DUNST & DUNST - [2014] FamCA 964

FAMILY COURT OF AUSTRALIA

DUNST & DUNST

[2014] FamCA 964

FAMILY LAW – CHILDREN – Best interests – Where the mother and the five subject children are in hiding – Where the father poses an unacceptable risk of physical and psychological harm to the children by his exposure or subjection of them to family violence – Where the father poses the same risk to the mother and there is a current apprehended violence order in place protecting her – Where there is no safe alternative but to eliminate all personal contact between the father and the children and only preserve a line of communication between them – Children to live with the mother – Whether any of the children spend time with the father shall be determined by the mother as an incident of her sole parental responsibility for the children – Where the father is able to occasionally send letters, cards, and/or gifts to the children.

FAMILY LAW – CHILDREN – Parental responsibility – The presumption of equal shared parental responsibility does not apply because of the father’s commission of family violence – Where there is no feasible option but to allocate parental responsibility exclusively to the mother.

FAMILY LAW – PRACTICE & PROCEDURE – Where there were two outstanding interlocutory applications to be determined – Where the father sought the preparation of a supplementary single expert report following his observation in the company of the children – Where the father also sought to adduce adversarial expert evidence from a psychiatrist he consulted – Both applications dismissed.

Australian Passports Act 2005 (Cth) s 11
Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 36, 38, 42
Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B, 68P, 102PE, 102PF
Family Law Rules 2004 (Cth) rules 15.41, 15.49, 15.52, 15.64B, 16.65

Chapman v Palmer (1978) 4 Fam LR
Flanagan v Handcock (2001) FLC 93-074
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
M v B [2001] FamCA 894
M v M (1988) 166 CLR 69
Marriage of Mahony & McKenzie (1993) 16 Fam LR 803
Marriage of Sedgley (1995) 19 Fam LR 363
MRR v GR (2010) 240 CLR 461
Pavli v Beffa (2013) 48 Fam LR 677
Re Andrew (1996) 20 Fam LR 538
Re W and W: Abuse Allegations; Expert Evidence (2001) 28 Fam LR 45
U v U (2002) 211 CLR 238

APPLICANT:

Ms Dunst

RESPONDENT:

Mr Dunst

FILE NUMBER:

NCC

1405

2012

DATE DELIVERED:

11 November 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

28, 29 & 30 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

Hannaway Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Gilbert

SOLICITOR FOR THE RESPONDENT:

KD Holmes Solicitors

Orders

All former parenting orders relating to the following children (“the children”) are discharged:
(a)       Y Dunst, born … 1997;
(b)       A Dunst, born … 1999;
(c)       L Dunst, born … 2004;
(d)       N Dunst, born … 2006; and
(e)       B Dunst, born … 2008.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
Pursuant to ss 102PE and 102PF(1)(c) of the Family Law Act, this suppression order prohibits the publication or other disclosure of any information which tends to reveal or identify the locality of the residence of the mother and the children until the youngest child attains her majority.
Pursuant to s 68B of the Family Law Act, the father is restrained from procuring any information, or copies of any document, from the Court’s manual or electronic file (NCC 1405/2012) that tends to disclose the locality of the residence of the mother and the children.
Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 500 metres of:
(a)The mother’s residence;
(b)The post office box or postal address obtained by the mother pursuant to Order 8(a) hereof; and
(c)Any school attended by any of the children.
Each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:
(a)By the father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays and Christmas Day; and
(b)By the mother sending to the father:
(i)Written acknowledgement of receipt of the father’s written communication; and
(ii)Any letters, cards, photographs, or other written communication that the children, or any of them, wish to be conveyed to the father.
For the purposes of implementation of Order 7 hereof:
(a)The mother shall, within 14 days hereof, obtain and thereafter retain a post office box or postal address to which the father may send written communication;
(b)The mother shall, within a further 7 days, notify the father of the post office box or postal address by sending written notification to the solicitors who acted for the father at the final hearing; and
(c)The father shall thereafter keep the mother informed in writing of the address to which mail directed by her to him may be sent.
By reason of a potential inconsistency between Orders 7 and 8 hereof and an existing Apprehended Violence Order, pursuant to s 68P(3) of the Family Law Act, the Registrar of the registry of the Family Court of Australia at Newcastle shall send a sealed copy of these Orders to:
(a)The Registrar of the Local Court of NSW …;
(b)The Commissioner of the NSW Police Service; and
(c)The Secretary of the NSW Department of Family and Community Services.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
Any and all outstanding applications are dismissed.

Notations

(A)No orders are made prescribing or precluding the children’s interaction with the father. Whether any of the children spend time or communicate with the father, and the circumstances under which they may do so, shall be determined by the mother as an incident of her sole parental responsibility for the children.
(B)If the Apprehended Violence Order made against the father for the protection of the mother by the Local Court of NSW … on 9 May 2014 for a period of two years was intended to also protect the parties’ children (as persons who have a domestic relationship with the mother), then Orders 7 and 8 hereof are inconsistent with that Order and, to the extent of any inconsistency, Division 11 of Part VII of the Family Law Act applies and these parenting orders prevail.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1405 of 2012

Ms Dunst

Applicant

And

Mr Dunst

Respondent

REASONS FOR JUDGMENT

Introduction

Five children of the applicant mother and respondent father were the subject of these proceedings. The parties had remarkably divergent views about the orders needed to promote the children’s best interests.
The mother considered the children needed the father to be eliminated from their lives. She fears the father threatens their lives and so she and the children have lived in hiding from him since the parties’ volatile separation in March 2012.
The father refuted the validity of the mother’s fear, which he contended was contrived. He abandoned his earlier position that the children should live with him and instead recently acknowledged the children should remain living with the mother. Although he was aware the two eldest children were estranged from him, he saw no impediment to the three youngest children regularly spending extensive periods of time with him.
The evidence satisfactorily established that the father does pose risks of harm to the children, which he either deceptively denied or of which he was bereft of insight. There was no safe alternative but to eliminate all personal contact between the father and the children and only preserve a line of communication between them.

Background

The parties met in 1994 and married in 1996.
There is some dispute about whether they effectively separated in 2006, but it is common ground they remained living with the children at the same remote rural property until March 2012.
The parties’ five children were born in 1997, 1999, 2004, 2006, and 2008. The eldest is 17 years of age and the youngest is six years of age.
The parties ceased to occupy the same premises in March 2012 following a violent physical confrontation between them in the presence of the children, which ultimately led to the father’s conviction for various assault and firearm offences and the imposition upon him of an apprehended violence order for the protection of the mother and children. The father was imprisoned for about 12 months thereafter, which incarceration encompassed his initial remand without bail and the sentences imposed for his convictions. He was released in or about March 2013, but was imprisoned again for another breach of the apprehended violence order for several months between December 2013 and March 2014.
The mother and children moved away from the matrimonial property in March 2012 and have since lived in hiding from the father. The children have had no form of interaction with him since then.
These proceedings were commenced by the mother in April 2012, about a month after she and the children departed the former matrimonial home.
Interim orders were made by the M Local Court in May 2012. The mother was granted sole parental responsibility for the children, they were forbidden from spending any time or communicating with the father, and the proceedings were transferred to the Federal Magistrates Court (as the Federal Circuit Court then was).
The interim orders were perpetuated by the Federal Magistrates Court and later, in June 2014, the proceedings were transferred to this Court. The dispute proceeded to final hearing in October 2014.

Proposal of mother

The mother pressed for the orders set out within her Amended Application filed on 25 July 2013, which proposal she essentially repeated in her affidavit.[1]
[1] Mother’s affidavit, paras 235-238
In effect, she wanted exclusive and unfettered control of the children, for them to live with her, and for there to be no interaction of any sort between them and the father, which outcome would reflect current circumstances.

Proposal of father

The father pressed for the orders set out within his Amended Response filed on 30 July 2014, which represented a significant change from his former radical proposals.
He wanted the parties to have equal shared parental responsibility for all five children, save for him having sole parental responsibility in respect of the three youngest children’s education.
He sought no further orders in respect of the two oldest children.
In respect of the three youngest children, he wanted them to remain living with the mother, but to spend substantial amounts of time with him following an introductory period of six months of shorter visits.

The evidence

Both parties relied upon the report dated 7 May 2014 prepared by the single expert psychiatrist, Dr W.
The mother relied upon the affidavits filed by her and the father’s half-sister, Ms S, on 26 September 2014.
The father relied upon his affidavit filed on 7 October 2014.
Two other affidavits filed by the father – on 29 August 2014 and 17 October 2014 respectively – were read by the father only to prosecute his two interlocutory applications. The first was to compel the single expert psychiatrist to produce a supplementary report following upon the single expert’s enforced observation of the children in his company. The second was to permit him to adduce adversarial expert evidence from another psychiatrist.
The father’s first application was brought by an Application in a Case filed on 29 August 2014 and was first considered on 2 September 2014. The primary application to vacate the final trial was dismissed, but the father’s allied application for the preparation of the supplementary single expert report was adjourned until the final trial to await the single expert’s views on the matter. The father renewed his application when the witnesses’ cross-examinations were complete, but the application was dismissed. The reasons which follow explain why.
Although the father did not expressly say so, it can be safely assumed he pressed his application for only the three youngest children to be observed in his company by the single expert. He accepted the two eldest children were resistant to any interaction with him and, aside from sharing in the exercise of parental responsibility for them, he sought no other substantive orders affecting them. The mother opposed any of the children’s involvement in that process.
The single expert explained in his report his decision not to observe the children in the company of the father. He acknowledged only that it “may” assist the Court for such observation to be undertaken. He added that any such observation should depend upon the Court’s findings about any risk of harm posed by the father.[2]
[2] Notation C made on 2 September 2014; Single expert report, pages 17, 47
When the single expert was cross-examined, he conceded that his observation of the children (or, inferentially, the three youngest children) in the company of the father might afford a “full picture”, but he hardly gave the impression of his eagerness to undertake the task.
He said in thousands of assessments conducted by him over many years, this was the only time he had deliberately chosen not to observe the children with their non-residential parent. The single expert said he was “unhappy about the father’s obliqueness about guns”, he “wasn’t sure about the dangerousness issue”, and he was unhappy with the safety arrangements that could be made at his professional rooms.
Such concerns of the single expert informed against the father’s proposal, but were not a complete answer because the single expert said he would undertake the task if the Court “wanted it” or considered it “essential”. Simply stated, the additional observation of the children with the father, the provision of a supplementary report, and further cross-examination of the single expert was neither desirable nor essential. There were several reasons for that conclusion.
As was revealed by the evidence and is later discussed, it can be readily accepted that the three youngest children would benefit from restoration of their relationships with the father without the need for a supplementary report to say so. If the single expert subsequently reported those three children interacted warmly with the father, it would prove nothing more than is already known or assumed. If the single expert reported to the contrary, it could only serve to impair the father’s case. The adjournment and procurement of the supplementary report would not therefore be of material advantage to the father and so he is not unreasonably prejudiced by the rejection of his proposal. Conversely, the absence of the supplementary report more probably serves to deprive the mother of the chance to argue that even the three youngest children’s relationships with the father are beyond salvage. She is not prejudiced though, because she does not want the supplementary report.
Even though the three youngest children would derive benefit from restoration of their relationships with the father, which is a primary consideration (s 60CC(2)(a)), other evidence tended to bear out the risks of harm posed by the father. Those risks of harm to the children were an equally important consideration (s 60CC(2)(b)) and, as is later explained, in aggregation with additional considerations (s 60CC(3)), carried greater weight in the determination of the proceedings. It was consequently futile pondering the desirability of restoration of the relationships between the three youngest children and the father when stronger evidence militated against it regardless.
Finally, but less importantly, the proceedings would have been unduly delayed by the father’s proposal. That was a consideration of some significance, at least from the perspective of the mother and children. The mother commenced the proceedings well over two years ago and the proceedings passed through the hands of two other courts before being transferred to this Court only four months ago. The mother is in hiding from the father and understandably anxious about the outcome of the litigation. The children are also aware of the unresolved litigation and must be wondering about their future.
It was impossible for the single expert to conduct the fresh observation of the children with the father and to then give evidence about the observation (even without compiling a supplementary report) during the course of the final hearing in October 2014. Initially, the single expert was not available until the third or fourth day of the trial, which was listed for hearing over four days, but following a request the single expert made himself available on the second day, but only because he could give evidence by telephone rather than by attending the Court in person. The single expert practices in Sydney and the trial was conducted in Newcastle. The parties earlier agreed to the single expert giving evidence by telephone.[3] The single expert could not confer with the children and the father for several weeks and the compilation of a supplementary report would take at least another week. An adjournment of the hearing was therefore inevitable. The hearing could not then be resumed until late February or early March 2015. By then the litigation would have been pending for about three years, which is an unreasonably long period for the mother and children, if not the father, to be waiting for a determination of their dispute.
[3] Order 7 made on 13 August 2014
The father’s second application was brought by an Application in a Case filed on 17 October 2014. In recent months the father consulted Dr R, psychiatrist, whom he had consulted in the past. Dr R’s affidavit was annexed to the father’s affidavit. It revealed that Dr R was informed the purpose of his retainer was to:
…prepare a report on [the father], giving the full history of your role with [the father], his cultural and familial background, his treatment, your diagnosis of him and your opinion on whether he poses any threat or risk to anyone, including but not limited to his former wife and children. (emphasis added)
The first (unemphasised) part of that instruction was unremarkable and would be information Dr R, as a past treating medical practitioner, could probably impart pursuant to rule 15.41 of the Family Law Rules 2004 (Cth) (“the Rules”). However, that part of Dr R’s evidence should be rejected, either because it is irrelevant, or alternatively, because it would unduly waste time in the manner envisaged by s 135(c) of the Evidence Act 1995 (Cth).
Dr R conferred with the father in August 2014, but only in relation to his prospective grant of a drivers licence despite his history of epilepsy. The doctor’s evidence about diagnosis, treatment, and prognosis in relation thereto could not conceivably be of any assistance in the determination of the current litigation. Prior to that, Dr R last consulted with the father in 1991 with regard to his epilepsy, and such historical opinions were similarly liable to be devoid of any current weight.
The second (emphasised) part of the instruction issued to Dr R invited him to express an expert opinion on exactly the same topic as the single expert. That was not permissible for several reasons.

Importantly, in November 2013, while the proceedings were still before the Federal Circuit Court, the single expert was chosen and appointed with the father’s consent. Inferentially, the father also agreed to the terms in which the single expert was instructed. The father can therefore have no complaint about the identity of the appointed single expert, nor his qualification and experience to offer the opinions set out within his report. Nevertheless, the father was clearly dissatisfied with the report of the single expert, since Dr R reported about the father:
…he felt that [Dr [R]] would possibly have a better understanding of his cultural background than [the single expert].
and:
…[he] expressed concern in regard to [the single expert] having been influenced by a half-sister whom he had not seen for in excess of 20 years…
As should be obvious, litigants are not permitted to call more favourable adversarial expert evidence simply because they are dissatisfied with the evidence proffered by a single expert. The Rules impose a system which seeks to avoid, so far as is possible, a multiplicity of contradictory expert opinions. The problems created by such an eventuality have been explained in the past and need not be repeated (see Re W and W: Abuse Allegations; Expert Evidence (2001) 28 Fam LR 45 at 65-71).
There is no evidence that the father sought to pose questions to, or confer with, the single expert to try and tease out and identify areas of controversy, as the Rules both permit and encourage (rules 15.64B and 15.65).
There is no evidence that Dr R’s opinions were offered from a different and substantial body of expert opinion that differed from that relied upon by the single expert; that Dr R knew material matters which were unknown to the single expert; or that there was some other special reason for permitting adversarial expert evidence (rule 15.49).
Nor did the father adduce evidence in conformity with the Rules to support his application (rule 15.52(2)).
Evidently, Dr R relied entirely upon the truth and accuracy of the history afforded to him by the father at their single consultation in September 2014 as the foundation for the opinions he expressed in his report. Although Dr R acknowledged he had not received any countervailing information from the mother or any other family member, he nonetheless courageously said:
I find it…difficult to envisage that [the father] would embark upon a course of action where he would intentionally harm his children
Of course, the mere difficulty experienced by Dr R in envisaging future events was unlikely to be persuasive evidence. But even if that opinion was taken to mean the father did not present an unacceptable risk of harm to the children, it was unwise for Dr R to offer such an opinion when he knew he had heard only one side of the story. The evidence adduced at final hearing, which is yet to be discussed and to which Dr R was not privy, rendered the expression of such a distorted opinion unreliable.
Aside from that, even if Dr R’s evidence otherwise appeared reliable, he advised in his report dated 30 September 2014 that he would be absent from the country for the entirety of the final hearing in October 2014, making it impossible for his evidence to be tested by cross-examination. It was not suggested he would be available for cross-examination by telephone. It would be patently prejudicial to the mother to permit the father to belatedly adduce such controversial adversarial expert opinion evidence, the veracity of which she would be precluded from testing.
The father was therefore also refused permission to adduce evidence from Dr R directed to the second (emphasised) aspect of his retainer.

Legal principles

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of children – primary considerations

Section 60CC(2)(a)

Although the father told the single expert he believed the mother “abandoned” the children and was “cold” to them,[4] there was really no doubt about the depth and importance of the children’s relationships with the mother. I accept the single expert’s opinions that the mother is their primary attachment figure, that they relate to her in a “warm, spontaneous and respectful” way, and that they are flourishing in her care under difficult circumstances.[5]
[4] Single expert report, page 6
[5] Single expert report, pages 26, 42
The father must now realise that is so, for otherwise he would not have recently altered his proposal to now submit for all children to live with the mother. The mother has been an excellent parent of the children, just as the father’s half-sister told the single expert.[6]
[6] Single expert report, page 11
The nature of the children’s relationships with the father is, however, a vexed question. The single expert considered the children’s relationships with the father are “troubled”, though the children have differing views about the nature of their individual relationships with the father. The eldest two reject the father outright, either through contempt or fear, but the youngest three have more positive memories and attitudes towards him. However, even the three youngest children have ambivalent feelings about him.[7]
[7] Single expert report, pages 41, 42
The absence of any form of contact with the father, in the opinion of the single expert, has:[8]
(a)certainly relieved and pleased the two eldest children;
(b)probably contributed to some impairment in the third child’s “sense of wellbeing”;
(c)probably caused the fourth child’s “fragile sense of gender identity”; and
(d)probably “not had a great effect” on the youngest child.
[8] Single expert report, page 42
Those expert opinions were not challenged and may therefore be accepted as valid. Acceptance of the opinions necessarily means that analysis of the benefit derived by the children from their relationships with the father requires individual consideration.
Neither of the two eldest children has a relationship with the father and neither perceives any benefit in developing one. The father realises as much. He deposed he would “respect their wishes”[9] and proposed no order which would compel them to visit him.
[9] Father’s affidavit, para 230
The absence of any relationship with the father has probably had some effect upon the youngest child, even if not regarded as a “great” effect, but it has had a deleterious effect upon the third and fourth children. In the belief it would benefit them, the father proposed orders that would restore regular interaction between him and the three youngest children. The mother, however, did not foresee the derivation of any benefit by the three youngest children resulting from rejuvenated relationships with the father.
Restoration of the three youngest children’s relationships with the father would most likely benefit them, but there is no utility in setting about restoring such relationships if other evidence powerfully motivates a contrary outcome.
There would almost certainly be countervailing emotional disturbance for the two eldest children and the mother if the three youngest children’s relationships with the father were restored, which is a consideration properly addressed under s 60CC(3) of the Act.
Moreover, while children usually benefit from both the development and maintenance of good relationships with both their parents, that benefit is annulled when such relationships are abusive (see U v U (2002) 211 CLR 238 at 285-286; M v M (1988) 166 CLR 69 at 76). The mother contended the children lived in emotionally abusive relationships with the father until she escaped with them in March 2012, and the evidentiary foundation for that contention requires discussion under s 60CC(2)(b) of the Act.

Section 60CC(2)(b)

The mother conducted her case on the basis that the children were psychologically damaged by the past family violence to which they were exposed by the father, and further, they remained at risk of both psychological and physical harm in the future.
The evidence of past family violence adduced by the parties was impossible to reconcile. Each party alleged the other engaged in violent and threatening behaviour and each denied such behaviour on their part.
The mother was a very convincing witness. She unhesitatingly made concessions when they were warranted, but resolutely adhered to her evidence when she disagreed with propositions put to her in cross-examination. She did not appear to exaggerate. She was measured, careful, and credible.
By comparison, the father was an unsatisfactory witness. He tended to dissemble and obfuscate and, in some respects, his evidence was incredible. The single expert independently formed a similar view of the father, finding him to be “not completely honest” and “less reliable” than the mother.[10]
[10] Single expert report, pages 43, 46
In circumstances where the parties’ evidence differed and neither was independently corroborated, the mother’s evidence was much preferable.
There was a surfeit of evidence about the propensity of the father to cause harm to the children by his subjection or exposure of them to family violence, the virulence of which was enriched by the father’s character traits and his underlying psychological condition.

Father’s personality

The single expert traced the father’s recent psychological history.
When first remanded in custody in March 2012, the father was the subject of psychiatric assessment. He was not diagnosed with any recognised mental illness, but he had “paranoid tendency in his thinking”.[11]
[11] Single expert report, page 13
A subsequent assessment in May 2012 identified the father was “quite thought disordered” and had “persecutory beliefs that appeared to be delusional”. It was considered he suffered from psychosis of some description, about which he had no insight.[12]
[12] Single expert report, pages 13-14
The father was assessed again in July 2012. The doctor who undertook that assessment concluded the father did not suffer from any underlying psychosis, but rather suffered from “Cluster B personality disorder” involving a combination of borderline, narcissistic, and paranoid traits.[13]
[13] Single expert report, page 14
The single expert found the father had “a most unusual personality structure” which was “particularly difficult to appraise”.[14] Nonetheless, his final opinion was that the father suffers from “Personality Disorder Not Otherwise Specified”, of which condition the most predominant personality traits are suspicion, distrust, inability to forgive, defensive irritability, self-absorption, self-importance, lack of empathy, and a strong sense of entitlement[15] – characteristics which are not readily compatible with the desirable qualities of competent parenting capacity. Those traits are now “so entrenched in his character that they are stable aspects of his personality” and are responsible for “significantly impair[ing] almost all of his interpersonal relationships”.[16]
[14] Single expert report, page 43
[15] Single expert report, page 45
[16] Single expert report, page 46
The single expert was not challenged about the validity of those opinions, which may therefore safely be accepted as correct.

Family violence

In the context of the father’s inherent propensity for rigidity and irritability in the face of any resistance to his authority, I find that he frequently perpetrated acts of family violence upon the mother in the presence of the children, largely in accordance with the mother’s evidence.
The tension and conflict between the parties was relatively constant and resulted in them sleeping apart on their rural property for most of the last 10 years of their relationship.[17] The mother felt as though she constantly “walk[ed] on eggshells” and hoped each day would pass without an “explosion” by the father.[18] Their verbal arguments were frequent, but the mother conceded that instances of the father’s physical violence and intimidation were sporadic throughout their relationship.[19] Such instances were, however, frightening when they occurred and still memorable to the mother.
[17] Mother’s affidavit, para 37
[18] Single expert report, pages 20, 23
[19] Mother’s affidavit, paras 46-47; Single expert report, page 19
The father first assaulted the mother when she was pregnant with the second child during 1999. He pushed her and wrestled her to the ground. Not long after the second child’s birth the father pushed the mother over whilst she was holding the baby.[20]
[20] Mother’s affidavit, paras 48-50
In 2004 the father threatened to kill the mother and the children. The mother, who presented as a stoic and resilient person, was so frightened she secretly escaped the property with three children by hiking on foot over a mountain range. They walked for some 30 kilometres through the night to another remote farmhouse where she sought refuge.[21] Self-evidently, such an arduous trek must have been undertaken in desperation. The mother would not have forced herself and her young children to endure it unless she was scared witless.
[21] Mother’s affidavit, para 54
The father’s violent tendency was not confined to his treatment of the mother. In 2009 he conceded he came close to using an axe to murder an unknown woman with whom he had argued while visiting a local township.[22]
[22] Mother’s affidavit, paras 56-57
During an argument several years ago the father threatened the mother with rape and then physically dragged her to a room and throttled her.[23]
[23] Mother’s affidavit, paras 51-52
In 2010, following an argument, the father chased the mother with a lump of timber threatening to strike her with it.[24] That incident was also memorable to the two eldest children, who witnessed the event. They each independently reported to the single expert having seen that altercation.[25]
[24] Mother’s affidavit, paras 58-59
[25] Single expert report, pages 30, 34
The mother did not report any of those violent incidents to authorities because of her fear of the father.[26] The family lived in virtual isolation on an extremely remote rural property. The mother understandably worried that police intervention might only aggravate rather than ameliorate her predicament. It was difficult for her to escape and live independently with the children because she had no job, no income, no rental history, no relatives, and few friends.[27]
[26] Mother’s affidavit, para 55
[27] Mother’s affidavit, para 63
The mother’s unhappiness resulted in a final argument between the parties which lasted several days, ending in early March 2012.[28] The incident culminated with an assault by the father upon the mother and the intervention of the eldest child in the fight to help the mother physically subdue the father.
[28] Mother’s affidavit, paras 67-95
During the course of their argument and the assault, the father made threats to the mother, such as:
I’m going to kill you now before you kill me
I feel like butchering you like a beast
The mother alleged, and I accept, that the father threatened the lives of both her and the children on previous occasions.[29] The mother also said, and I accept, that on other occasions throughout their relationship the father threatened to kill himself.[30] The two eldest children both told the single expert they had heard the father threaten to kill himself,[31] and the father told his half-sister he was intent on killing himself.[32] The father admitted he once frightened the mother by holding a gun to his own head,[33] so his other denials of threatening to kill himself, which he made to the single expert,[34] in his evidence in chief,[35] and during cross-examination, were patently false.
[29] Mother’s affidavit, paras 4, 20, 54, 60, 61, 110, 191
[30] Mother’s affidavit, paras 4, 60, 91, 191
[31] Single expert report, pages 32, 34
[32] Single expert report, page 10
[33] Father’s affidavit, paras 98-100
[34] Single expert report, page 13
[35] Father’s affidavit, para 221.3
The mother made good on her escape from the father in March 2012 by way of a ruse. For some time it had been planned she would take three of the children to town for several days. She departed with those children, but not for the purpose originally planned. She instead sought refuge with family friends, from where she contemplated how best to extract the other two children from the father without danger to them. After a delay of some 48 hours, in the realisation she needed help, she approached police for assistance. On written complaint from the mother and eldest child, the police arrested and charged the father and returned the other two children to the care of the mother.[36]
[36] Mother’s affidavit, paras 96-100
The father was incarcerated from the time of his arrest in March 2012 until he was eventually released in March 2013. Despite the father’s prevarication, there can be no doubt about the circumstances of the final violent confrontation between the parties at the time of their separation. The father was represented by counsel in his criminal prosecution. On the advice of his counsel he pleaded guilty to a variety of charges and asked the court to take into account a variety of other charges when his sentences were imposed.[37] His criminal record attests to the nature of his convictions and sentences.[38] The factual basis upon which he was sentenced was amply set out within the statement of facts which, with his consent, was tendered to the court at his sentence hearing.[39]
[37] Exhibits M1, M2
[38] Exhibit M4
[39] Exhibit M3

The father’s violent domination and intimidation of the mother during their relationship was sustained, potent, and reprehensible. In a rare moment of unguarded candour, the father admitted as much when he wrote to the mother in March 2012 from prison conceding he had humiliated her in an offensive and spiteful way.[40]
[40] Mother’s affidavit, para 105, Annexure F (page 69)
Upon the father’s arrest and imprisonment, the mother took the opportunity to disappear with the children. They initially stayed with friends for about a month, but then relocated to another undisclosed place in NSW, using a different family surname. Despite the mother’s attempts to enforce a complete embargo on their interaction with the father, the father managed to learn the general locality of their residence and the mother’s telephone number.[41]
[41] Mother’s affidavit, para 112
Despite the father’s awareness of an apprehended violence order forbidding any contact at all between him and the mother, he telephoned the mother briefly in November 2013 and said to her words to the effect “Don’t you know who this is?”. He had earlier breached the order by sending letters to the mother from prison in March 2012, for which he was only fined. However, he was charged, convicted, and sentenced to a further three months imprisonment for the last breach.
The breach of the order in November 2013 was plainly deliberate, for otherwise he could not have been convicted of the offence. His conduct was particularly sinister because nearly two years has passed since their separation and he was aware the mother was intentionally living in hiding from him. He was not acting uncharacteristically in a moment of heightened emotion. It was a cold and calculated ploy. He made no express threat to the mother, but his menace was implied. The most probable motive for his telephone call to the mother was to demonstrate she could not escape him: he knew how to find and contact her even though he was bound by an order precluding it and she was actively hiding from him. His veiled threat worked. The mother was and remains terrified. She is perfectly justified to hold concern that the father has little respect for court orders.[42]
[42] Mother’s affidavit, paras 107, 173
The mother’s fear of the father is elevated by his access to firearms. While it may be presumed the firearms seized by police upon the father’s arrest in March 2012 were not returned to him, she has no comfort he has not since obtained others. The father was impelled to admit he is known by numerous alias names, which are noted on his criminal record,[43] and that he holds other official forms of identification in a false name. Significantly, he held a firearms licence in a false name,[44] and may still do so.
[43] Exhibit M4
[44] Mother’s affidavit, paras 18, 39, Annexure B (page 45)
The single expert found the father evasive, if not dishonest, when discussing the firearms he formerly possessed. Similarly, his evidence on the topic at the hearing was incredible. Notwithstanding his firearms convictions in March 2012, during cross-examination the father said “I have never had a gun”. When challenged about the absurdity of that answer he tried to explain how he meant he did not “own” a gun, not that he did not “possess” a gun. His explanation was facile and unconvincing.
The father audaciously described himself to the single expert as a pacifist who rejects violence, and further, he had never been a violent person. While the single expert accepted that might be the father’s philosophical stance, he gently explained he was not persuaded the father uniformly employed that philosophy.[45]
[45] Single expert report, pages 9, 46
Similarly, in cross-examination, the father said “I am not an aggressive person”, which evidence was plainly untruthful. He was previously convicted of assaulting the mother and, when he wrote to her in March 2012, he admitted his past “aggressive reactions”, for which he then purported to express regret.[46]
[46] Mother’s affidavit, para 105, Annexure F (page 75)
The single expert found the mother to be a much more reliable historian than the father in relation to the overarching issue about the “children’s safety”.[47] The same conclusion is inevitable on the tested evidence.
[47] Single expert report, page 43
The mother has every reason to still harbour fear of the father in circumstances where: he made many past threats to kill her, the children, and himself; he previously had ready access to rifles, shotguns and pistols and gave no reason to believe he does not still have; he cannot forgive perceived slights against him easily; he is defensive and irritable; he has a strong sense of entitlement; he lacks empathy; he was cunning enough to discover the locality of her residence despite her best efforts to avoid his detection; and he is willing to deliberately flout court orders to achieve his ends.
The mother deposed that:[48]
It is my experience that when stressed or frustrated, [the father] can react in an unpredictable, irrational and highly aggressive way without regard for any consequences.
[48] Mother’s affidavit, para 62
The mother acknowledged her belief the father loved the children but, so far as she was concerned, that was no insurance he would not harm them. She genuinely believes the father has the capacity to harm them or her if he is desperate enough, and there is no telling when his mood will fluctuate.
She was largely vindicated by the evidence of the single expert. Of the various risks of harm the single expert found the father potentially posed to the children, one was the risk of their physical harm. The single expert found it difficult to estimate the degree of the risk, but was prepared to at least tentatively describe it as an “unacceptable” risk. Because of the father’s unpredictability, the single expert could not eradicate his concern about what the father might do to the children if “under a great deal of stress”. Even if the children’s interaction with the father was “heavily regulated” in a contact centre, the single expert remained worried about the involvement of the father and children in a “disaster”.[49] In cross-examination he added that even the formality of a contact centre does not necessarily offer sufficient protection from “secretive and brooding” people like the father.
[49] Single expert report, page 47
The single expert did not elaborate the nature of the “disaster” he contemplated, but there could be little doubt it was an intended reference to the possibility of suicide, murder, grievous injury, or abduction. The single expert was careful to couch the description of his concern in conditional and moderate terms, but his residual concern about the father’s unpredictable propensity to cause serious harm looms large as a determinant in these proceedings.
It is of little comfort that the father’s behaviour until this point has been confined to assaults upon the mother in the presence of the children – which of course is odious enough – but a person with the psychological proclivities of the father cannot repeatedly make death threats about his family and not expect them to be taken seriously, especially when that person has the father’s familiarity with and apparent access to firearms.
The evidence justifies a finding that the father poses an unacceptable risk of physical and psychological harm to the children by his exposure or subjection of them to family violence. He poses the same risk to the mother, which is an additional consideration of significance (s 60CG).
The father contended, both to the single expert and in evidence, that he was subjected to physical and emotional abuse by the mother. He alleged she had “bashed him up a few times” and he was “scared” of her.[50] Such evidence is best described as fatuous.
[50] Single expert report, pages 2, 9, 10; Father’s affidavit, para 86

Sexual abuse

Both parties ventilated grievances about the risk of the children’s sexual abuse, but the evidence did not warrant their professed level of concern.
The mother contended the father posed such a risk to the children. Her concern sprang from her knowledge of a past incestuous relationship between the father and his half-sister. The father denied it, but I accept it occurred. The relationship between them occurred around 25 years ago, while they were both adults and both consented. The father’s half-sister was considerably younger than him and he probably exploited her immaturity and vulnerability, but even so, it was a consensual adult sexual relationship. The only peculiarity about it was their familial connection, but that alone is insufficiently suggestive of the father’s willingness to sexually molest any of the children. It may be a risk, but it is not quantifiable as unacceptably high. The mother felt impelled to accept that was so when the evidence was analysed during final submissions, despite the equivocation of the single expert.[51]
[51] Single expert report, page 47
The mother maintains a friendship with a married couple who now live interstate. The husband in that relationship was convicted of indecently assaulting some juveniles when he was a young adult, more than 30 years ago.[52] The father submitted that man posed an unacceptable risk of harm to the children, because he may molest them, and sought an order restraining the mother from allowing the children to be anywhere near him.[53]
[52] Exhibit M6
[53] Amended Response, Order 8
The mother and children only visit that couple interstate once per year. The mother knows of that man’s history and will likely be vigilant about the children’s safety. While the man does pose some risk of harm to the children, the brevity and infrequency of their interaction with him means the risk of their harm is not unacceptably high. There is no need to over-react and make an injunction in the broad and unconditional terms proposed by the father. In fact, no injunctive order at all is necessary when one accepts the mother can be relied upon to exercise her parental responsibility for the children in a way that ensures their safety.

Best interests of children – additional considerations

The nature of the children’s relationships with the father has already been discussed, but the reasons for the deterioration of those relationships do bear upon the parties’ parenting capacities as a relevant consideration under s 60CC(3) of the Act.
The father adhered to his strong opinion that the mother deliberately influenced the children against him, but that was not an opinion shared by the single expert, who concluded the children’s varying degrees of resistance to the father was at least partly a result of their own experiences with him. They were weary of the father’s “suspicious, rigid, and overbearing behaviour”.[54] The eldest four children, in discussions with the single expert, were each able to relate first-hand accounts of unpredictably violent domination of them and the mother by the father.[55]
[54] Single expert report, page 42
[55] Single expert report, pages 30-32, 34-35, 37-38, 39
The single expert explained that the father’s attribution of blame to the mother and his rejection of any personal responsibility were entirely consistent with his personality traits.[56] He further explained how it was “highly likely” the father had no insight into that process, would reject the single expert’s opinion, and incorporate it into the conspiracy he perceives is working against him.[57]
[56] Single expert report, page 45
[57] Single expert report, page 46
The father is convinced of his entitlement to interaction with the children and that his entitlement has been deliberately thwarted by the mother. He told the single expert he:
…has now dedicated himself to getting access to the children and to letting them know what actually happened.[58]
and:
…was…intent on setting the record straight on the mother, and particularly that the children heard his truth of the matter.[59]
[58] Single expert report, page 15
[59] Single expert report, pages 46-47
What “actually happened” and “the truth of the matter”, according to the father’s perception, is the mother conspired with other professionals and agencies to unjustifiably keep the children from him.
Although the father asserted in cross-examination that the single expert had misunderstood him, I do not accept his evidence. There can be no doubt about the father’s intent to correct the children’s perceptions so they align with his own. He even told his half-sister he is intent on telling the children “what he regards as the truth about their mother”.[60] Few parents can tolerate the knowledge that their children disrespect them. The father would find it impossible to refrain from impressing his view of the world upon the children in an attempt to correct their attitudes towards him at the first available opportunity, and probably thereafter repeatedly lecture them.
[60] Single expert report, page 16
The single expert formed exactly the same view about the father. He thought the father would “insistently press” his “unshaken” views about the mother on the children until they capitulated and signified their acceptance of his views. The single expert identified that eventuality as one of the plausible unacceptable risks of harm to the children.[61] The single expert amplified such evidence during cross-examination, quantifying that risk as a “high chance”. He said the father “never forgets” and argues his case repetitively. He also said the father was “tenacious about taking things to the bitter end if he is confronted”.
[61] Single expert report, page 47
The two eldest children were resistant to any resumption of interaction with the father, but were so worried about the three youngest children resuming visits with the father that they would consider accompanying them to ensure their safety.[62] The single expert imputed they would see themselves as “protectors” of the younger children.[63]
[62] Single expert report, pages 32, 34
[63] Single expert report, page 43
The three youngest children discussed their feelings about the father with the single expert. The third child said she “kind of wants to see [the father]”, but was worried it would impinge on other arrangements in her life.[64] The fourth child said “there were times when he missed his father”.[65] The youngest child said she “misses her father sometimes”.[66] On the whole, such comments could not be fairly regarded as unreserved expressions of committed desire to resume regular interaction with the father, though they do evince regret about the complete loss of the father from their lives.
[64] Single expert report, page 38
[65] Single expert report, page 39
[66] Single expert report, page 41
The single expert considered the mother would probably support any orders that provided for the children to spend time with the father on a “professionally supervised basis”,[67] but I am not similarly convinced. I doubt the mother would deliberately sabotage implementation of orders to that effect, but she is too traumatised by her former experiences with the father to actively support such orders. Shortly after the parties’ separation, the mother was diagnosed with “a form of PTSD” due to her former “fraught domestic situation”,[68] for which she briefly sought counselling before moving away.[69]
[67] Single expert report, page 43
[68] Exhibit M9
[69] Exhibit M8
I unreservedly accept the mother still lives in abject dread of the father’s prospective re-entry into her life and the lives of the children. The single expert confirmed in cross-examination that the mother’s fear was indeed genuine, but he remained uncertain whether her parenting capacity would be deleteriously affected if orders were made for “unrestricted contact” between the children and the father.
The available evidence falls short of proving the mother would react so adversely to future personal interaction between the children and the father that her parenting capacity would deteriorate and impinge the children’s best interests, thereby justifying elimination of the father from their lives (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544-546; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]). Nonetheless, the mother’s fear, which was not only genuine but also objectively reasonable, is still a feature of the evidence that favours curtailment of the children’s interaction with the father.
The father denied, to the single expert,[70] in evidence in chief,[71] and during cross-examination, that he had ever used cannabis. His denial was contradicted by the mother, who deposed to his daily use of cannabis for the last 12 years of their relationship.[72] His denial was also contradicted by the two eldest children, who described in detail their observations about the cultivation and preparation of cannabis upon the property, which could only logically have been controlled by the father.[73] His denial was also contradicted by his half-sister.[74]
[70] Single expert report, page 15
[71] Father’s affidavit, para 186
[72] Mother’s affidavit, paras 40, 70
[73] Single expert report, page 27
[74] Ms S’s affidavit, paras 31-32
The issue of the father’s illicit drug use attracted little attention during the final hearing, but is still a feature of the evidence that recommends against the children spending unsupervised time with him. Given rejection of the father’s denial of illicit drug use as untruthful, nothing is known about his current level of drug use. The former order requiring his submission to urinalysis was never invoked. The evidence does not prove, on the balance of probabilities, that the father is now abstinent. In the face of his past drug use, he is probably not abstinent, but nothing more can usefully be said. If the father was stupefied by illicit drugs in the future he would be unable to properly supervise the children and he would be modelling illegal and immoral conduct to them.
The father is still bound by an apprehended violence order made by the Local Court of NSW on 9 May 2014. A similar order was in force from March 2012 and the current order will remain in force until 8 May 2016. It is intended to protect the mother from the father.[75]
[75] Mother’s affidavit, para 9
When the provisional order was originally made for the mother’s protection in March 2012, the children were also named as protected persons, but they are not expressly nominated on the existing order.[76] The father should not be misled by that alteration. The children may still be “protected persons” under the order because of their domestic relationship with the mother (see ss 5, 36, 38, and 42 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). It remains unknown whether, when the final order was made, the court was satisfied there were good reasons for excluding the children from protection under the order (s 38(3)). There is no endorsement to that effect upon the order.
[76] Mother’s affidavit, para 11
The current apprehended violence order provides, in part:
The defendant must not approach or contact the protected person(s) by any means whatsoever except through the defendant’s legal representative.
The “defendant” is of course the father.
The “protected persons(s)” is the mother, but perhaps also the children.
The order therefore potentially extends to forbid any interaction between the father and the children, other than through the father’s lawyers.
This Court is, of course, empowered to make parenting orders that override the terms of the apprehended violence order, but should only do so if it is necessary to promote the children’s best interests.
It is not necessary in this instance to make orders enabling personal interaction between the children and the father, but it is in the children’s best interests to maintain occasional written communication with the father. The orders that so provide will therefore prevail over the apprehended violence order, to the extent it might be inconsistent, until its expiration.

The following explanation is given to the parties pursuant to the Court’s obligations under s 68P(2)(c),(d) of the Act:
(a)The parenting orders are potentially inconsistent with paragraph 7 of the apprehended violence order because they permit the father to communicate with the children in writing, other than through his legal representative.
(b)It is necessary to make parenting orders which are potentially inconsistent with paragraph 7 of the apprehended violence order in order to promote the children’s best interests.
(c)The children’s best interests are promoted by them occasionally communicating with the father so they are aware he has not abandoned them and so they will be more readily able to restore their relationships with him when they are adults, should they wish to do so.
(d)The parenting orders set out how the children and father are able to communicate.
(e)The parenting orders do not require breach of paragraphs 1(a), 1(b), or 1(c) of the apprehended violence order, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the apprehended violence order may be consistently obeyed.
(f)Contravention, variation, or revocation of the apprehended violence order will be dealt with by prosecution or application in the Local Court of NSW.
(g)Contravention or variation of the parenting orders will be dealt with under the terms of the Act.

Conclusions and orders

The presumption of equal shared parental responsibility does not apply because of the father’s commission of family violence (s 61DA(2)). Even if the father’s evidence was accepted over the mother’s, the presumption would still not apply because he alleged the mother perpetrated family violence upon him.
The father sought the allocation of equal shared parental responsibility for the children to the parties, subject to an exception related to educational decisions for the three youngest children, in respect of which he wanted sole parental responsibility.[77] No order could have been properly made in those terms anyway because the concept of “equal shared parental responsibility” is indivisible: it is either equal and shared in all respects or, by definition, it cannot be “equal shared parental responsibility” (see Pavli v Beffa (2013) 48 Fam LR 677).
[77] Amended Response, Order 1
Nevertheless, the father’s proposal for the parties to share any aspect of parental responsibility for the children was grievously flawed. The mother is afraid of him and unable to communicate with him.[78] No aspect of the exercise of parental responsibility for the children has been shared between the parties since March 2012. The mother would find it impossible to negotiate with the father over matters of significance to the children, as the law would require of her if equal shared parental responsibility was allocated (s 65DAC).
[78] Mother’s affidavit, paras 142, 174, 176
There is no feasible option but to allocate parental responsibility exclusively to the mother, since it is uncontentious the children will continue to live with her.
The mother sought orders directing or permitting her change of the children’s surname,[79] but she already knows such orders are unnecessary once she is allocated sole parental responsibility for them.[80] However, the father sought an order restraining the mother from changing the children’s surname.[81]
[79] Amended Application, Orders 8-10
[80] Mother’s affidavit, para 179
[81] Amended Response, Order 7
The father thought retention of their original surname would help instil in them their European heritage. Although he did not submit so, it might also help them maintain a link to him in the probable absence of personal interaction between them for the remainder of the children’s minority. But they are not the only considerations. The children have been using a different surname for the last two years whilst in hiding from the father, by which name they are now enrolled at their schools and known by their peers. The mother also uses the same new surname, so compelling the children’s use of their former surname would result in them having a different surname from the mother, with whom they will continue to live.[82]
[82] Mother’s affidavit, paras 221-230
Any decision about the surname by which a child should be known is dictated by the child’s best interests. There is no onus of proof. It is for the Court to balance in its discretion the factors for and against the change (see Chapman v Palmer (1978) 4 Fam LR 462). That decision will be informed by such factors as the degree of identification of the child with the existing surname, and any difficulties or embarrassment for the child in using the same or a different surname. The list of factors is not exhaustive (see Flanagan v Handcock (2001) FLC 93-074 at [19]-[38]; M v B [2001] FamCA 894 at [35]-[37]; Marriage of Mahony & McKenzie (1993) 16 Fam LR 803).
No order should be made restraining the mother from allowing the children to use their current surname and compelling her to ensure they use their former surname. The children will probably have very little to do with the father henceforth. Their identification with the mother is important. They should not be forced to use a different surname from hers. Their ability to use a different surname will also make it easier for them to evade the father’s detection of their residence.
The mother sought orders permitting her to obtain passports for the children,[83] but there is no need for such orders in the face of her allocation of sole parental responsibility. That is sufficient authority for the issue of passports for the children (see s 11 of the Australian Passports Act 2005 (Cth)). The father opposed the issue of passports for the children to the mother, unless he could also use them to take the children on international holidays, but his opposition was misconceived.
[83] Mother’s affidavit, paras 235-238
As already mentioned, the father sought no orders to dictate the manner in which the two eldest children should spend time or communicate with him. His attention was directed to only the three youngest children. He sought that they immediately begin a graduated regime of re-introduction, which would culminate some six months hence in them spending “substantial and significant time” (s 65DAA(3)) with him.[84]
[84] Amended Response, Order 3.3
The father’s proposal exemplified his lack of insight. Its genesis was his desire, not the children’s best interests. Just as the single expert explained, the father’s personality caused him to either thoughtlessly or deliberately put his interests ahead of the children’s.[85]
[85] Single expert report, page 45
The single expert was reluctant to even recommend that the youngest children spend time with the father at a contact centre, but even if that was to occur, the single expert considered the father needed counselling about “the consequences of interrogating the children about their mother”, which the children would find upsetting.[86] The father could not conceivably be compelled by court order to accept such counselling as a condition of his interaction with the children. His pride and obduracy would incline him against submission to therapy. Orders of that sort would almost certainly fail, resulting in more litigation.
[86] Single expert report, page 43
Orders cannot safely be made for the children to spend unsupervised time with the father.
Nor can orders safely be made for the children to spend time with the father under professional supervision at a contact centre.
Those conclusions are dictated by the following considerations:
(a)The need to protect the children from the risk of physical and psychological harm posed by the father’s subjection or exposure of them to family violence;
(b)The need to protect the children from the risk of psychological harm which would be caused by the father’s repetitive lectures designed to correct their attitudes about him and assign blame to the mother;
(c)The need to protect the mother from the risk of family violence at the hands of the father;
(d)The need to assuage the mother’s reasonably held fear of her sufferance of family violence at the hands of the father;
(e)The clearly expressed resistance of the two eldest children to any form of interaction with the father;
(f)The need to abate the worry of the mother and two oldest children about the prospect of the father harming or abducting the three youngest children if they spend time with him;
(g)The ambivalence of the three youngest children to the resumption of their relationships with the father, which must be balanced against the benefit each of them would probably derive from re-establishing and maintaining some form of relationship with the father; and
(h)The need to inure the children from the father’s probable continued use of illicit drugs; and
(i)The single expert’s reluctance to recommend that the children spend time with the father even in the sanctity of a contact centre.
Even if it was theoretically possible for the children to spend supervised time with the father, there would be pragmatic difficulty in making prescriptive and enforceable orders for it to occur.
The father now knows the region in which the mother lives, which is in rural NSW. He now lives interstate, though he would be willing to swiftly relocate his residence to the near vicinity of the mother. Nevertheless, that ignores the reality of the mother’s enduring desire to keep her residential location secret from the father. She will shortly complete her tertiary qualifications and will look for suitable employment anywhere in Australia. The father agreed the mother should be able to move to take up employment opportunities. It is unknown where the mother will move and, even if the father becomes aware of that locality, it is unknown if it is to a locality to where he would similarly be prepared to move. The orders cannot therefore dictate use of any particular contact centre.
In any event, even if a contact centre in a capital city was arbitrarily chosen to widen the scope of compliance, normal conversation between the children and the father at the contact centre would alert the father to the name of the schools the children attend and the sporting clubs for which they play, thereby revealing the locality in which they live.
The only orders that can safely be made, which manage the risks posed by the father to the children, are for the children to maintain written communication with the father. The orders therefore make provision for the father to periodically correspond with them. The children will derive benefit from knowing the father has not abandoned them and is still interested in their progress. As the children individually attain their majority they will be able to make their own decision about whether they seek restoration of a more meaningful relationship with the father. The preservation of a communication link will facilitate that restoration process should it be desired.
The orders implement a system for how the correspondence is sent and received without the mother and children having to reveal their residential location. The post office box or postal address retained by the mother need not be anywhere near her home.
The suppression order and injunctive orders impede the father’s ascertainment of the mother’s residential location and, if he learns of it anyway, prohibits his attendance at or near her home and the children’s schools.
The mother sought an order that restrained Centrelink staff from responding to any future location order.[87] No such order is made as its purpose was not explained. There is no current application for a location order and none of the orders now made could feasibly generate the need for any location order to be made by the Court in the future.
[87] Amended Application, Order 11
The father sought an order which would permit him to obtain details about the children’s medical treatment and educational progress.[88] No such order is made as it would compromise the mother’s ability to maintain the secrecy of her residence. The children’s medical records would disclose their address. School reports would disclose the locality of their residence.
[88] Amended Response, Order 9
The orders make no provision for any of the children to spend any time with the father, but nor do the orders preclude it. Whether any of the children spend time with the father and, if so, the circumstances under which it is allowed to happen will be decided by the mother as an incident of her sole parental responsibility for the children. It could be that in the future one or more of the children do express to the mother a stronger desire to see the father. It is feasible the mother may conclude that they have attained sufficient maturity that they are able to safely visit the father briefly and in secure circumstances. An injunction should not preclude such an eventuality.
The father sought an injunction precluding the parties from discussing the “content of the Court proceedings” with the children.[89] No such order is made as it would preclude the children being informed of the outcome of this litigation. There is no Independent Children’s Lawyer to explain the outcome to them, so it must be the mother.
[89] Amended Response, Order 11
The orders set out at the commencement of these reasons deliver a result that serves the children’s best interests.

I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 11 November 2014.

Associate:

Date: 11 November 2014