Doherty and Doherty and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOHERTY & DOHERTY & ANOR

[2015] FCCA 2220

Catchwords:
FAMILY LAW – Parenting – whether the children should spend time and communicate with their father and paternal grandmother – by the time of final hearing father not seen or communicated with children for three years – where one of the children suffers from significant emotional disturbance including post-traumatic stress and anxiety disorder – where the mother alleges family violence to which the children were exposed – where there were several abusive telephone calls between the father and the children.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

MRR v GR [2010] HCA 4

Applicant:

MS DOHERTY

First Respondent:

MR DOHERTY

Second Respondent:

MS V DOHERTY

File Number:

WOC 431 of 2012

Judgment of:

Judge Altobelli

Hearing dates:

13-15 July 2015

Date of Last Submission:

15 July 2015

Delivered at:

Wollongong

Delivered on:

25 September 2015

REPRESENTATION

Solicitors for the Applicant:

Mr Csapo of Fulcrum Legal

The First Respondent appeared in person

The Second Respondent appeared in person

Counsel for the Independent Children's Lawyer:

Ms Humphreys

Solicitors for the Independent Children's Lawyer:

Maguire & McInerney Lawyers

ORDERS

The Children the subject of this Order are:
(a)X born (omitted) 2000; and
(b)Y born (omitted) 2004
The parents the subject of this Order are:
(a)Ms Doherty
(b)Mr Doherty
The paternal grandmother the subject of this Order:
(a)Ms V Doherty
That the Mother is to have sole parental responsibility for the Children in relation to the care, welfare, and development of a long term nature involving the Children to include but not be limited to issues about:
(a)The education of the Children both current and future;
(b)The Children’s religious and cultural upbringing;
(c)The Children’s health;
(d)The Children’s names;
(e)Any change to the Children’s living arrangements that may make it significantly more difficult for the Children to spend time with any parent.
That the Children are to live with the Mother.
That there is no Order in respect of the time that the Children spend with the Father.
That there is no Order in respect of the time that the Children spend with the Paternal Grandmother.
That the Father, other than with the written consent of the Mother, is otherwise restrained pursuant to Section 68B of the Family Law Act 1975 from attempting to contact the Mother by any means, including through a third party; approaching, or coming within 100 metres of any place where the Mother might from time to time reside.
Pursuant to Section 68C of the Family Law Act 1975 if a Police Officer believes on reasonable grounds that the Father against whom the injunction is directed, has breached the injunction or has otherwise caused or threatened to cause bodily harm to the Mother, or is harassing, molesting or stalking the Mother that Officer may arrest the Father without a warrant.
That the Mother shall keep the Father informed as soon as it is reasonably practical of:
(a)Any serious medical problems or serious illnesses suffered by the children.
(b)Any permanent medications that have been prescribed for the children;
That the Mother provide the necessary authorities to the Principal of each school attended by the Children to ensure that the school forward to the Father copies of the Children’s school reports as they fall due along with copies of all school circulars, newsletters. A copy of this Order is sufficient for compliance.
That the Mother do such further and other acts and sign such documents so as to permit the Father to obtain school photos of the Children and/or completion of the requisite order form for such photographs.
That the Mother is to provide within 7 days of the date of Orders the Father with an email address for the Father to communicate with the Children.
That the Children are able to communicate and/or reply to the Father’s emails in accordance with their wishes noting the Father’s email address as (omitted).
That the Paternal Grandmother is permitted to send gifts, cards and letters for the Children to the Mother’s home address where the children reside.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 431 of 2012

MS DOHERTY

Applicant

And

MR DOHERTY

First Respondent

MS V DOHERTY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is a very sad case. Two boys, X, 14, and Y, 11, have lost their relationship with their father and paternal grandparents. The reasons for this are complicated, and will be discussed below. The Court must decide what Orders should be made for the children to spend time with and communicate with, their father and parental grandparents.

Background

The Applicant in this case is the boys’ mother. She is 37 years old, describes herself as a (occupation omitted), and lives with the children in a suburb of (omitted) in the (omitted) region of New South Wales. The First Respondent in the proceedings is the children’s father. He is 38 years old, is currently unemployed, and lives in a small country town less than an hour’s drive away from where the children live. The Second Respondent is the children’s paternal grandmother. She is 54 years old, describes herself as retired and lives in another suburb of (omitted), quite close to the children’s home. Insofar as the application involves the Second Respondent Paternal Grandmother, it was common ground that the Orders she sought were intended to benefit the Paternal Grandfather as well, even though he did not give evidence in this case.
The parents entered into a de facto relationship in 1999, and married later that year. X was born in 2000, and Y in 2004. The evidence given by both parents suggests that there were tumultuous times during the relationship. The Mother asserts that it was violence and the Father agrees that there was conflict.
Separation took place in July 2010, when the Mother and children left the home following what she asserts was a violent incident.
The children commenced spending time with their father and paternal grandparents on a regular basis shortly after separation, and this continued until March 2012. Indeed, it is common ground that the Father has not spent time with the children since 15 March 2012. The post-separation period prior to the cessation of contact was by no means uneventful. Firstly the Mother, then X, and then Y became involved in counselling with Ms B, a psychologist. The Mother asserts, and the Father does not deny in any substance, that the post-separation period was still conflicted. The Mother asserts the Father was violent, the Father denies this. The Mother’s evidence sets out her concerns about inappropriate, and arguably emotionally damaging telephone conversations between the Father and the children, not only up until the time that the children ceased to spend time with the Father, but also subsequent, although not for a long period of time.
By the time of the final hearing, therefore, the two boys had not seen their father for three years and had had no communication with him in that period. Moreover, they had not spent time with the Paternal Grandparents in that period, or had any meaningful communication with them.
By the time of the final hearing, the Orders sought by the Mother included an Order for sole parental responsibility to her, that the children live with her, and that the Father be restrained from spending time or communicating with the children unless as agreed between the parents, and having regard to the children’s wishes. Both the Father and grandparents, however, would be able to send the children birthday, Christmas or special occasion cards and presents. A number of ancillary orders were sought. At the hearing the Mother was represented by her solicitor, Mr Csapo. The evidence led in her case consisted of the Mother’s Affidavit sworn 15 June 2015, an Affidavit of Ms B, psychologist, sworn 25 June 2015, and an Affidavit of Dr P, a psychiatrist, affirmed 21 March 2013. Dr P was not required for cross-examination, but both the Mother and Ms B were cross-examined.
The Father represented himself at the hearing. He explained that the Orders he sought were those set out in his Response filed 20 December 2012, i.e. equal shared parental responsibility, the children live with their mother, but spend time with him each alternate weekend as well as on special days. The only evidence led in the Father’s case was his Affidavit of 20 December 2012. He was given the opportunity to lead further evidence-in-chief, and he was cross-examined.
The Paternal Grandparents represented themselves at the final hearing, with the Paternal Grandmother undertaking the advocacy. The Orders that she sought are contained in her Response filed 13 June 2013, namely, that the Paternal Grandparents spend time with the children from 9:00am until 5:00pm each alternate Saturday or Sunday and other times as agreed. The only evidence led on behalf of the Paternal Grandparents was the Paternal Grandmother’s Affidavit, filed 19 March 2015. She, too, was given the opportunity to lead evidence-in-chief. She was cross-examined.
As the evidence evolved, however, and by the time of closing of submissions, both the Father and Paternal Grandmother indicated that they would be prepared to accept any order to spend time and communicate with the children, though their preference was what had been originally sought by them. The Father frankly conceded that he would even accept an order for supervised time with his boys.
The children were independently represented by their lawyer Mr Davies and represented at the hearing by Ms Humphreys of Counsel. The evidence led on behalf of the children included the Child Inclusive Conference Memoranda of 17 April 2013 and 23 October 2013 (Exhibit ICL1) and the Family Report prepared by Family Consultant Ms K, dated 5 May 2015. Ms K was cross-examined on her Report, as well as the two Memoranda that were produced after the Child Inclusive Conferences.
By closing submissions, the Orders proposed by the Independent Children’s Lawyer was sole parental responsibility to the Mother, the children live with her, and a restraint on the Father approaching the Mother or communicating with her by any means. There would otherwise be no other order for the children to spend time with or communicate with either the Father or the Paternal Grandparents, but there would be provision, similar to the Orders sought by the Mother, for the transmission of gifts, cards, and letters. The Minute of Orders sought by the Independent Children’s Lawyer is reproduced in the first Schedule to these reasons.
This is a difficult case. The boys’ relationships with people who are very important in their lives, at one stage, has been lost. The Father and the Paternal Grandparents are grieving the loss of this relationship. Their significant emotional pain was reflected, at times, in how the proceedings were conducted by them.
By way of outline of these reasons to judgment, the applicable law will be set out. The evidence of Dr P, Ms B, and Ms K will be set out and discussed first. This is because they are each experts in their own right and could be expected to provide not just expert evidence, but objective evidence, even though in the case of Dr P and Ms B, they were experts involved in treatment with members of the family.
The evidence of the Mother, Father and Paternal Grandmother will then be set out and discussed.
After that, the evidence will be considered using the framework of s.60CC of the Family Law Act 1975 (hereafter referred to as ‘the Act’). This will be followed by a discussion of what orders are in the best interests of X and Y.

Applicable law

The applicable legislation is the Family Law Act 1975. As these proceedings were commenced prior to the amendments inserted by No 189 of 2011, this discussion will make reference to the relevant provisions that were in force prior to the 2011 amendments to the Act.
In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1)    The objects of this Part are to ensure that the best interests of children are met by:
(a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)    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.
(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).
(3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)    to maintain a connection with that culture; and
(b)    to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)    to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(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.
If the presumption applies, the Court is required to consider certain things:

65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Substantial and significant time
(2)    If:
(a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:
(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and

(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and

(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)    how far apart the parents live from each other; and
(b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)    the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)    the impact that an arrangement of that kind would have on the child; and
(e)    such other matters as the court considers relevant.

Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)    Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)    The primary considerations are:
(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.
Note:    Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)    Additional considerations are:
(a)    any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)    the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)    other persons (including any grandparent or other relative of the child);
(c)    the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)    the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)    the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)    any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)    if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)    the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k)    any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii)    the making of the order was contested by a person;
(l) 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 child;
(m)   any other fact or circumstance that the court thinks is relevant.

The term ‘family violence’ is defined in s.4AB of the Act:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
In MRR v GR [2010] HCA 4 the High Court said
Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."”
Sub-section (3) explains what is meant by the phrase “substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

The evidence of Dr P

Dr P is a child and family psychiatrist who swore an Affidavit on 21 March 2013. He was not required for cross-examination. His Affidavit annexes his report of 7 August 2012. X has been a patient of his since 2010. He would have been about 10 years old when he first started seeing Dr P. In his report of 7 August 2012, Dr P makes the following observation:
Perhaps unsurprisingly, X has struggled with his emotions with particular difficulties over the last six months. He is often tearful. He speaks of missing his grandparents. He can play very roughly with his brother. At home, X can be non-compliant and he does not know when to stop. He picks at his arms and legs. A few months ago he was changing his underpants several times a day. This has settled of late. He can still chew his clothes. He regularly complains of abdominal pain, headaches and feeling nauseous. His sleep can be poor. He can take a couple of hours to fall asleep. Both X and brother sleep in mother’s bed. X does not snore. X is often anxious and thinks the worst. He worries about his father and worries that bad things might happen to other family members. He can have outbursts of frustration where he “explodes”.
Later in his report, he records that as a result of an updated speech pathology assessment that X has undertaken, he “was found to have mild delays in receptive and expressive language”. He noted that records suggested X’s full-scale IQ was found to be in the low-average range “but there was a three-year delay in reading”.
Dr P noted:
In summary, X is suffering a significant emotional disturbance. Such disorders often do not fit easily into any one diagnostic category, but a diagnosis of anxiety disorder/post-traumatic stress disorder seems most appropriate. There are also significant specific learning difficulties. Attention is another possible weakness. On a positive note, X has likeable qualities and mother is sensitive to his needs. I suspect there will be challenging times ahead but I would be hopeful of a positive outcome in the longer term.
In concluding this report, Dr P encouraged ongoing contact with Ms B, a psychologist. He also raised the possibility of Luvox as medication for X.
Updates of Dr P’s reports are annexed to the mother’s Affidavit. Thus, on 28 August 2013, Dr P records a diagnosis in relation to X “of severe generalised anxiety disorder”. He also expressed the opinion that:
A major contributor to X’s anxiety has been the ongoing uncertainty around Family Law Court action and contact with paternal family. After a period of stability, his emotional state has again deteriorated after the last couple of months. This appears to be related to commencement of further Family Court action.
Dr P’s most recent report is dated 8 May 2015. Again, his diagnosis was of “moderate-severe generalised anxiety disorder”. He records that he had, in fact, prescribed Luvox 100 milligrams at night and expressed the opinion that it “is likely X will need to remain on this medication for the foreseeable future”. He concludes:
X has shown good progress in a stable environment. For this progress to continue, it is imperative for his environment to remain as stable as possible.
As indicated above, Dr P was not required for cross-examination. The Court accepts his evidence. Clearly X suffers from a long-standing anxiety disorder. In this regard, he is a child with special needs and suffers from a sensitivity that needs to be very carefully considered in the course of determining what orders are in his best interests.

The evidence of Ms B

In her Affidavit of 25 June 2015, Ms B annexes her four reports covering the period 20 June 2012 to 16 July 2014. Her first report is dated 20 June 2012. In her summary and recommendation, she observed that X “is a significantly stressed and traumatised child”. She believed that he was a victim of domestic violence from an early age and has suffered physical abuse. She thought that the domestic violence and psychological abuse continued beyond the end of the parents’ relationship. The trauma that X has suffered has affected his functioning and ability to cope and has caused him to develop symptoms of post-traumatic stress disorder, generalised anxiety and some obsessive-compulsive disorder symptoms. In her opinion, he has become anxious and hyper-vigilant. She recommended that X consult a child and adolescent psychiatrist. This recommendation may well have been the basis for X consulting Dr P.
Ms B’s report of 7 August 2013 focuses on X’s relationship with the paternal grandparents. Ms B reports that X
described that he feels panicked when he thinks about seeing his paternal grandparents because he is scared of his dad turning up and he doesn’t trust them not to tell his father as they previously offered him money to lie in Court. He said he is also scared that they will talk to him about his father and ask him lots of questions about his mum and say bad things about his mother.
In this report, Ms B also refers to Y and her discussions with him about contact with the Paternal Grandparents. She reported that Y
was very clear in his decision that he didn’t want contact with his paternal grandparents as he is afraid they would ‘take him away and that he would never see his mum again’. He said he was also worried that they would say lies to him and would talk to him about Court. Y said that he believes that they would get in trouble for lying and that he was angry with them about the lies. When asked if he ever wanted to see his grandparents, Y relied, ‘maybe when I am 15,’ but when asked what would be different when he was 15, he said he would be bigger and more able to defend himself.
In her report of 16 September 2013, Ms B expressed her “significant concern” as a result of the “deterioration in X’s psychological functioning since the proceedings were resumed and the paternal grandparents became involved in the proceedings”.
Her final report is dated 16 July 2014. In this report, the issue was raised about a therapeutic setting to assist the boys to consider the possibility of spending time with the paternal family at some time in the future. Ms B emphasised that “the decision and therapeutic process in this regard will most definitely need to be initiated and driven by the children”.
Ms B was cross-examined. A number of important issues emerged from this that emphasised the need for the Court to be very cautious in assessing the weight to be given to Ms B’s evidence. For example, when Counsel for the Independent Children’s Lawyer cross-examined Ms B on the notes that were produced in response to cross-examination, it became very difficult for the Court, even with Ms B’s assistance, to establish whether the matters recorded where statements sourced from the children themselves, or were statements that the Mother had made as reports of what she said the children had said. It was by no means clear that the children were always individually interviewed.
It is quite clear that Ms B did not perceive her role as involving any element of reality testing what the boys were telling her. She conceded, quite appropriately, that the boys were aligned to their mother, were loyal to and protective of her. She conceded, again quite appropriately, that it was quite possible that the Mother’s anxieties could be transmitted to the children, but she insisted that if that were the case, she would have reported this. The Court does not share her confidence in this regard.
There are parts of Ms B’s evidence that the Court accepts unequivocally because, for example, it is consistent with other evidence. For example, her diagnosis of the psychological symptoms that X suffers are largely corroborated by Dr P’s report. In this Court’s view, however, less reliance can be placed on the validity of what the children reported to her about the Paternal Grandparents. In this regard, the concern is not that the children did not say what they did, but rather that the Court should be concerned about the weight to be given to their comments because of the alignment issues involving their mother, and findings that the Court will make about the deep feelings of suspicion that the Mother has towards the paternal grandparents.
It may well be that the Court does not accept, however, from Ms B’s evidence that the children experienced the anxiety about spending time with their grandparent as may have been expressed to Ms B. Nor does the Court necessarily accept that the deterioration in X’s psychological functioning was attributable to the Paternal Grandparent’s involvement in the proceedings.
Having regard to all the evidence, whilst the Court accepts that X’s psychological functioning did deteriorate during the course of these proceedings, this is likely to have been attributable to his mother’s response, as well as to the Father’s decision to continue litigation that he should have known would be stressful to the children.
The Court unequivocally accepts her view that in terms of therapeutic processes, this needs to be initiated by the boys. Family Consultant Ms K was of the same view.
There are also records in Ms B’s note of comments attributed to the children which, if accepted as being true, are corroborative of the Mother’s assertions of family violence. As it turns out, for the most part, findings of violence will be made as a result of the Father’s concessions in any event and thus the comments the boys have made are indeed corroborative.
None of what the Court has said should be interpreted as being critical of Ms B. Her role was a therapeutic one, not a forensic one. She has, without doubt, provided invaluable therapeutic assistance to this family, especially to X. She would also appear to play a key role in ongoing therapy with the boys, X especially.

Findings of the Family Consultant

Family Consultant Ms K was involved with the family. She conducted the initial Child Inclusive Conference on 17 April 2013, and then a later Conference 23 October 2013 involving the Paternal Grandparents, and then prepared a Family Report dated 5 May 2014. Ms K was cross-examined at the hearing.
The initial Child Inclusive Conference was attended by the parents and both boys. X was firmly of the view that he did not want to spend any time with his father. Y was of the same view. The Father was convinced that the loss of his relationship with the boys was attributable to the Mother. Ms K records on the penultimate page of the Child Inclusive Conference Memorandum as follows:
In helping Mr Doherty [sic] explore what he might propose after hearing the writer’s feedback, he said that he is uncertain and now wonders whether, in light of the stress which X seems to be experiencing (he links this to the fact that X has had to be referred to a psychiatrist and is on medication) he is wondering whether or not he should continue to seek to spend time with the children. Mr Doherty said he believes that the children, while needing to have a relationship with both their parents, need also to be protected from feeling that they are in stressful situations.
It was suggested to him that, if he does not propose continuing to seek to spend time with the children, he might write them a letter which the writer could read to them at some future time so the children have the experience of knowing that the current situation is more or less finalised. Such a letter could also provide the children with contact details for their father, should they wish to contact him in the future.
The second Child Inclusive Conference involved the boys, their mother, and the paternal grandparents, and was held on 23 October 2013. X was firmly of the view that he did not wish to spend any time with his paternal grandparents “yet”, but envisaged that he would “in the future”, adding that he needed to feel he can trust them. Y said that he did not want to see them “until I feel comfortable ... when I get older and I am not scared any more”. Y’s fear appeared to be that his father might be at the home of the Paternal Grandparents. The Family Consultant observed that throughout the interview, X avoided making eye contact and spoke with his head down and Y consistently pulled at the skin on his arms and wriggled in his seat.
Ms K's Family Report is dated 5 May 2014, and involved interviews and observations with both parents, both children, and the Paternal Grandparents as well, with an interpreter. Ms K’s evidence is important because she was the only independent and expert witness. It is, therefore, appropriate to extract parts of her report.
In relation to the Mother, she observed at paragraph 11:
Ms Doherty (aged 35 years) presents herself as an involved, caring and protective parent. Over the course of three separate interventions her position, in relation to there being any contact between the children and their father and/or paternal grandparents, has become increasingly entrenched. She is adamant that it is in the interests of the children to have no contact with their father. Ms Doherty is unable to conceive of a time when she might believe that contact would be appropriate. She is adamant that she will support the children in their wish to have no contact with either their father and/or paternal grandparents. She, however, also said that, if in the future the children wished to re-establish their relationships with their father and/or paternal grandparents, she would be supportive of this. Ms Doherty does not believe any contact is likely until the children are moving into late adolescence or early adulthood. Ms Doherty continues to link the children’s views about contact with their father and/or paternal grandparents to the level of physical and verbal conflict they witnessed between their parents prior to and around the time of separation as well as he assertion that, when the children were spending time with their father and/or paternal grandparents they were exposed to the adult’s denigration of her and were also used to carrying messages, particularly X, from his father to his mother.
The Mother told the Family Consultant that she had told the children that if they want to spend time with their father and paternal grandparents, she would support this. She openly acknowledged, however, that she was “highly distrustful” of them. She explained that there is no communication between her and the Father or Paternal Grandparents, indeed, she did not even know where the Father lived.
In relation to the Father, Ms K observed at paragraph 17-18 of her report:
17. Mr Doherty (aged 37 years) has continually asserted over three separate interventions that the mother has used the children as a tool in their property settlement and that, immediately this settlement was finalised, she has prevented him and his parents from having contact with the children. He continues to deny the mother’s allegations about his being aggressive, violent and/or being verbally abusive of her or the children. He specifically denies involving the children in the adult disputes.
18. Despite asserting that he wishes to re-establish contact with the children, Mr Doherty wishes to ensure that the mother has no information about his life. When he was asked about whether or not or he was in another relationship (which, according to his mother, he is) he adamantly denied this, saying that the situation is complicated and he “just let” his mother believe that he is in another relationship. Mr Doherty does not think his for secrecy about his living arrangements or work would have any negative impact on the children, should he be able to re-establish his relationship with them.

In relation to the Paternal Grandparents, Ms K records at paragraphs 21-23 as follows:
21.    Ms V Doherty (aged 55 years) has, during the two interventions in which she and Mr Doherty snr (aged 59 years) have been involved, been the spokesperson for the couple.
22.    Ms V Doherty has moved from suggesting that she could spend time with the children when they spend time with their father to now being adamant that the children’s time with her and her husband should be separate from that which they might spend with their father.
23.    Ms V Doherty’s attitude towards Ms Doherty has become increasingly negative and hostile. Ms V Doherty expressed concern that X is being treated by a psychiatrist and suggests that this is evidence of X being manipulated by his mother. She further alleges that X is “scared” of his mother but admits that he is also “loyal” to her. While making only minimal comments about these issues, Mr Doherty, by his silence, seemed to be endorsing Ms V Doherty’s views.
The Family Consultant interviewed the boys. X is recorded to have said the following at paragraphs 25-26:
25. X said that he had “felt sick, upset and disappointed” about having to attend further interviews at the Court. He said that he continues to experience trouble sleeping.
26. While considering that he “might” contact his father and paternal grandparents “when older…[and] left school”, X said that, if he saw any of them in the street, he “would walk away” and not acknowledge them. He said that he has “lost all trust” in his father and paternal grandparents and “tries to forget what it is all about”. X denies having any positive memories of spending time with his father or paternal grandparents saying that all he remembers is his father “yelling, screaming and physically hurting Mum”.
In relation to Y, she records at paragraphs 30-31 and 33 as follows:
30.    Y talked more than X about his memories of the conflict between his parents and said that he recalled particular events more clearly then others. His memories included those of alleged physical violence between his parents with him believing that his mother was hurt on occasions. He also recalled that his father had “threatened to kill Mum…to slit her throat”.
31.    Comments made by Y indicate that he might be less determined than X about not spending time with his father or paternal grandparents. He said that, “even if I felt comfortable [about spending time with his father or paternal grandparents] I would not go [to see them] until I am 17 or 18”. Y, like X, commented about not feeling “safe” with his father or paternal grandparents, adding that he would feel “scared” if he saw his father or paternal grandparents in his local area. Y said that he thinks a lot about when he might feel able to spend time with his father.
…
33.    Y said that he wants the Judge to know that he does not want to see his father or paternal grandparents. He said he would go “when I feel okay…now is not the time. Please don’t force me”.
Ms K’s evaluation is extensive, and commences at paragraph 39 of the Report. She records that there had been no change in X’s views since the first Child Inclusive Conference in April 2013, and indeed, if anything, his views were more entrenched. She thought Y was perhaps slightly ambivalent about spending time with his father, “but not to the extent that would warrant any change to the current parenting arrangements” (paragraph 39).
At paragraph 40 of the Report, Ms K expressed concerns in relation to X, noting his involvement with both Dr P and Ms B, and expressing the view that perhaps X’s “significant cognitive, socio-emotional and behavioural problems” were more than might have been appreciated by the parents. Her concerns seemed to be about his special cognitive needs. She encouraged the parents to consider obtaining an appropriate referral in this regard. At paragraph 40, she states the following:
…It is possible that X’s range of emotional problems might represent something more than his on-going response to the past parental conflict. If this is the case then his on-going resistance to having any contact with his father and/or paternal grandparents might be more a reflection of an entrenched position which is supported by his mother, rather than a reflection of any real fears or concern that X has in relation to contact with members of his paternal family. If, however, X’s on- going refusal to spend time with his father and/or paternal grandparents is based solely on his exposure and response to the parental conflict then his position might be a more realistic reflection of his desire to shield himself from further conflict.
In relation to Y, she says at paragraph 41:
Y, despite saying that he spends a lot of time thinking about when he might spend time with his father, is assessed as not being overly pre-occupied by these thoughts. He seems to be progressing satisfactorily at school and is involved in a range of appropriate sports. He also has a positive attitude and asserts that he is normally “a happy” child. These are both protective factors for children when affected by conflict and/or difficult family dynamics.
In relation to the Mother, she observes at paragraph 42:
Ms Doherty has continually presented herself as a caring and protective parent. It could be hypothesised, however, that, as she has also had a diagnosis of anxiety and depression, she might have projected some of her feelings and concerns onto the children, particularly X. Should she continue to experience these feelings it will be important for her to continue having professional assistance so as to shield the children from her emotions. It might also be that, as a result of her own issues, Ms Doherty might have abrogated some of her parenting responsibilities, in relation to X’s emotional needs, onto Ms B, particularly around the time of separation. [See also dot point two under heading “Issues relating to the children” in the Child Inclusive Memorandum to Court of 17 April 2013.]. It is unusual for children to be involved in long term therapeutic relationships.
In relation to the Father, she observes at paragraph 44:
Despite indicating in April 2013 that he was considering not proceeding with his application to spend time with the children and expressing some concern about the action he believed that his parents were intending to take, Mr Doherty is no longer concerned about the possible stress the children might be again experiencing as a result of him proceeding with his application. Nor does he seem to have any insight into the consequences for the children of him not wanting their mother to know where he lives or have any information about his life. It is not appropriate for children to keep secrets and that is what Mr Doherty would require the children to do, should he have contact with them. When children and a parent spend time together it is natural and normal for them to inquire into each other’s lives and living arrangements, particularly when there has been no contact between them for some time. If a parent seeks that the other parent has no information about any aspect his/her life then this seems to contraindicate there being contact between the parent and the children.
In relation to the Paternal Grandmother, she notes at paragraph 45:
Ms V Doherty’s negative comments about the mother and her alleged manipulation of X does not indicate that she is a grandparent who has an in-depth understanding of the complex relationships children often have with parents and extended family members post-separation. It is interesting that Ms V Doherty is now adamant that she wants the time she and her husband spend with the children to be in addition to any time the children spend with their father. This might indicate that there are some tensions in the relationship between Mr Doherty and his parents. If this is the case, then this also contraindicates the children spending time with the paternal grandparents because of the risk that they might become involved in such tensions. The fact that Ms V Doherty and Mr Doherty snr both believe that Mr Doherty is in a defacto relationship, which he denies, further indicates some dysfunctionality in the relationship and would be further likely to involve the children in dysfunctional family dynamics.
Given the issues presented in the case, and the obvious non-communication between the parents, with the poor prognosis for the future, Ms K thought it would be best to order the Mother to have sole parental responsibility.
Ms K’s recommendations are set out at paragraphs 47-49 inclusive, as follows:
47.   It is recommended that Ms Doherty have sole parental responsibility for the children.
48.    It is recommended that there be no Orders for the children to spend time with their father or their paternal grandparents. Any decision in relation them spending time with their father or paternal grandparents in the future, ought to be explored within a therapeutic setting.
49.    If, as Ms B’s notes indicate, X is lagging behind developmentally for his chorological age, then X would benefit from having an assessment in relation to his cognitive, socio-emotional and behavioural development. It would be important for his school and parents to accept any recommendations arising from such assessment    and engage appropriate   professionals to assist X.
Ms K was extensively cross-examined by Ms Humphreys, Counsel for the Independent Children's Lawyer. A number of points emerged from this evidence:
·The issue of therapy as a means of seeking to repair the fractured relationships in this family was explored. Ms K was of the view that the most important thing was that therapy could not be imposed on unwilling participants, whether that be children or parents.
·The children’s views were an important consideration in this case.
·If the Court found against the Father as against his denials of the family violence allegations made against him, this would be a significant concern. The children’s memories of these events would thus be different from their father’s memory, which undermines the children’s sense of themselves. It is even more traumatic for the children that their father fails to understand the significance of his actions.
·Any parenting order in relation to the boys should not result in their being split. Thus, even if Y was more open to the possibility of resuming time with either his father or grandparents, that should not happen in the absence of his brother.
·Long-term supervision at a supervised contact centre was not a viable alternative in this case. The children were too old for this. A lengthy period of therapeutic reintroduction would be needed anyway. She thought there was no new material known to her which would cause her to reconsider her recommendation, or which would justify any further major changes in the lives of the children.
Mr Csapo, the solicitor for the Mother, also cross-examined the Family Consultant. Ms K explained that for the boys it was like being caught between two warring armies. They wished to avoid getting caught in the crossfire. This situation was complicated even further by possible tensions in the relationship between the Father and his parents. All was not lost in terms of the children’s relationships with their father and grandparents, but it would take time.
The Father was also given the opportunity to cross-examine Ms K. It was, of course, difficult for him as a lay person to do this. Regrettably, the manner in which he asked questions, as well as the questions themselves, merely demonstrate some of the issues that the evidence generally before the Court highlights. He was aggressive at times. He appeared impatient and unwilling to listen to the advice that the Family Consultant had to offer. He made comments about prejudice to men, was disparaging about Apprehended Violence Orders, and was blaming of the Mother.
The Paternal Grandmother was also given the opportunity to cross-examine Ms K. She was less aggressive than the Father, but much more emotional. She shared his lack of insight about the children’s experience of the issues before the Court. She was clearly grieving the loss of the relationship that she had with her grandchildren.
Nothing emerged from the cross-examination of Family Consultant Ms K that would in any way detract from her evaluation and recommendations. Indeed, the evidence in this case overall clearly supports those recommendations.

Evidence of the Mother

The Mother’s evidence is contained in her Affidavit of 15 June 2015. It is a detailed Affidavit, both as to matters of history and parenting, but also specifically as to family violence allegations. An incident that occurred on 23 July 2010, a week before final separation, is important. She deposes to this at paragraph 8 of her Affidavit:
On 23 July 2010 Mr Doherty said to me "I can't do this anymore. You can stay here until you find somewhere else to live." I said to Mr Doherty "That's ok; I will leave now if that is what you want." I gathered some clothes for the children and I and told the children we were going to go somewhere for the night. I said to the children "Say goodnight to dad", which they did. Mr Doherty became angry and started to yell "You're a fucken idiot making the children upset!" The children began to cry and went inside the house. The next minute Mr Doherty kicked in the internal access door from the garage and stormed in. He grabbed me by my shoulders and screamed in my face "You're not going anywhere with my fucken children!" He then threw me through the door and I landed on the garage floor. The children witnessed this. A couple of seconds later I got up and went inside the house to the rumpus room where the children went. Mr Doherty was sitting on the lounge there. X and Y were next to each other in the foetal position screaming and crying. I helped the boys up and they came into the kitchen with me. Mr Doherty ordered the children "Come to daddy." Y replied "No, you hurt mummy." The children and I then went and sat in the lounge room while Mr Doherty continued to yell from the rumpus room. Mr Doherty then walked into the lounge room and grabbed my mobile phone. He looked to see if I had contacted the police which I had not. Mr Doherty then said "Lucky you didn't call the fucking cops or it would have been on tonight." Mr Doherty stormed out and before I knew it he had got into the car and left. I contacted Mr Doherty's parents as I was concerned for his welfare.
If the Court were to accept the Mother’s evidence about the incident on 23 July 2010, as it indeed does, it is a serious event the gravity of which is accentuated by the presence of the children. The Court is left in no doubt whatsoever that this event would have been exceedingly traumatic for X, then 10, and Y, then 6. It was so traumatic that the Mother and children began to see Ms B in August 2010. That the Mother persisted in encouraging and facilitating the children’s time with their father, after this event, is commendable. Clearly, she was committed to fostering the children’s relationship with their father, at that time.
She deposes to a number of distressing communications between the children and their father.
At paragraph 13 she deposes:
Mr Doherty called X on 25 January 2012 and said to X, “Your mum is causing trouble again. She has called child support and told them I am working when I am not. She is a troublemaker.” X was quite upset and crying after this conversation and said, “Dad is really angry.”
The Mother deposes that she withdrew her application for child support because of this event. Quite apart from the totally inappropriate nature of the communication between the Father and X, to have allowed his anger to be so obviously expressed in front of his son, as it turns out in circumstances where he knew his son was already obtaining counselling from Ms B, is very hard to understand.
At paragraph 21, she deposes to an earlier incident on 22 April 2011 involving a telephone call between the children and their father. She could hear the father yelling at the children on the phone and observed both children crying. She heard the Father ask Y, “Why are you crying?” and heard Y say to his father, “Because you are yelling at me.”
The Mother deposes to then hearing X speak to his father, and to his father then yelling: “Don’t fucking lie to me, X. Your mum has made you scared of me. I’ll fucking break her neck. … I’m not going to call you anymore, it’s up to you, if you want to talk to me then you’ll have to call.” As it turns out, the Court accepts the Mother’s evidence about a telephone call that could only be described as intensely distressing for the children.
There are other examples of distressing communications between the Father and the children which do not need to be set out in these reasons. The issue in this case, and the terrible dilemma in which the children were placed as a result of the Father’s actions, are well captured in the two examples set out above. The Court accepts the Mother’s evidence that, as time went by, the children became increasingly reluctant to either spend time with, or communicate with their father by phone. This seems to have only made the Father even angrier, but he could not understand how this response was only making things worse, rather than better.
Perhaps unsurprisingly, the Paternal Grandparents became caught up in the children’s resistance to spending time and communicating with their father.
At paragraph 66, the Mother deposes to X very firmly declining to spend time with his grandmother, and to his grandmother not being accepting of what Y said. At paragraph 81, she deposes to the boys’ discomfort about the grandparents approaching them at school. The discomfort for the boys seems to evolve into a fear.
The Paternal Grandmother’s lack of insight into how her persistence was actually adding to the problem, rather than assisting it, is evidenced by the Mother’s paragraph 91. There she deposes to the incident on 31 March 2012 when, as a result of the Father having made threats to the children over the telephone to harm both her and her family, the police took out an Interim Apprehended Violence Order protecting both the Mother and the children. She deposes that:
The children spoke to the paternal grandmother that day and X said, “I need to have a break from seeing you.” The paternal grandmother questioned X saying, “Are your friends or family more important? Did your mother teach you to say to me?” The children were very hurt by these accusations.
In many ways, the comments attributed to the Paternal Grandmother sum up her approach to this case. As it turns out, the Court accepts that the Paternal Grandmother in particular trenchantly believes that the loss of her relationship with her grandsons is attributable exclusively to the Mother, and to no other factor, let alone anything her son may have done. The other observation is that she clearly values the family relationship with her grandson, but was insensitive about how her persistence might be interpreted by the children.
At paragraph 101, the Mother deposes to telling the children of the application having been filed in Court by the Paternal Grandmother. This, no doubt, upset the children. It was completely unnecessary for the Mother to have told the children about this. Indeed, the Court has more than some passing or lingering concern about the extent to which the Mother has inappropriately involved X and Y in the conflict between the Mother, the Father and the Paternal Grandparents. There is no shortage of lack of insight in this case and the Mother has certainly demonstrated some of it in this regard. It is no wonder that the boys’ resistance to spending time with their grandparents only increased.
The Mother was cross-examined by Counsel for the Independent Children’s Lawyer, by the Father, and the Paternal Grandmother. The following matters emerged as a result of her cross-examination:
·The Court finds that the Mother probably listened in to most of the telephone conversations that the Father had with the children. In another case, this might be interpreted as criticism of the Mother. In this case, because of the destructive nature of the Father’s telephone calls with the children, it was an appropriate protective response on her part. It is more likely than not that her evidence about the boys’ telephone conversations with their father, is correct.
·The mother’s assertion that she stopped the boys’ contact with the Paternal Grandparents at the request of the Father, is probably correct. It does not make her actions right, or in the children’s best interests. She knew the boys had a very close relationship with the Paternal Grandparents, who had been actively involved in most of their lives. She rebuffed or ignored almost every effort made by the Maternal Grandmother to resume the relationship with the children either in person or by telephone.
·The Mother could have done far more to preserve the boys’ relationship with their grandparents but, until the hearing, when the Paternal Grandmother and Father both gave appropriate assurances in their evidence, she would have had grounds to believe that the children would have been brought into contact with their father while spending time with the Paternal Grandparents. Whilst, with the benefit of hindsight, and having regard to the totality of the evidence, the Mother’s actions and inactions contributed to the boys’ loss of relationship with the paternal grandparents, if culpability needs to be apportioned in this regard, it still lies predominantly with the Father.
·The Mother has discussed aspects of the current litigation with the children, from time to time, and as recently as a few months ago. This was both unnecessary, and inappropriate, particularly in circumstances where she was well aware of how the proceedings were contributing to the anxiety that X experiences. The Court acknowledges, given the children’s ages, it would have been difficult for her to avoid and/or manage discussions about the Court proceedings initiated by the children. However, adults are expected to manage those difficult situations, in the interest of their children. Whilst the Father, therefore, by his own actions and inactions caused the breakdown of his relationship with the boys, the Mother could have done far more to mitigate this, but failed to do so. By involving the children in the proceedings, she made it far less likely that their relationship with the Father could be repaired.

To the extent the matters set above would be regarded as criticisms of the Mother, it should be understood that the Court accepts her evidence about the family violence and abuse perpetrated by the Father towards her, and to a lesser extent the children, both before and after separation. This made her role as the primary parent for these children even harder than it would have been as previously observed, that she persisted for so long in the post-separation period to encourage the children’s relationship with their father is commendable.
The Mother showed the greatest insight about developmental considerations relating to the boys, something which neither the Father nor the Paternal Grandmother appeared to consider. The Mother gave evidence that X was applying for casual jobs which in itself signals his growing autonomy and individuation and also partly explains a reluctance to spend time with his father or grandparents, except on his terms. Y’s reluctance would be linked to his brother’s reluctance. Neither the Father nor the Paternal Grandmother appeared capable of understanding that some of the boys’ reluctances are consistent with their developmental stage, and not necessarily associated with what they perceive to be the sole cause – the Mother’s undermining of their relationships.
The Mother’s evidence, confirms the Father’s evidence, and that is that both before and after separation they struggled to communicate, particularly in relation to matters of parenting.
It is important to note that there was no direct challenge in cross-examination about any of the specific factual matters asserted by the Mother, including the family violence and abuse allegations. Where the Court has formed a less than favourable impression of the Mother’s evidence, it is not because it does not accept what the Mother asserts, but rather that when the evidence is viewed in its totality, a different interpretation is adopted about the Mother’s evidence.

The Father’s evidence

The only Affidavit filed in the Father’s case was sworn 20 December 2012, as the Father did not comply with directions about the filing of updated material. When the Court asked him about this before the hearing commenced, he said that he had not filed further affidavit evidence, “as nothing has changed.”
The Affidavit the Father filed contains historical information of little assistance to the Court in the present context. However, at paragraph 15, there are two important matters. Firstly, he asserts that, “[i]n the last few years of our relationship, Ms Doherty and I argued quite a lot, however we always made a conscious effort not to argue in front of the boys.” From this evidence, the Court infers that the Father was not asserting that he and the Mother never argued in front of the boys. In fact, the evidence is quite to the contrary. He also asserts that there was, “never any kind of physical violence between Susannah and I.” As will be seen below, he in fact admitted in cross-examination that there was at least one incident of physical violence.
At paragraph 8 he denies the allegations the Mother made, “about me making threats about either he or the boys.” Indeed, he asserts that those allegations are, “entirely false and fabricated.” The evidence, including admissions made in his own cross-examination, indicate to the contrary. At paragraph 8, he went on to explain what was, in effect his case theory, and that is his belief, “that Ms Doherty has been filling the boys’ heads, with these sorts of ideas so that they think I’m a bad person and do not want to spend time with me.”
At paragraph 9 he makes the important concession that an AVO was made against him on 31 March 2012, covering both the Mother and the children. He asserted that that was the reason why he had not had contact with the children, in effect, until the expiration of the AVO. He was strenuously challenged about this proposition in cross-examination, but ultimately the Court accepts his evidence in this regard. Whilst it is plainly incorrect, he certainly believed that the AVO precluded any contact with the children, and genuinely believed that if he had attempted to make contact or establish communication for the purpose of resuming time with the children, it would have been a breach of the order. One can only imagine how this case might have proceeded in a different fashion if he had, in fact, sought legal advice at a much earlier stage.
It is clear from the Father’s Affidavit (e.g. paragraph 13) that he is deeply sceptical of Ms B’s reports, the evidence she gives, and the therapeutic assistance she is providing to the boys, especially X. He is convinced that any symptoms that X appears to be displaying, “primarily flow from the back injury he suffered some years ago, and the various impacts it had on him in the years that followed.” The Father’s views are simplistic, and clearly minimises the significance of his own behaviour and actions, both before and after separation, especially in terms of exposing the children to abusive communications, and intensely denigrating comments about their mother. Nonetheless, there may well be a kernel of truth in the Father’s assertion to the extent that he is suggesting that, at least to some extent, X’s current anxieties are in some way related to his accident in November 2006 when a television fell on him and he suffered a serious back injury as a result.
In the Father’s Affidavit there are clear admissions that he too involved the children in completely inappropriate conversations about adult matters, primarily related to the breakdown of his relationship with the Mother.
The Father was extensively cross-examined by Counsel for the Independent Children’s Lawyer. He was taken to the events of 23 July 2010, which ultimately precipitated the separation. He agreed that there was a heated argument. He agreed that he said, “I can’t do this anymore.” He agreed that he said to her, “You’re a fucking idiot making the children upset.” He agrees that the children were both awake and in the vicinity when this incident was happening. Whilst he denies grabbing the Mother by the shoulders, he agreed that there was an argument, in a narrow hallway and that he did kick in the internal door in order to go out. He agreed the children were crying and probably scared.
The Court prefers the Mother’s evidence about the events of 23 July 2010. The Father made enough admissions about the matters asserted by the Mother, to cast doubt on his denials. The Mother gave her evidence about the incident much more confidently than the Father did. There is also some limited support for the Mother’s version of the events in Ms B’s notes of what the boys told her. It is highly likely that the children were scared of their father’s aggression and anger as a result of this incident.
The Father was cross-examined about paragraph 13 of the Mother’s Affidavit in which she deposes to the conversation between the Father and X in January 2012 about child support. He agreed that he said to X, “Your mum is causing trouble again.” He agreed that X was upset. He contended that he did not raise the subject of child support with the boys, they did, but nonetheless he eventually opened his laptop to show the boys the bank account from which payments were made. When challenged about the appropriateness of this he said, “I didn’t want to get into it, but eventually showed them.” He was asked to explain why, in his opinion, X became upset. He initially explained that X had always been an emotional boy and that the accident he had suffered had changed him. He believed that X probably felt that his mother and father were about to argue again. He accepted the contention, however, that X probably felt that some of the arguments were about him, and explained that that probably did not make X feel too good.
The Father was cross-examined about paragraphs 16 and 17 of the Mother’s Affidavit where the Mother alleges that she heard the Father say to X, “You make sure you fucking carry your phone on you all the time” and, “Your mother always leaves you with your grandparents, why don’t you come and live with me?” The Father agreed in cross-examination he had probably said something to that effect.
The Father was cross-examined about paragraph 21 of the Mother’s Affidavit, about phone calls he made to the children on 22 April 2011. The Father agreed he probably did speak to the boys on this day. It was following a text message from the Mother. He agreed he said, “Where have you been all week?” When it was put to him that the Mother had heard him yelling at the children, and that Y became upset and was crying, the Father explained that he did not recall. He also did not recall saying, “Don’t fucking lie to me, X.” The Court does not accept the Father’s evidence in this regard. The similarity between the incident of 22 April 2011 and the earlier phone calls is noticeable. The Mother’s version of these events is far more likely to be correct than not. For example, the Father agreed that he subsequently apologised to X for yelling at him.
The Mother deposes to an incident on 11 September 2011 at paragraph 34 of her Affidavit in which the children had received a “mohawk,” style haircut whilst in their father’s care on that weekend. He agreed that he probably did do that. He agreed he probably did not refer to the children’s mother in positive terms. What is particularly significant about this incident is X’s response to it. The Mother deposes that X told her, “I cried afterwards, but I made sure he didn’t see in case he got angry.” There was no challenge to this evidence. It is an interesting and disturbing insight into how X was trying to manage the obviously strong emotional reaction to what his father was doing and saying.
The Father was cross-examined about paragraph 91 of the Mother’s Affidavit, the incident on 31 March 2012 which, it is common ground, led to the granting of the AVO against the Father, protecting both the Mother and the children. The Mother deposes that the Father “made threats to the children over the telephone to harm me and my family.” The Father made a number of admissions about this event. He agreed he probably said to X, “You’re fucking lying.” He agreed that he did say, “Get a gun and shoot me.” He agreed that he was upset. He was convinced that X was lying. He accepted that it was likely that X was probably shaking and crying after the Father said the things that he did. The Father accepted that, by the time X went to the Child Inclusive Conference a month later, he was probably afraid of him. Indeed, he accepted that at the Child Inclusive Conference, he was considering discontinuing the case because of the stress that X was experiencing. He acknowledged that the children needed to be protected from a feeling that they are in a stressful situation as a result of their parents’ Court case. He explained, however, that he ultimately decided that the children needed both parents. When challenged about his earlier acknowledgement that children should be free from stress, he explained that stress, “is inevitable anyway, and she (the mother) is feeding them information.”
The Father was cross-examined about Ms B’s involvement with the family. He accepted that it was likely that managing X’s anxiety was made more difficult by the ongoing litigation, but then said words to the effect, “I pulled myself out of the problem, and the household. The problem is still there. I’m not.” The inference from what the Father said was clearly that neither he, nor the litigation, was responsible for X’s ongoing anxiety.
The Father acknowledged that it would not be easy resuming his relationship with the boys. It could take a long time. It might involve supervision. It might be stressful for them but, he asked, “How stressful will they be if there is no time with their father?” He acknowledged that the boys’ time with him would be a pressure on them, but the Mother should encourage them, he believed, and give them “just a little push for their own benefit.”
The Father strenuously denied ever telling the boys that they should not tell the grandparents what was happening in their lives. He also felt that his mother and father would abide with any request by him not to contact the children. He explained that he would abide by any order not to have contact or communicate with the boys, should an order be made for them to spend time with the Paternal Grandparents. He said, “I won’t ignore orders.” He then made this interesting observation, “It would also make the children feel unsafe.” When he was picked up on this comment, he maintained that there was no reason for them to feel unsafe.
There was cross-examination about maintaining some communication with the boys, even if no contact were ordered. He was not confident about email communication. He thought the Mother would get involved. He felt that “face-to-face is what I want, even if it is in a therapeutic environment.” He was sceptical about even the idea of sending cards and presents because there had never been any response to that over previous years.
The Father explained that he was open to the Mother supervising his time with the boys, indeed open to re-establishing a friendship with her. However, he does not accept that she is fearful of him because there were “mere allegations and only one AVO.”
The Father’s evidence about his relationship with a partner (possibly a former partner but this is not clear), Ms M was evasive. All that can be said with any reasonable certainty is that Ms M suffered from mental health issues that probably resulted in her being aggressive and violent at times, sometimes in the presence of the children whilst they were spending time with the Father. The Father was an unreliable historian in this regard. Documents produced by NSW Police, and Ms B’s notes of what the children told her, are better sources of information about what actually happened.
Overall, even the admissions that the Father made in cross-examination establish a reasonable basis for the Mother’s fear of him and why the children would likewise fear him, particularly X. There was clearly an incident of family violence to which the children were exposed. The Father’s subsequent interactions and communications with the Mother and the children were often abusive. He did not appear able to contain his emotions, particularly his frustration and anger.
Whilst his anger appears to have subsided by the time of the hearing, he still presented as a very frustrated and indeed, bitter man. He is understandably emotionally hurt by the breakdown of the relationship with his boys, but appears to have very little insight into the role that he himself played in this very situation. He seemed to externalise responsibility entirely on to the Mother. He appeared, at times, to demonstrate the odd glimpse of insight into the exquisitely difficult position that he has placed his own parents in, so far as their relationship with the boys. He did not appear to fully appreciate the challenges inherent in attempting to resume his relationship with the boys. Whilst on the one hand stating that he was open to therapeutic intervention, it is clear that he was deeply sceptical about Ms B’s intervention and to a lesser extent Ms K’s involvement as well.

The evidence of the Paternal Grandmother

Whilst both Paternal Grandparents are parties to the proceedings, only the Paternal Grandmother gave evidence. Her evidence is contained in her Affidavit of 19 March 2015. She deposes to the strong, loving and affectionate bond with her two grandsons since birth and her very active involvement in their lives. This continued after separation of the boys’ parents. She last saw the boys when she attended (omitted) Primary School in about September 2012. She deposes to X being scared “that his mother would call the police when I attended the school.”
At paragraph 7, the Paternal Grandmother deposes that the Mother “took out an AVO against my son Mr Doherty in about March 2012, and at that time my son told me to stay away from the children.” She says that from September 2012 up until 2014, she attempted to ring the Mother to talk about spending some time with the boys, but her calls were never returned.
At paragraph 10 of her Affidavit, it is apparent that the Paternal Grandmother was aware of the possibility that the Father would not be allowed to see the children, and she deposes to the effect that she would not allow her son to come into the house if the children were to spend time with her. She explains, “I would do so in order that the children would feel comfortable and safe.”
The Paternal Grandmother was cross-examined. She was often an emotional witness. Clearly, she is deeply hurt by the loss of her relationship with her grandsons whom she loves very much. The following points emerge from her cross-examination:
·Shortly after the AVO was granted against her son, indeed possibly beforehand, her son (the father) “told me to stay out of it”. X had, in fact, told her that he “needed a break” from his father. The Paternal Grandmother admitted saying to him, “What has your dad done to you?”, and that X then started to cry. When her son told her to “stay out of it” she understood that that was to “not make more trouble”. She believed his instruction to be that she not spend time with the children, but not necessarily not to communicate with them. The Paternal Grandmother does not accept that when X said he needed a break, that he was referring to his grandparents.
·She intervened in the proceedings as a result of meeting X after the AVO was granted, seeing that he was upset and missing his grandparents and feeling that X was put in a position where he felt he had to protect her from his mother.
·The Paternal Grandmother could see no reason why the Court would stop the Father from having a relationship with his sons. Even if her son made threats to the Mother, those threats were never carried out, and the Father clearly loves his children. She does not accept that the boys are afraid of their father. Indeed, she said in cross-examination, “They are more scared of their mother.”
·She strenuously denied denigrating the Mother in front of the boys, whilst they spend time with her. When taken to the Mother’s evidence at paragraph 106 of her Affidavit, to the effect that X’s anxiety was triggered by any mention of spending time with his father or grandparents, the Paternal Grandmother explained that, “I would not believe it anyway. She could say whatever she wants to the children, and they would listen to her.”
·When asked to comment on X’s teacher’s observation of him contained in her letter of 13 September 2013, being the Annexure A to the Mother’s Affidavit 15 June 2015, i.e. that the impending Court case made him anxious, the Paternal Grandmother replied, “Even before separation, he would get emotional and upset and crying. He’s been like that from when he was a baby.” She did ultimately accept, however, that the Court case would make X worry. She did not know why, however. When it was put to her that X is reported to have said to his teacher, “My head is too full. I can’t stop thinking about the next court case,” the Paternal Grandmother could not understand why he would say that.
·The Paternal Grandmother seemed open to the possibility that if X genuinely did not want to spend time with her, she would keep the door open for the future, but raised the possibility of Y spending time with them.
·The various parts of Ms B’s evidence was put to the Paternal Grandmother, but her response was dismissive. She explained that she did not “believe in counselling ... it is to bleach your brain, so as you do not think or worry.”
·In cross-examination she seemed to appreciate the difficulty that the boys might experience given the conflict between the parents. She said that for them it might be “like salami in the sandwich”, but there is no doubt from her subsequent comments that she attributed the blame primarily to the Mother and not to her son. Thus, if the boys were upset, she acknowledged that it could affect other parts of their life “but what sort of mother would allow that?” Indeed, she later said, “The mother needs to wake up to herself about what she’s doing.”
·The Paternal Grandmother agreed that she had participated in the Legal Aid Conference that was held in this matter in August 2014. It was agreed that the Independent Children’s Lawyer would facilitate a meeting between the grandparents and Ms B. She agreed that the Independent Children’s Lawyer corresponded with her about this, and even prepared draft Consent Orders. The Paternal Grandmother maintained, however, that nothing happened, but she agreed she took no steps to follow it up. The impression formed is that the grandmother was passive about this opportunity to engage with Ms B, which is perhaps unsurprising given her articulated views in relation to counselling. Indeed, she confirmed that “psychos go to counselling”.
·The Paternal Grandmother is clearly critical in her affidavit about the Mother not facilitating the children attending the Paternal Grandmother’s father-in-law’s funeral. She agreed in cross-examination, however, that she did not tell the Mother about this because she “was so busy”. Indeed, the Paternal Grandmother added: “the solicitor is responsible for this, not me.” Regrettably, the Paternal Grandmother demonstrated the same tendency to externalise responsibility for what did not happen, (in this case, the Mother being told about the boys’ great-grandfather’s funeral), onto someone else whilst nonetheless being critical of the Mother in this regard.

One can only feel great empathy for the Paternal Grandmother’s position in this case. She and her husband have obviously lost one of their most treasured relationships – with their grandsons X and Y. In some respects, the evidence indicates that they were caught up in the crossfire of the parental conflict. In other respects, however, the Paternal Grandmother failed to demonstrate the level of attunement to the children’s needs that would be absolutely essential in order to facilitate the ongoing relationship between the boys and the grandparents in circumstances where the Father could not be involved.

The best interests of the children?

The legislation in force at the time that these proceedings were commenced requires the Court to consider the benefit to the boys of having a meaningful relationship with both of their parents. In this regard the legislation refers specifically to parents, and not grandparents. The evidence indicates that, at present, the boys do not have a meaningful relationship with their father.
Looking to the future, however, based on the evidence, the prognosis is not a good one. Even looking at a best-case scenario for the Father, which would surely involve some sort of therapeutic intervention and a gradual reintroduction of him into the children’s lives, the fundamental prerequisite as identified by both Ms K and Ms B is a willingness and desire of both boys to participate in this process. There is simply no evidence of that.
Indeed, the evidence is quite to the contrary. The boys remain fearful of their father. The Father has shown such lack of insight about how his own actions have contributed to the breakdown in the relationship with the boys that even if there was therapeutic intervention, there is no reason to be hopeful of a satisfactory outcome. In a theoretical sense only, there is a benefit to the children of having a meaningful relationship with their father. In real terms, based on the evidence available to the Court, that aspiration cannot be realised.

Protecting the children from harm

Despite the Father’s assertions, there is no question that the evidence establishes to the Court’s satisfaction that the children have been exposed to family violence, including physical family violence, and also to abuse in the sense of their father’s behaviour directed to both the mother, and themselves, either in person or by telephone. That there has been at least a psychological harm to the children is patently obvious from the evidence of Dr P, Ms B, and the Family Consultant, Ms K.
Whilst the Father in his evidence made limited admissions about his behaviour, and even its potential impact on the children, he certainly did not communicate to the Court a frank acknowledgement of what he has done, and its impact on the children. As mentioned in the discussion of the evidence above, he both minimised his actions, at times, and externalised responsibility away from him.
There is no evidence to suggest that he has addressed, in any professional sense, the obvious anger issues that were present during the later years of the relationship, on separation, and then for a period after separation until all contact was stopped. The Father did not signal to the Court any appreciation that he needed assistance in dealing with an issue such as anger management but did signal a clear scepticism and mistrust for any form of therapeutic intervention.
In the circumstances, there is the need to protect the children from both physical and psychological harm from being subject to their father’s abuse, and family violence.
By contrast, it could not be said that the same risk emanates from the paternal grandparents. In particular, the Paternal Grandmother’s involvement with the boys after separation, including visits to their school which were clearly inappropriate, and caused the children some distress, but the Court is unsure that it gets to the level of the psychological harm that is referred to in section 60CC(2)(b).

The views of the children

The views of the children are quite clear and plain. X does not want to spend time with his father or paternal grandparents. Y has some slight ambivalence about this. Both of the boys are mature enough to have significant weight placed on their views. Indeed, the Court believes there would be a real issue if the children’s views were not given substantial weight, not just in a psychological sense, but in the very practical sense of whether they would abide with the Court’s Orders anyway.
It must be remembered that both children have had substantial therapeutic assistance. X suffers from post-traumatic stress disorder and anxiety. Y suffers from anxiety. Even the Father and the Paternal Grandmother conceded in a minimalistic fashion that the resumption of time might be difficult for the boys.
The Court has carefully considered the contention made by both the father and paternal grandmother that the mother has actively involved herself in turning the children against them. The Family Consultant certainly concluded that there was no evidence to suggest she had alienated these children from their father, but substantial evidence to suggest the children had become realistically estranged as a result of their father’s actions. It may well be more complicated than that.
The Court is prepared to find that there were times when the Mother could have done far more to facilitate her children’s relationship with the Father after the point at which she ceased all contact between them. To be fair, however, up until the time that she ceased contact, she was, based on this Court’s experience, extraordinarily persistent given the Father’s behaviour. If the Mother did, in fact, contribute to the boys’ loss of relationship with both their father, and grandmother, her culpability would be assessed as being far, far less than that of the Father.
In short, the Court accepts the children’s views. Even allowing for some ambivalence on Y’s part, the complexities associated with facilitating a resumption of their relationship with the Father are almost overwhelming in this case. The children’s views need to be heard, and given substantial weight to.

The nature of the children’s relationships

Little more can be said about the children’s relationship with their father. The Independent Children’s Lawyer is probably correct in asserting that their willingness to keep the possibility open of a relationship with their father is manifested by being willing to receive gifts and cards from him.
The children’s relationship with their mother is unquestionably good. Hers is the strongest relationship they have. All the evidence suggests she was the primary caregiver to the children before separation, and certainly afterwards.
The evidence suggests the children had a very strong, close and loving relationship with the paternal grandparents. That is no longer the relationship they have with them today. This is tragic in many ways. It is probably the case that there was very little that either of the paternal grandparents did that, of itself, would justify the loss of relationship. The reality is, as previously foreshadowed, that they became caught in the metaphorical crossfire between the parents, and they became collateral damage, in a slightly different way to the children.
The Court’s impression is that if any of the relationships with the paternal family are to be restored sooner, rather than later, it is the boys’ relationship with their grandparents. Establishing a framework for communication to continue by way of gifts and cards will keep that door open.

Willingness and ability to facilitate and encourage relationships

As mentioned earlier in these reasons, both the Father and the Paternal Grandmother trenchantly believe that the boys’ mother have failed to facilitate and encourage the boys’ relationship with their father. However, as previously mentioned in these reasons, whilst the Court is of the view that the Mother probably could have done more, in reality she probably did far more, and persisted longer, than might have been warranted in circumstances where the Father’s behaviour, including violence and abuse, was the far more effective agent in estranging him from the children.
The Father probably would encourage the children’s relationship with their mother, should they spend time with him.

The likely effect of changes in the children’s lives

The children have been effectively separated from their father and paternal grandparents for over three years, since March 2012. To reintroduce the Father and/or the paternal grandparents in their lives would require, in this Court’s opinion, and based on the evidence of Ms B and Ms K, substantial therapeutic involvement and time, as well as probably supervision. All of this would be intensely stressful for boys who not only have such strong views, but who are both anxious, particularly X.
The likely effect of making Orders consistent with that proposed by either the Father or the grandparents would only be to increase the children’s anxiety. There is more than ample evidence before the Court to suggest that the litigation itself has added to the children’s anxiety. A close examination of Ms B’s notes tracks how X’s level of anxiety has ebbed and flowed depending on what is happening in the case.
Whilst the Court recognises that there would be obvious benefit to the children in having the paternal family back in their lives, this is a change the likely effect of which would be to cause an unacceptable level of anxiety for them, and is thus not in their best interests.

Issues of practical difficulty and expense

There are no such issues in this case. The grandparents live locally. The father lives in a nearby town, which is not so far away as to make contact-related travel impossible.

Issues of capacity to provide the needs of the children

No issue is raised in this case about the Mother’s capacity to meet the needs of the children.
By contrast, the discussion of the evidence set out above raises quite serious issues about the Father’s capacity to meet the children’s emotional needs. He clearly lacked insight about the impact of his own actions on the children, particularly X. He is probably quite capable of providing for the children’s physical needs.

Maturity, sex, lifestyle and background

All parties and the children are of Macedonian background and there is no reason to believe that they will not continue to be exposed to the Macedonian culture in the care of either party or grandparents.

Parental attitudes

There was a real sense of entitlement and self-focus, rather than child-focus, discernible from the Father’s evidence. It was difficult for both him, and the Paternal Grandmother, to consider what it must be like for the children now, and how they might have experienced the events set out in these reasons. The Father genuinely struggled to understand what the problem was, and constantly sought to externalise responsibility to the Mother. As foreshadowed earlier in these reasons, the Mother probably could have done more to facilitate the boys’ relationship with their father and grandparents in recent years, but by then the damage to the relationship was already in place.

Family violence

There has been family violence. Even if the Father’s own limited admissions represented the true extent of this, it would be of concern. He is not, however, a reliable historian about this issue. The Mother’s account is far more plausible and consistent with corroborative sources. The Father remains in denial about the potential impact on the children of his actions. The Paternal Grandmother also lacks insight in this regard.

Order least likely to lead to further litigation

The Mother’s proposal is in fact the one least likely to lead to further litigation. Given the boys’ resistance to time with their father and grandparents, this Court believes that any order for time would be easy to resist for the boys, and difficult to enforce by the Mother. It is time for this litigation to come to an end.

Orders in the best interests of the children?

Not without a profound sense of sadness, the Court finds that the Orders sought by both the Mother and the Independent Children’s Lawyer are in their best interests for the reasons that should be apparent from above. The overwhelming weight of the evidence suggests the disadvantages of no, or very limited, contact and communication between the boys and their father and grandmother are less than the risks to them if more contact and communication takes place. It must follow that sole parental responsibility to the Mother is in the best interests of the children. The injunctions sought are proportionate and appropriate. The limited communication afforded by the Orders is the most that can be achieved for the time being.

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate:

Date: 25 September 2015

Schedule One

Minute of Order proposed by the Independent Children’s Lawyer

The children the subject of this Order are:
(a) X born (omitted) 2000; and
(b) Y born (omitted) 2004
The parents the subject of this Order are:-
(a) Ms Doherty
(b) Mr Doherty
The paternal grandmother the subject of this Order:
(a) Ms V Doherty
That the Applicant Mother is to have sole parental responsibility for the children: in relation to the care, welfare, and development of a long term nature involving the children to include but not be limited to issues about:
4.1The education of the children both current and future;
4.2The children’s religious and cultural upbringing;
4.3The children’s health;
4.4The children’s names;
4.5 Any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.
That the children are to live with the Applicant Mother.
That there is no order in respect of the time that the children spend with the Respondent Father.
That there is no order in respect of the time that the children spend with the Respondent Paternal Grandmother.
That the Respondent Father, other than with the written consent of the Mother, is otherwise restrained pursuant to Section 68B of the Family Law Act 1975 from attempting to contact the Applicant Mother by any means, including through a third party; approaching, or coming within 100 metres of any place where the Applicant Mother might from time to time reside.
Pursuant to Section 68C of the Family Law Act 19675 if a Police Officer believes on reasonable grounds that the Respondent Father against whom the injunction is directed, has breached the injunction or has otherwise caused or threatened to cause bodily harm to the Applicant Mother, or is harassing, molesting or stalking the Applicant Mother that Officer may arrest the Respondent Father without a warrant.
That the Applicant Mother shall keep the Respondent Father informed as soon as it is reasonably practical of:
10.1Any serious medical problems or serious illnesses suffered by the children.
10.2Any permanent medications that have been prescribed for the children;
That the Applicant Mother provide the necessary authorities to the Principal of each school attended by the children to ensure that the school forward to the Respondent Father copies of the children’s school reports as they fall due along with copies of all school circulars, newsletters. A copy of this Order is sufficient for compliance.
That the Applicant Mother do such further and other acts and sign such documents so as to permit the Respondent Father to obtain school photos of the children and/or completion of the requisite order form for such photographs.
That the Applicant Mother is to provide within 7 days of the date of Orders the Respondent Father with an email address for the Respondent Father to communicate with the children.
That the children are able to communicate and/or reply to the Father’s emails in accordance with their wishes noting the Father’s email address as (omitted).
That the Paternal Grandmother is permitted to send gifts, cards and letters for the children to the Applicant Mother’s home address where the children reside.

[2015] FCCA 2220

25 September 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies

Standing