkward. Mum, seriously there is no way I can stay there. I would not even turn up to school if they say I have to go to his house".
At paragraph 127 of her report, Dr R stated that Z advised her that “[s]he would be scared if she had to spend time at her father's house. She reiterated several times that she was "scared" that her father was going to do something or question her about the things that she has said”.
Again, taking a cautious approach, in these interim proceedings, I do not propose to make an order specifically providing for the father’s home to be an appropriate location for the children to spend time with him. The orders will remain silent on that issue. That is not to say that, if at some point, following the discussion of this issue in family therapy, the parties agreed that the father’s residence was an appropriate location for the children’ visits with him, this could not occur.
Finally, during the course of the proceedings, Senior Counsel for the father requested that the Court confirm that there is no impediment to the father attending the children’s’ sporting events and extra-curricular activities. The orders made on 28 August 2017 do not impose any restrictions on either of the parties’ movements and neither party has sought orders to that effect.
Again, ordinarily, the attendance of parents at their children’s sporting events and extra-curricular activities would be something to be encouraged. However, in the context of the history of the children having a strained relationship with the father, common sense again suggests that this issue should appropriately be the subject of consideration in the context of family therapy. The risk of the father attending such events, without appropriate therapeutic consultation, is that his intention of showing support and encouragement to the children may again be counter-productive in the sense that his unannounced attendance may evoke a sense of discomfort in the children.
It should also be noted that the father foreshadowed making another interim application for parenting orders if progress were to be made during the course of family therapy. It is not appropriate, at this point in time, that I reflect upon whether such an application would be justified in terms of the inevitable cost to the parties and Court resources that such a further application would occupy.
For all of these reasons, I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 11 January 2019.

Associate:

Date: 11 January 2019

[2019] FamCA 2

11 January 2019

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