Elliott and Johnson

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLIOTT & JOHNSON

[2016] FCCA 63

Catchwords:
FAMILY LAW – Parenting – whether there should be an equal parental responsibility order – whether the children should live with each parent on an equal shared care basis – whether the father suffers from a psychiatric disability – whether the children are safe in his care – whether he has engaged in family violence.

Legislation:

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

Mazorski v Albright (2008) 37 FLR 518
Tait & Dinsmore (2007) FamCA 1383
Godfrey & Sanders (2007) Fam CA 102

Applicant:

MR ELLIOTT

Respondent:

MS JOHNSON

File Number:

DGC 1535 of 2014

Judgment of:

Judge Small

Hearing date:

2 and 3 July 2015

Date of Last Submission:

3 July 2015

Delivered at:

Melbourne

Delivered on:

18 January 2016

REPRESENTATION

Counsel for the Applicant:

Self-represented

Solicitors for the Applicant:

Self-represented

Counsel for the Respondent:

Mr Allen

Solicitors for the Respondent:

Chris Woods & Associates

Counsel for the Independent Children's Lawyer:

Mr Lynch

Solicitors for the Independent Children's Lawyer:

Peter Lynch

ORDERS

All previous parenting orders in relation to the children
W born (omitted) 1999 (“W”)
X born (omitted) 2002 (“X”)
Y born (omitted) 2004 (“Y”) and
Z born (omitted) 2010 (“Z”)
(collectively “the children”)
are hereby discharged.
Subject to the provisions of paragraph 3 hereof, the mother shall have sole parental responsibility for the children.
The mother shall inform the father in writing (which includes by text message or email) at least 21 days before making decisions about the following matters:
a)Any change in the children’s school;
b)Any religious instruction the children receive, whether at school or otherwise;
c)Any non-emergency surgery or serious medical treatment the children or either of them is to undergo;
d)Any proposed change in the children’s name;
e)Any proposed relocation of more than 20 kilometres from her present residence;
and the father shall provide his views, if any, in relation to all such information within ten days of receipt.
To avoid confusion, all final decisions in relation to the matters set out in paragraph 3 hereof shall rest with the mother.
The children shall live with the mother.
The child W shall spend time and communicate with the father according to arrangements he makes with the father from time to time.
The father shall spend time and communicate with the children X, Y and Z as follows:
a)From 4:00 p.m. on Friday 22 January to 10:00 a.m. on Monday 25 January 2016;
b)During school terms on each alternate weekend from after school on Friday until the commencement of school on Monday commencing on the second weekend of the 2016 school year.
c)During school terms on each alternate Thursday from after school until 7:30 p.m. commencing on the first Thursday of the 2016 school year.
d)For half of the school term holidays each year by agreement and failing agreement from noon on the first Saturday to noon on the second Saturday in the first and third term holidays and from noon on the second Saturday until noon on the third Saturday in the second term holidays;
e)For three weeks in the long summer holidays each year by agreement and failing agreement as follows:
i.For the first, third and fifth weeks in the 2016-2017 holidays from noon on the first, third and fifth Saturdays to noon on the second, fourth and sixth Saturdays;
ii.For the second and third weeks and the fifth week in the 2017-2018 holidays from noon on the second Saturday to noon on the fourth Saturday and noon on the fifth Saturday to noon on the sixth Saturday;
iii.For the last three weeks in 2018-2019 and each alternate year thereafter such that the children are returned to the mother at noon on the Saturday before the commencement of the next school year;
iv.For the first three weeks in 2019-2020 and each alternate year thereafter from noon on the first Saturday until noon on the fourth Saturday;
f)From 3:00 p.m. on Boxing Day to 5:00 p.m. on 28 December each year;
g)From after school on the day before Good Friday until 4:00 p.m. on Easter Eve in even-numbered years and from 4:00 p.m. on Easter Eve until 4:00 p.m. on Easter Monday in odd-numbered years should Easter fall on a weekend when the father would not usually be spending time with the children pursuant to these orders;
h)From after school until 7:30 p.m. on the evening before each of the children’s birthdays in even-numbered years and from after school until 7:30 p.m. on each the children’s birthdays in odd-numbered years should they fall on a school day;
i)For four hours by agreement on each of the children’s birthdays, should they fall on a non-school day when the father would not usually be spending time with the children pursuant to these orders, and failing agreement from 10:00 a.m. until 2:00 p.m. in even-numbered years, and from 2:00 p.m. until 6:00 p.m. in odd-numbered years;
j)From after school until 7:30 p.m. on the father’s birthday each year should it fall on a school day;
k)For four hours by agreement on the father’s birthday each year should it fall on a non-school day when the children are not usually spending time with the father pursuant to these orders, and failing agreement from 10:00 a.m. until 2:00 p.m. in even-numbered years and from 2:00 p.m. until 6:00 p.m. in odd-numbered years;
l)From 10:00 a.m. until 6:00 p.m. on Fathers’ Day each year should they not otherwise be spending time with their father pursuant to these orders;
m)At such other times as the parties may agree in writing from time to time.
If the father would otherwise be spending time with the children pursuant to paragraph 7 hereof, his time shall suspend at the following times:
a)from 1:00 p.m. on Christmas Eve to 3:00 p.m. on Boxing Day each year;
b)from 10:00 a.m. on Mothers’ Day each year;
c)for four hours by agreement on each of the children’s and the mother’s birthdays each year, and failing agreement:
i.from after school until 7:30 p.m. on each birthday in even numbered years and from after school until 7:30 p.m. on the evening before each birthday in odd-numbered years should they fall on a school day;
ii.from 10:00 a.m. until 2:00 p.m. in odd-numbered years and from 2:00 p.m. until 6:00 p.m. in even-numbered years should they fall on a non-school day;
d)at such other times as the parties may agree in writing from time to time.
The provisions of paragraphs 7(b) and (c) hereof shall suspend during school holidays and shall recommence after the holidays as though the holidays had not intervened.
Changeovers that do not occur at the children’s schools shall take place at the McDonald’s restaurant in (omitted), and if (omitted) is not open then at the McDonald’s restaurant on the corner of the (omitted) and (omitted).
The parties be and are hereby restrained by injunction from:
a)abusing, insulting, belittling, rebuking or otherwise denigrating the other, or members of the other’s family; and
b)discussing these proceedings or any of the issues contained therein
in the presence or hearing of the children or any of them and from permitting any other person to do so.
Neither party shall apply corporal punishment to any of the children.
The parents shall ensure that each child sleeps in his or her own bed when he or she is in their respective care.
The parents be and are hereby restrained from showering with any of the children who is over the age of eight years unless that child is ill or injured such that he/she is unable to shower him/herself.
Each party shall ensure that none of the children is left alone in the company of Mr F until that child attains the age of 16 years.
The mother shall immediately authorise any school in which the children or any of them are enrolled to provide to the father at his expense all school reports, photographs, newsletters, notices and the like that are usually provided to parents.
The father shall be at liberty to attend any school functions, extra-curricular activities or events to which parents and/or family are usually invited, subject only to the school’s discretion.
The mother shall notify the father of any sporting, social or other extra-curricular activities the children are scheduled to attend or participate in during their time with the father and the father shall ensure that the children attend and participate in such events.
The parties shall forthwith commence and maintain a communication book with respect to the children, which book shall travel with the children between the parties’ respective places of residence, and they shall write in it any information about the children which they believe is necessary for the other parent to know, such as any medications they need to take, or any social or sporting events which they are to attend/participate in during the other parent’s time with the children, and neither shall use the communication book for any other purpose.
Each of the parties shall notify the other as soon as practicable in the event that the children or any of them suffer a serious illness or injury while he/she is in their respective care, and shall authorise any medical practitioner who is treating the children or any of them to consult with the other party, although the mother shall have final responsibility for making decisions about their treatment.
If the children or any of them are hospitalised for any reason, the mother shall immediately inform the father and the father shall be permitted to visit the relevant child or the children on each day of his/their hospitalisation by agreement and failing agreement for a period of no more than 2 hours, the proposed times of such visits to be notified to the mother by text message the night before.
Each party shall keep the other informed of his/her residential address and contact details and shall notify the other of any change of address (including email address) and/or contact telephone number within 24 hours of such change.
The mother shall advise the father of any medication prescribed for the children or any of them, including the dosage prescribed, and shall ensure that such medication travels with the children, and the father shall ensure that the relevant child takes such medication according to its prescription and that it is returned to the mother at the conclusion of his time with that child.
The father shall continue to attend upon Dr P, or such other psychiatrist to whom he is referred, until that psychiatrist decides that it is either inappropriate or no longer necessary to continue his therapy, and the father shall provide to that psychiatrist copies of these Orders and Reasons, the psychiatric assessment of Dr G, and the Family Report prepared for the purposes of these proceedings.
The order of 29 October 2014 appointing the Independent Children’s Lawyer is hereby discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1535 of 2014

MR ELLIOTT

Applicant

And

MS JOHNSON

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting matter regarding Mr Elliott (“Mr Elliott” or “the father”), Ms Johnson (“Ms Johnson” or “the mother”), and their children W (“W”) born (omitted) 1999, X (“X”) born (omitted) 2002, Y (“Y”) born (omitted) 2004 and Z (“Z”) born (omitted) 2010 (collectively “the children”).
The parties also have an older daughter, V, who turned 18 a week before the trial.
The issues to be decided, as agreed between bar and bench on the first day of trial, are:
A.Whether allegations of family violence made by the mother against the father are supported by the evidence;
B.Whether either party suffers from a psychiatric or psychological condition that impairs their ability to care for the children;
C.Whether the parties can provide a safe environment for the children;
D.Whether either party engages in inappropriate behaviour with the children;
E.Whether the parties ought to have shared parental responsibility for the children or whether that responsibility ought to rest solely with the mother;
F.With whom the children should live; and
G.Whether, and under what circumstances, they should spend time with the other party.

Background

Mr Elliott was born in (country omitted) on (omitted) 1962 and is currently 53 years old. He migrated to Australia in 1985 as a refugee and settled in (omitted). Mr Elliott works as an (occupation omitted) in the (employer omitted).
Ms Johnson was born in Australia on (omitted) 1972 and is currently 43 years old.
The parties married and started living together in (omitted) 1994 and separated in July 2013.
As already stated, they have five children, four of whom are currently under the age of 18.
In (omitted) 2012, Ms Johnson detected a lump in her breast. She was subsequently diagnosed with breast cancer, with chemotherapy commencing in (omitted) 2012. Ms Johnson also underwent surgery for her cancer treatment in (omitted) 2013, and radiation therapy commenced in (omitted) 2013. The children were cared for by family, friends and Mr Elliott during this period.
The parties were divorced on 2 April 2015.
At the time of trial Ms Johnson’s cancer was in remission and she was engaged in home duties on a full time basis. She lives in the former family home with the children.
Mr Elliott lives in (omitted) and at the time of trial was unemployed apart from some casual (omitted) work.

Procedural History

Mr Elliott commenced these proceedings by filing an Initiating Application on 27 May 2014. He was represented at the time.
Ms Johnson filed a Response on 25 July 2014, and the matter came before me in the duty list at (omitted) on 30 July 2014. On this day, I made and Order for the parties to attend s.11F Counselling on 1 August 2014, and for them to return to Court on the same day.
On 1 August 2014, the parties attended 11F Counselling and I made Orders in terms of Consent Minutes signed by both the parties.
The matter proceeded to a Conciliation Conference where the parties were able to finalise property matters on 13 October 2014.
The matter returned before me on 29 October 2014, where it was set down for an Interim Hearing and for Trial and an Independent Children’s Lawyer was Ordered. The parties were again able to sign Minutes of Consent Orders regarding the children.
On 2 April 2015 the matter returned for the Interim Hearing and in light of issues that had arisen, I varied the Orders made 1 August 2014. Otherwise, the Orders remained in full force and effect. This was also the first occasion where Mr Elliott appeared before me unrepresented.
The Trial began on 2 July 2015 and concluded on 3 July 2015. The witnesses were Mr Elliott, Ms Johnson and Mr M (“Mr M”) who had prepared a Family Report. All were subject to cross-examination at Trial.
After submissions had been made on behalf of all three parties, I reserved my decision.

Issues and Evidence

A. Whether allegations of family violence made by the mother against the father are supported by the evidence

There are two salient reasons why it is important to establish whether family violence has occurred in the course of a relationship in family law proceedings.
The first relates to the question of who should bear parental responsibility for children, and the second relates to the factors to be taken into account when the court is deciding what orders might be in children’s best interests.
In this case, the mother makes allegations of verbal, emotional and physical abuse by the father during the marriage and of verbal and emotional abuse since the parties separated.
The father denies these allegations, and makes allegations of his own that the mother was verbally and emotionally abusive towards him both during and after the marriage.
I note that when he was under cross-examination at trial, the provisions of section 128 of the Evidence Act 1995 (Cth) were explained to Mr Elliott and he told the court that he understood what a certificate issued under that section would mean. Nevertheless he was clear that he did not wish the court to issue such a certificate.
Mr Elliott was also informed of his right to refuse to answer any questions that he thought might incriminate him.
In terms of verbal abuse, Ms Johnson deposes as follows[1]:
“5. That early on in the marriage I was subjected to both physical and verbal abuse. Initially the Husband would subject me to long periods of “silent treatment”. This in extreme times would include turning away when I would enter a room and try to speak with him. This was devastating and soul crushing. Things progressed to verbal abuse and the breaking of items in the home that were precious to me, including but not limited too (sic) many of our wedding photos.[…]
7. The arguments began getting worse and more personal in the last five years of the marriage. The abuse towards me escalated with my diagnosis of cancer. He would scream vile and abusive language at me, including but not limited to “you fucking bitch”, “you mother fucking cunt”, “you make me sick”, “I hate you”, “the children hate you”, “wake up you fucking bitch you’re not dying”. The husband would stand at the end of my bed yelling these things to me constantly. One example of this was in the front yard of our home on (omitted) 2013. On this occasion the husband screamed and yelled profanities at me in front of the child V, and Z (sic) and their friends M and K.
[1] Affidavit of the mother sworn and filed 25 July 2014 paragraphs 5 and 7
Under cross-examination at trial, Mr Elliott denied deliberately turning his back on Ms Johnson and also said that he had not broken anything during arguments.
It is the mother’s evidence that in mid to late 1998, Mr Elliott hit her during an argument and that as a result she left him for a period of several days.
When he was questioned about that incident at trial, Mr Elliott recalled that Ms Johnson had left for three days, taking V with her, but said that while he remembered the parties arguing at that time, “I never strike her or punched her or in any way hurt the wife”.
In relation to Ms Johnson’s allegations about him swearing at her, Mr Elliott at first denied having done so, but under further cross-examination conceded that he had called her “you bitch or something like that” on “one or two occasions”. He also admitted that he had raised his voice on occasion and that he had told Ms Johnson to “shut up” or “be quiet”. He adamantly denied the remainder of the allegations contained in paragraph 20 above.
Ms Johnson further says that during the period when she was receiving radiation treatment for her cancer in (omitted) 2013, Mr Elliott physically assaulted her, leaving a severe bruise on her left arm. It was that assault, Ms Johnson deposes, which precipitated the parties’ separation.
A photograph of that bruise was tendered at trial, and the mother’s General Practitioner, Dr G, swore in an Affidavit on 24 February 2015 deposing that he had seen the bruise, which Ms Johnson told him had been caused by an assault by Mr Elliott. Dr G was specific in his opinion that it had not been caused by Ms Johnson’s radiation treatment. He was not called to give evidence at trial.
In the Family Violence Safety Notice issued by Victoria Police on behalf of the mother on 6 October 2013, and in the Application and Summons for an Intervention Order filed on her behalf on 7 October 2013, the statement is made that while no threats of violence had been made against Ms Johnson while the police were present on 6 October, “on police arrival the respondent was observed to be yelling. The respondent presented as aggressive with erratic behaviour”.

In relation to the physical assault alleged to have occurred on 17 June 2013, the following exchange took place between counsel for the mother and Mr Elliott:
“Counsel: So that on the morning of 14 June 2013 did you punch the wife in her upper left arm using a closed fist?
Mr Elliott: No
Counsel: you deny, absolutely, assaulting her?
Mr Elliott: That’s right. Yes.
Counsel: Not punching her anywhere else. Your case is you never punched her at all?
Mr Elliott: That’s right. Exactly.”
Counsel then read the following passage from the affidavit of Dr G in relation to his consultation with the parties jointly on 21 June 2013, a week after the incident and about three weeks before Mr Elliott finally left the family home:
“They advised that their relationship was not going well with increasing arguments and verbal abuse and he had recently hit her. He confirmed that this had occurred.”
Mr Elliott said that he did not recall telling Dr G that he had hit Ms Johnson and that if Dr G was saying that he had done so, Dr G was lying.
I note again that Dr G was not called to give evidence at trial.
I had the opportunity of observing both parties in the witness box at trial.
The particularised and detailed evidence of the mother in relation to the verbal abuse she says Mr Elliott subjected her to throughout the marriage, and the corroborative evidence of Dr G in relation to the assault she says she suffered on 14 June 2013, together with the less than convincing and somewhat defensive denials of Mr Elliott in relation to these matters, lead me to prefer the evidence of Ms Johnson in relation to family violence having occurred where her evidence conflicts with the evidence of Mr Elliott.
I therefore find, on the balance of probabilities, that Mr Elliott engaged in verbal abuse and at times physical violence, against Ms Johnson during the marriage.

B. Whether either party suffers from a psychiatric or psychological condition that impairs their ability to care for the children

In her affidavit material, Ms Johnson deposes that Mr Elliott had harmed himself by cutting his body, she thought with a box cutter, and that he had told her on 13 September 2013 that he had done so because he wanted to understand what it would be like to have cancer. She described “many small cuts around his left nipple and a few around the right and also some on his stomach”.
She further deposes that the children had told her that Mr Elliott had shown them the cuts on his body. Mr Elliott denies that he had deliberately harmed himself or that he had shown the children any injuries resulting from self-harm.
In their interviews with Mr M for the purpose of section 11F counselling on 1 August 2014, V and W both described their father showing them cuts on his body, V describing the cuts as “deep” and W describing them as “cuts rather than scrapes and abrasions”.
Indeed, Mr M describes what V told him as follows:
“She said he knelt at the front door and lifted his top to reveal razor like cuts to down both sides of his ribs. She described these cuts as deep and said he blamed her and her mother for the separation and breakup of the family. She said her father was yelling as he showed these injuries, but was not crying.”
Mr Elliott told Mr M at that time that his injuries had been caused “from scratches and abrasions he received while removing tree roots from the mother’s front yard”.
In his interview with Mr B as part of a second section 11 F assessment process on 21 October 2014, Mr Elliott was unable “to account for his daughter V making statements that indicated she had seen cuts on his body (as described to the prior family consultant)”.
In his family report dated 16 March 2015 (“the Family Report”), Mr M states the following:
“Mr Elliott unexpectedly and without warning removed his shirt exposing his torso to “prove” there were no scars on his body caused by a knife. It was noted however that there were a number of slightly curved reddish coloured marks on either side of his chest which were approximately 5-7 mm wide and about 8-10 cm long, spaced 3 to 4 cm apart. He did not indicate what these marks were or how they had been caused.”
At trial Mr Elliott adamantly denied that he had ever cut himself intentionally or indeed that he had any cuts on his body. He acknowledged that he had had scratches on his body and asserted that that injury had not been “harsh”.
In light of the other evidence, I find his evidence on this issue to be unconvincing.
On the basis of the above evidence I find, on the balance of probabilities, that Mr Elliott did harm himself by cutting his body, and further that he showed the children the injuries resulting therefrom.
Ms Johnson also complains that Mr Elliott insists on showering with the children, and that he had continued to do so at a swimming pool after orders prohibiting both parties from showering with any of the children other than Z had been made in this court on 1 August 2014.
Mr Elliott concedes that he had showered with the children beyond the age when they would have been expected to be able to shower themselves, and that he had done so at the swimming pool after 1 August 2014.
Ms Johnson further alleged that until he was restrained by injunction from doing so, Mr Elliott had brought the children into contact with an uncle who had sexually abused him when he was a child in (country omitted), thus putting the children at risk. I will return to the evidence surrounding that allegation later in these Reasons.
Mr Elliott alleged that Ms Johnson had lied about his behaviour, that it was she who had been abusive, and that she was using those lies in an attempt to exclude him from the lives of his children.
Both parties underwent psychiatric examination by Dr G, whose report dated 14 October 2014 was annexed to an affidavit sworn 1 March 2015 and filed 5 March 2015. Dr G’s evidence was untested at trial, no party having required him to give evidence.
After setting out the parties’ history as described to him, salient points of his examination of the parties, and conversations he had had with Ms C, the parties’ marriage counsellor, and Dr P, the father’s treating psychiatrist, Dr G says the following under the heading “Conclusions”:
“1. If one takes at face value the version of events provided by Ms Johnson, there would appear to be insufficient evidence to suggest that ongoing care by her, of the children, is contraindicated for psychiatric reasons.
Psychiatric disorder would not appear to be a significant factor with regard to her ability to provide positive parenting, and have her children live with her.
Ms Johnson’s version of the events appears to be supported by information provided by her children, a psychologist who provided marital counselling, and her sister-in-law.
2. Conversely, as stated above, there would appear to be a significant possibility that Mr Elliott has been suffering from significant undiagnosed and untreated psychiatric illness, as well as significant problematic personality traits, a personality disorder, and/or substance use disorder which have impacted significantly upon his marriage and the care of his children.
There would appear to be significant concerns regarding Mr Elliott’s ability to provide positive parenting without episodic anger. Whilst there does not appear to have been significant issues with regard to physical abuse by Mr Elliott of his children, there would appear to be a possibility of emotional abuse, and of quite considerable significance.”
Dr G stated further that there was a risk that Mr Elliott might relapse in future into “impulsive, erratic, aggressive and damaging behaviours”, and that that risk related to both himself and his family.
In the final paragraph of his assessment, Dr G describes Mr Elliott as “a somewhat adept distorter of the truth”, saying that he appeared to have had “little motivation to be open with his treating psychiatrist, or with critical others”.
In his Family Report Mr M states as follows:
“18. Mr Elliott presented as a tall and kempt man who was intense, at times agitated, and displayed considerable anger at interview. He expressed the view that the best interests of the children have not been taken into account in preceding assessments or by the court, and implied that Ms Johnson had entered into a conspiracy with the “legal system” (possibly including this family consultant), Dr G (psychiatrist) and Dr G (his treating psychiatrist) (sic)[2] and Ms C “psychologist and marriage counsellor”. He made emphasis by pointing his finger vigorously. He advised that he is no longer legally represented in these proceedings. He also suggested that because of the (alleged) lies told about him the judge is not qualified to adjudicate the matter. He also refuted the conclusions of Dr G’s psychiatric report and suggested the doctor had colluded with Ms Johnson, Dr G and Ms C.
19. Mr Elliott talked extensively, volubly and unceasingly at the commencement of his interview. He dismissed out of hand all allegations that he was violent during his relationship with Ms Johnson and that he used “swear words” directed towards her, however he agreed they both yelled at each other and broke household items. He spoke with such emotion and rapidity that white spittle accumulated at the left corner of his mouth.”
[2] Dr G was in fact the parties’ general practitioner.
Mr M reports Mr Elliott as being extremely critical of Ms Johnson and dismissive of his sister Ms S, who had filed an affidavit in support of Ms Johnson.
Mr M makes no statements indicating any untoward or concerning behaviour displayed by Ms Johnson during interview.
On the basis of all the above evidence, I find that Mr Elliott suffers from psychiatric vulnerabilities which affect his ability to effectively parent the children. I will therefore make orders that he continue to attend either upon Dr P, or another psychiatrist of his choice, and that he provide to that psychiatrist copies of Dr G’s report and the Family Report prepared for these proceedings, as well as a copy of these Reasons.
I find that there is no evidence to show that Ms Johnson suffers from any psychiatric disability.

C. Whether the parties can provide a safe environment for the children

The children currently live with the mother in the former matrimonial home which she retained as part of the property settlement between the parties. There has been no suggestion that the children’s safety is at risk in her care.
However, several matters have been raised in relation to the children’s safety in their father’s care.
The evidence surrounding the question of whether the children are at risk in the presence of the father’s paternal uncle Mr F is, to say the least, equivocal.
The mother and the father’s sister depose that it was this uncle who molested Mr Elliott in (country omitted) when he was a child. They say that this same uncle now lives in Australia and that Mr Elliott has brought the children into contact with him. Ms Johnson in particular was concerned that the uncle might pose a risk to the children, and orders were made by consent on 1 August 2014 restraining Mr Elliott from bringing the children into contact with him.
It was Ms Johnson’s evidence that she feared that sexualised behaviours exhibited by the child Y had some connection to Mr Elliott’s experience of sexual abuse as a child, and she expressed concerns that the children might be at risk from Mr F, and by inference, from their father.
However, Mr Elliott has been spending unsupervised time with the children since orders were made on 1 August 2014 and there has been no suggestion of any sexually inappropriate behaviour on his (or anyone else’s) part since that time. Indeed it must be said that none of the children has made any disclosure of any such inappropriate behaviour to any authority or to their mother.
Mr Elliott acknowledges that he was sexually abused as a child in (country omitted) (although he had denied such abuse to Mr M during the section 11F interviews in August 2014), but at trial he insisted that the perpetrator had been his mother’s brother who has since died in (country omitted).
He gave evidence that Mr F is an honourable man but that if the court were to extend the order restraining him from bringing the children into contact with his uncle, he would have no problem with that order since his uncle never looked after the children in any case.
There is not enough evidence on either side of this issue for me to make a finding about whether the paternal uncle living in Australia is the same person who abused Mr Elliott as a child in (country omitted).
Orders are often made at interim hearings in this court for the protection of children until issues can be tested at trial. This is one of those cases, but after hearing what evidence there is about this matter I am not satisfied, on the balance of probabilities, that Mr F poses any risk to the children who are the subject of these proceedings. Certainly there has been no evidence adduced that he has attempted to harm the children in any way.
Nevertheless, Mr Elliott stated in evidence that he would accept an order restricting the children from coming into contact withMr F.
There is not enough evidence to provide the basis for a complete restriction on the children coming into contact with Mr F, but for an abundance of caution, I will make an order providing that the children not be left alone with him until each of them turns the age of 16, when they are more likely to be able to act in a self-protective manner.
Another issue raised in these proceedings in relation to the children’s safety is the quality of the father’s accommodation.
For some time after separation Mr Elliott was living in a caravan park in accommodation which was variously described as a caravan, a two-bedroom unit, or a cabin.
However by the time of trial he gave evidence that he was living in “a house with three-bedrooms, lounge room, kitchen, separate bathroom and toilet, separate toilet, laundry, storage at the back and fishpond. At the back it has got large size of the land, block of land”.
It was his evidence he sleeps in a double bed in one room and Z also sleeps in a separate bed in the same room when the children stay with him.
He said that Y and X sleep in single beds in the other two bedrooms, and that when W stays with him W sleeps on a separate bed which is set up for him in the lounge room.
Mr Elliott said that at times, when the children needed comfort, they would come into his bed with him, but that they usually all slept in their own beds.
I can find nothing inappropriate about any of those arrangements and indeed Ms Johnson herself told both Mr M and Mr B that the children were always “fine” when they returned from their visits with their father.
I therefore find that in terms of their physical safety, there is nothing for the court to be concerned about when the children are staying with their father.
The only concerns the court has relate to Mr Elliott’s psychiatric difficulties, and his view that their mother has lied to the court about his behaviour (and indeed that V and W have lied to Mr M about that behaviour).
Mr Elliott presents as a man who blames external forces for all his problems and who is unable to accept that he might bear some responsibility for the situation in which he finds himself.
The court is concerned that if those views persist, and he continues to express them to the children, then the children might become confused about whether they can trust what their father says.
In that sense, there is evidence before the court to indicate that the children’s emotional safety might be at some risk when they are in their father’s care.
Further, the mother raises questions about the possibility that the father abuses narcotics, and the possible impact that might have on his parenting ability.
It is her evidence that Mr Elliott told her that he had been addicted to opium while serving in the (country omitted) army, and that he had told her he had used opium during the marriage.
Mr Elliott’s evidence is that while he did use opium in (country omitted) as a way of coping with the trauma he had experienced, he had not used that drug since he came to Australia. It was his evidence that both parties had used cannabis on occasion during the marriage.
There is also some evidence that Mr Elliott told some of the professionals involved in this case that he had used opium since he came to Australia.
However, I formed the impression of the father throughout the trial that he is the kind of man who will say things that he thinks might get a reaction from his audience, and despite counsel’s earnest submissions to the contrary, I cannot find any actual evidence of Mr Elliott using narcotics since his arrival in Australia.
Certainly, Ms Johnson’s evidence is that she was not concerned during the marriage that Mr Elliott was abusing narcotics, and that she was surprised when he told her that he had been using opium during the marriage.
In those circumstances, I cannot find that the children are at risk from their father as a result of any drug use on his part.

D. Whether either party engages in inappropriate behaviour with the children

Mr Elliott has showered with his children all their lives. It is not suggested that he has abused them in any way while doing so.
However, it is likely that in most Australian families that behaviour would be considered odd and inappropriate whether or not there is any concrete evidence of abuse.
In this context, Mr M said in the family report that:
Mr Elliott has poor boundaries, little awareness of the impact of his own questionable (if not abusive) behaviours, and he lacks the capacity to appreciate the emotional and sexual development needs of the children and to sensitively and appropriately assist them to negotiate this maturation process. His apparent need to see the children naked is highly concerning and suggests some aberrant need on his part. He may benefit from attendance at a program designed to increase his understanding of sexual assault and the impact of such abuse on children and their normal development. He also needs to maintain appropriate boundaries with the children, to fully appreciate the need to identify risk and undertake protective behaviours to safeguard the children.
I note that when represented by counsel, Mr Elliott signed consent orders including an order that he not shower with any of the children save for assisting Z, who at the time of the order was not quite four years old.
What is clear from the evidence before the court is that both parties have engaged in inappropriate behaviour with the children in that the children have been exposed to the conflict between them, and that Mr Elliott in particular has sought to involve the children in that conflict.
Mr Elliott’s actions in showing the children the scars from his self-harming behaviour, and in telling V that it was her and her mother’s fault that the marriage had broken down, were highly inappropriate and indicate a lack of insight into and reflection about the impact of his behaviour on others.

E. Whether the parties ought to have shared parental responsibility for the children or whether that responsibility ought to rest solely with the mother

S.61DA of the Family Law Act 1975 (“the Act”), provides as follows:
(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.
Note:     The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(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.

I have already found that Mr Elliott engaged in family violence during the marriage. Therefore, pursuant to s.61DA(2)(b), the presumption of equal shared parental responsibility does not apply.
However, that is not the end of the matter. The court is still able to make an order for shared parental responsibility if it believes that such an order is in the children’s best interests.
The family consultant, Mr M, who prepared both the first section 11F memorandum and the full Family Report in these proceedings, recommended in the Family Report that parenting responsibility be shared between these parents.
However, when evidence about the parties’ lack of communication about parenting matters was put to him at trial, and in particular the evidence about the father ignoring text messages from the mother concerning parenting issues, he said the following:
“I’m perfectly happy to reconsider that recommendation. If it’s evident and if it is established that a parent refuses to communicate – simply will not communicate over matters concerning the children – particularly where they are significant issues, then I think parental responsibility needs to lie solely with one parent, and in this case, the mother.”
He further stated that if the allegations of family violence were to be proven, that would strengthen the case for sole parental responsibility being held by the mother.
Under questioning from the bench Mr M made the following helpful observation in relation to parental responsibility in general:
“Firstly it’s helpful for them (the parents) to understand what parental responsibility is and what it entitles them to be involved in. But it also requires a serious and mature approach so that difficult decisions can be discussed and deliberated about with a genuine desire to arrive at an outcome that is of mostly benefit to that child – and achieve a good outcome for that child. If someone engages in that process with a “well, take it or leave it” or “my way or the highway” kind of an attitude, then it’s going to end in grief and possibly a court may have to make a decision depending on what the issue is. It’s certainly not going to help in the co-parenting relationship, and it may well add distress for the child.”
Given the evidence of the father’s psychiatric difficulties, of his insistence that the mother and indeed every other witness who does not agree with him is lying in these proceedings, of his self-harming behaviours, his statements at trial that he does not listen to what Ms Johnson says, of his inability to agree with her about important issues in relation to the children, and the evidence of Mr M, I cannot find that it is in the best interests of these children for their parents to have equal shared parental responsibility for them.
There come times in every child’s life when particular decisions must be made in timely fashion, and in circumstances where these parties agree about very little it is likely that an order that they make joint decisions about major issues in relation to the children will only cause further conflict between them. I will therefore make an order that the mother have sole parental responsibility for the children.
That does not mean that the father is to be excluded from having input into those decisions, but merely that when it comes time for a decision to be made it will be the mother who makes that decision after consultation with the father.

F. With whom the children should live

The father seeks orders that the children spend time with him and the mother on an equal shared care, week about basis.
The mother seeks orders that the children live with her and spend alternate weekends and one evening in the off week with the father, as well as half school holidays and other special occasions.
At trial under cross-examination, Mr Elliott said that if the court were to decide that the children should live with him for less than half time, then he would not exercise any time with the children at all and would simply “walk away”. He was asked to confirm that position several times and he did so each time.
He said that he had made that decision because Ms Johnson had been behaving badly since separation and had been preventing him from seeing the children. He said that he would “rather not to put the children in that position to be embarrassed”.
In light of his other evidence about his close and loving relationship with the children, and the evidence of family consultant Mr M that the children love him and wish to spend more time with him, that decision is not in my view a child focused decision, and Mr Elliott’s evidence in that regard appeared to be somewhat self-serving.
As Mr M said in evidence at trial:
I’m not sure that the court should be blackmailed in terms of the orders that it makes by such a decision that he might take.
Mr M was clear that if the father were to decide not to see the children at all, that would be a very sad outcome for the children.
For the sake of completeness, I make it clear that I have not taken the father’s position as stated at trial into account when considering what orders to make for the children’s care arrangements.
Under cross-examination from the independent children’s lawyer at trial, Mr M said the following in relation to this issue:
“So given the level of acrimony – a lack of communication and so on that has been discussed previously, then I wouldn’t think for a moment that equal time would be a proposition here.”
And later:
“I think this isn’t a matter of ownership. It’s not a matter of fairness between the parents. It is a matter of what is in the children’s best interests and the children indicated to me that they’re perfectly happy living with their mother. They want to spend a little more time with their father but none of them said they want to spend equal time. I think in terms of their stability, their routine, consistency of day-to-day living – I think that my recommendation to the court would be that the children should remain living with the mother and spend time with their father on a regular basis, and there may be capacity for a little more time.”

The Law

The law in relation to parenting matters is set out in Part VII of the Family Law Act 1975 (“the Act”).
S.60B sets out the Objects and Principles underlying Part VII in the following terms:

Section 60B(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 and 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.

Section 60B(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).

Section 61DAA states that if the court makes an order for equal shared parental responsibility of a child or children, then it must consider whether it is in the children’s best interests for the parents to have equal shared care.
However, as I have declined to make an order for equal shared parental responsibility in this matter, I am not obliged to consider the question of equal shared care. I will nevertheless do so because of the importance of this issue in this case.
Section 60CA of the Act states that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC then sets out the considerations a court must take into account when deciding what orders might in children’s best interests, and I will address each of these in turn.
There are two primary considerations set out in s.60CC(2), they being:
(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.
Sub-section (2A) of s.60CC then states that in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
That is, the court must consider the need to protect children from physical or psychological harm as being more important than the benefit to them of a meaningful relationship with both parents.
The meaning of the term “meaningful relationship” has been discussed in many cases before this court and the Family Court of Australia since 2006, when this term was included in the Act.
In an oft-quoted passage from her judgment in Mazorski v Albright (2008) 37 FLR 518 Brown J said, at paragraph 26:
a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In Tait & Dinsmore (2007) FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders (2007) Fam CA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
That is, in the context of this case, if the relationship between the children and their father can be said to be important, significant, valuable, healthy, worthwhile and advantageous to the children, and Mr Elliott is able to “lead by example” in that relationship, then the benefit to the children in developing that relationship must be a primary consideration of the court in considering what is in his best interests.
The evidence about the relationship between Mr Elliott and his children is found in his own evidence as set out in his affidavits and in his oral evidence at trial, the information he provided to Dr G and Mr M as set out in their respective reports, Ms Johnson’s written and oral evidence, and by inference from the Family Violence Safety Notice issued by the police on 6 October 2013.
That evidence reveals a man who clearly loves his children dearly, and who sees his relationships with them as the most important relationships in his life.
All the children told Mr M that they wish to spend time with their father, albeit that W wishes to do so on his own terms.
Their relationships with Mr Elliott are clearly important, significant, valuable and worthwhile to the children.
The questions in this context are whether those relationships are healthy and advantageous to the children, and whether Mr Elliott is able to “lead by example” in relation to his parenting of them.
I have found that Mr Elliott has some psychiatric vulnerabilities which affect his ability to parent the children in an entirely healthy psychological manner. That finding leads me to have grave concerns about his ability to “lead by example” and indeed about the level of advantage to the children in spending extended amounts of time with him.
S60CC(2(b) states that I must consider the need to protect the children from harm from neglect, abuse or being exposed to family violence.
I have discussed the issue of family violence earlier in these Reasons and note that I have made findings that Mr Elliott was verbally and at times physically abusive towards the mother of his children during the marriage, and that he has been emotionally and verbally abusive towards her since the date of separation.
Moreover, I have made findings that Mr Elliott has perpetrated quite serious emotional and psychological abuse against his children after the breakdown of the marriage by showing them the scars resulting from his attempts at self harm and by attempting to involve them in the conflict between him and Ms Johnson.
I have also found that it is more probable than not that both parties have discussed their feelings and views about the other parent in the presence or hearing of the children.
I am therefore bound to take the need to protect the children from family violence as found in paragraphs 20 to 40 of these Reasons as my paramount consideration.
S.60CC(3) then sets out 14 “additional considerations” to which I must have regard in deciding what orders to make in the children’s best interests, and again, I will consider each one in turn. Those 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
W has made very clear his view that he would like to decide when and under what circumstances he spends time with his father. At the time of trial W was 16 years old and as such his views carry considerable weight.
Both X, aged 12½ at the time of trial, and Y, aged 9½, expressed the view that they would like to spend a little more time with their father when interviewed by Mr M. While their views do not carry the same weight as their older brother’s, I do place some significance on them.
Z, being only 4½ at the time of the family report interviews, was not interviewed and thus her views are unknown. However even if they were known, her age means that they would be of little weight.
(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)
What is clear in this case is that both parents dearly love all the children, and that all the children love both their parents.
However the court does have some concerns about the nature of the relationship between the children and their father.
His insistence on bathing them until they are well beyond the age at which they would be expected to be able to bathe themselves gives rise to a concern not so much in relation to inappropriateness as to a sense of proprietary interest in the children on his part.
Mr Elliott’s sense of identity appears to be largely bound up in his role as father, the risk of which is that he may see the children as responsible for his emotional well-being, rather than him taking responsibility to ensure that their emotional needs are met.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child
The evidence before the court shows that both parties have been involved in making decisions about major long-term issues in relation to the children, although Ms Johnson complains that Mr Elliott sometimes refuses to assist in carrying out processes in relation to those issues unless he personally agrees with the decision to be made.
Examples of this are found in issues that arose around W’s need for orthodontic treatment where the husband refused to help pay for the treatment saying that it “could wait”, and where he insisted that V, who was then 17, would need to ask him herself if she wanted him to pay for a ski trip.
Both parents have taken every opportunity to spend time and communicate with the children. Indeed, it has been Mr A’s attempts to spend more time with the children that led to the institution of these proceedings.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
During the marriage both parents maintained the children financially until Ms Johnson’s cancer diagnosis in 2012.
Ms Johnson has looked after the children all their lives and since the parties’ separation has maintained them financially either from her own earnings or from Centrelink benefits.
Mr Elliott appears to have paid child support since separation pursuant to an assessment made by the Department of Human Services (Child Support). At the time of trial he was not working and was paying the minimum amount of about $30 per month for all four children.
(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
If the court were to make orders as sought by Mr Elliott - that is orders that the children live week about with each parent - that would be a significant change to their current circumstances.
They would be separated from each parent each alternate week in circumstances where they have always lived with their mother.
In contrast, they have lived with their mother and spent time with their father for varying periods since the date of separation, and since August 2014 they have spent overnight time with him.
A continuation of that regime would not constitute a change in their circumstances.
(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
The parties live in adjoining suburbs and there is neither practical difficulty nor particular expense involved in the children moving between their two homes.
(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
There is no evidence to suggest that either party lacks capacity to provide for the material or intellectual needs of the children.
However, on the basis of the evidence set out in paragraphs 20 to 100 above, the court has some concerns about both parties’ ability to meet their children’s emotional needs, albeit that those concerns are intensified in relation to Mr Elliott’s behaviour.
(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
Mr Elliott’s evidence, gleaned from his affidavit material, and his oral evidence and behaviour at court, reveals a man of some immaturity in that he appears to be more focused on his own needs than those of his children.
The most salient example of this is his insistence that if the court were not to make the orders he sought, he would cut off all contact with the children.

Dr G’s opinion is that he has not yet learned to control his angry impulses, even in the presence of his children, which is another indication of his lack of maturity.
Mr Elliott's (nationality omitted) heritage will become more important to the children as they mature and it is vital that they have access to as much information about their father’s language and culture as they need in order to develop their own senses of identity.
Mr Elliott has complained that Ms Johnson has abused him using racial and ethnic epithets, which, if true, would cause the court to have considerable concern in relation to her ability to promote the children’s paternal heritage and culture.
(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
This factor is not relevant in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It is not in doubt in these proceedings that both these parents love the children dearly and want only what is best for them.
It would appear however that the children have become involved in the conflict between their parents as a result of both parties speaking to them about that conflict. That does not reflect well on either party in terms of their understanding of or their ability to comply with their responsibilities as the children’s parents.
(j) any family violence involving the child or a member of the child’s family
I have already discussed and made findings in relation to family violence in paragraphs 20 to 40 of these Reasons and will not repeat them here save to say that the discussion therein is particularly applicable in the context of determining the children’s best interests.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
On 6 October 2013 Mr Elliott arrived at the former matrimonial home where the mother and the children live, and unloaded his possessions from his car saying that he wished to move back into the house. The evidence of the mother, and the notes made by the police officers who attended on that day, persuade me that Mr Elliott was screaming and yelling and behaving in an aggressive and hostile manner at that time.
Ms Johnson, who had been concerned about various texts received from Mr Elliott on that day and whose evidence is that she feared for the safety of herself and the children at that time, called the police.
The police attended and issued a Family Violence Safety Notice which named the mother and all five children as protected persons, that Notice excluding Mr Elliott from the premises.
On the following day an Interim Intervention Order was made in the Dandenong Magistrates Court again naming the mother and all five children as persons protected by that Order. The Applicant named on that order was a police officer. The Interim Order was made by consent without any admissions being made to the allegations contained in the Application.
A Final Intervention Order was made against Mr Elliott on 3 April 2014, again by consent without admissions, that Order to last for 12 months.
Ms Johnson applied to extend that Order, and an interim extension was granted, but that application had not been finalised at the time of trial and the court is unaware of its outcome.
I note that the allegations made in the Application for that Order were never tested in the Magistrates Court of Victoria as Mr Elliott consented to the order being made without making any admissions in relation to those allegations.
I make no further comment about that Intervention Order, save to note that Mr Elliott was charged with nine breaches of it because of various text messages he had sent to Ms Johnson, as a result of which he was ordered to enter into a good behaviour bond for 12 months and to attend various education and behavioural change programs which, to his credit, he completed.
(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
The orders I propose to make in these proceedings are not those sought by the father and will include an order that the children live with their mother. Mr Elliott indicated to the court at trial that in those circumstances he would not pursue his relationship with his children at all. It is to be hoped that he has reconsidered that position and that he will engage with his children pursuant to these orders for both his and their benefit.
If he does so, there is little likelihood that further proceedings will be necessary.
(m) any other fact or circumstance that the court thinks is relevant.
These children have lived with their mother all their lives. Apart from the understandable distress she suffered as a result of her cancer diagnosis and treatment, and the family violence perpetrated against her by the father, and the inevitable impact of that distress upon the children, there is no suggestion that she has not cared for them to the best of her ability, or that their care has been neglected in any way.
The father has used various forms of family violence against the mother, both during the marriage and since separation. He appears to have little understanding or insight into the impact of that behaviour despite having attended several courses which might have been expected to provide such insight and understanding.
That lack of insight, together with his psychiatric vulnerabilities and fanciful beliefs about the wife having entered into a conspiracy with most of the witnesses and professionals involved in these proceedings, lead the court to conclude that it is not in the children’s best interests for them to live with him and their mother on an equal shared care basis.
For all the reasons set out above, and accepting the evidence of Mr M, I will therefore make an order that the children live with the mother.

G. Whether, and under what circumstances, they should spend time with the other party

The children have been spending overnight time with their father since August 2014. There is no suggestion that they have not enjoyed that time, or that it should not continue despite the concerns of their mother and this court.
The three older children have all indicated that they would like to spend more time with their father and in those circumstances, and again in spite of the concerns held by the court, I find that it is in their best interests that they do so.
I will therefore make orders that provide for the children to spend time with their father each alternate weekend during school terms from after school on Friday to the commencement of school on Monday, as well as progressive school holiday time until that time is equally shared between the parents. I note that those orders will be consistent with those sought by Ms Johnson.
I will also make orders that the children spend Fathers’ Day and parts of Easter and special occasions like birthdays with Mr Elliott, and I will leave open the possibility of the children spending time with him at other times by agreement between the parties.

Conclusion

V, W, X, Y and Z have been through much in the past three or four years. Their parents’ deteriorating relationship, their mother’s diagnosis of cancer and her subsequent quite traumatic treatment, their parents’ separation and the mutual accusations made by each parent against the other, have clearly been extremely distressing for them, and particularly for the older children.
Despite all of those experiences, the children have been able to maintain positive relationships with both parents, which is a credit to both their resilience and to their parents.
I have not been able to make findings of fact on every issue brought before the court. Some of the evidence has been contradictory or unclear, and that may be partly a result of English being Mr Elliott’s third language, although much of the lack of clarity results from the parties’ honestly held but contradictory beliefs about facts and situations that pertained in the past.
What is clear however is that Mr Elliott is a very troubled man. His early life experiences of sexual abuse, and the consequences of the (omitted) revolution in (country omitted) which led to him coming to this country as a refugee, have clearly had a profound impact on his emotional and psychiatric well-being. His history shows that he is a man who uses verbal abuse, aggression and sometimes physical violence to cope with intense feelings.
He has been left with feelings of anger and persecution which lead him to believe that everything Ms Johnson says about him, including her cogent and persuasive evidence about the family violence he perpetrated against her, are lies designed to keep him from his children, who he clearly loves very dearly.
His demeanour at trial was of a man who wished to be vindicated in his beliefs and who was quite persistent in his attempts to criticise the mother’s behaviour while taking little or no responsibility for his own. He was at times erratic and almost incoherent, both while giving evidence in the witness box and while at the bar table. Even accounting for his difficulties with the language, his behaviour and inability to focus on the particular issues at hand caused the court to have some concern about his emotional stability.
Mr Elliott has been receiving psychiatric treatment, and it is to be hoped that continuing treatment might bring him some deeper understanding of his past which might provide him some peace of mind upon which to build a positive future for himself and all the parties’ children.

I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 18 January 2016

[2016] FCCA 63

18 January 2016

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