Field and Bowers

FAMILY COURT OF AUSTRALIA

FIELD & BOWERS

[2012] FamCA 189

FAMILY LAW – CHILDREN - Parenting dispute - husband alleges children at risk in the care of the wife because of sexual activities and seeks orders that any time be supervised - wife denies any risk in her care and claims children are at risk in husband’s care because of his abuse - finding that husband is the problem which is supported by expert evidence - children removed from the husband’s care.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Mazorski and Albright (2008) 37 Fam LR 518

APPLICANT:

Ms Field

RESPONDENT:

Mr Bowers

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

TVC

939

2009

DATE DELIVERED:

2 April 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Townsville

JUDGMENT OF:

Cronin J

HEARING DATE:

19, 20, 21 & 22 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Collins

SOLICITOR FOR THE APPLICANT:

Lee Turnbull & Co

COUNSEL FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fellows

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Purcell Taylor Lawyers

Orders

That all extant parenting orders are discharged.
That the children T born … October 2005 and C born … December 2008 live with the wife.
That subject to and save for any applications for costs, forthwith, the Independent Children’s Lawyer is discharged from these proceedings.
That the husband not spend time with or communicate with the children except by written arrangement with the wife.
That the wife have sole parental responsibility for the children.
That the husband and the wife forthwith do all acts and things and sign all documents necessary to have the Queensland Police release the SD cards to the wife and to the extent that the husband fails to immediately comply with this order, pursuant to s 106A of the Family Law Act 1975 (Cth), the wife is authorised to sign any such document that may be required by Queensland Police in the name of the husband and for the purposes of establishing her entitlement to do so, this order shall be sufficient proof.
That the video film footage currently held in the safe custody of the Registrar of the Family Court of Australia at Townsville be released to the wife and her production of this order shall be sufficient warrant for the Registrar to make the necessary release.
That the husband forthwith provide all copies of the video film footage referred to in paragraph 7 to the wife.
That save as to issues of costs, all outstanding applications are dismissed.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 4 May 2011 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 18 May 2011 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all subpoenaed material may be forthwith returned to the person who provided the documents pursuant to any subpoenae and exhibits shall be returned to the parties who attended unless a Notice of Appeal against these orders is filed by 3 May 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Field & Bowers 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 MELBOURNE

FILE NUMBER: TVC 939 of 2009

Ms Field

Applicant

And

Mr Bowers

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The parenting dispute between Mr Bowers (“the husband”) and Ms Field (“the wife”) has been ongoing since their separation in January 2010. There is no semblance of civility or communication between them and no prospect of that changing in the future.
Whilst I accept the wife has had difficulties in her relationship with the husband and there have been some questionable decisions she made, I could not fault her recent parenting or her attempts to get her life in order. I have no similar confidence in the husband.
Their two children are a boy T aged six and a girl C aged 3. Until this trial, they were largely shared between the parties.
This case had been conducted throughout 2010-2011 in the Federal Magistrates Court of Australia and in 2012 in this Court on the issue of whether or not there was an unacceptable risk of harm to the children if they were in the wife’s care. That was the way the husband’s case was prepared and presented to this Court. I find there is no such risk for the children in the wife’s care.
The evidence focussed more on the issue of the husband’s behaviour. This case was really about the risk of emotional harm to the children in the care of the husband. I find there is a significant risk of that harm and that any time between the husband and the children warrants careful supervision in the future.
In his closing address, the husband said that if I was to make an order requiring him to be supervised with his children, he would not attend. His final position was that if I was not prepared to give him the children and allow him to move with them almost 1000 kilometres away from their present location, along with the restricted time with the wife, he would not see them. He said that he was not so much leaving his children as being pushed out of their lives. Sadly, I disagree but I could not change his view.
Midway through the second of three days of this hearing, and upon an oral application of the Independent Children’s Lawyer, I placed T and C with the wife. Had that application not been made, I would certainly have removed them upon the conclusion of the hearing. I made orders during the trial and indicated I would give reasons as soon as practicable but the basis was my concern for the emotional health of the children. It is now time to turn attention to the permanent orders for the welfare of these children.

The applications before the Court

The wife’s application sought orders that T and C live with her and that their time with the husband be limited to whatever could be organised under supervision at a contact centre.
The husband’s response sought orders of a similar nature but that it be the wife whose time should be supervised by a contact centre ultimately building up to unsupervised time in the future.
The Independent Children’s Lawyer’s position was largely to support the wife and with that position, I mostly agree.

Preliminary matters

Before dealing with the background, some preliminary matters about the conduct of the proceedings need to be noted.
First, the documents relied upon by each party are set out in the annexed schedule to these reasons.
Secondly, the wife and Independent Children’s Lawyer were represented by counsel but the husband had no legal representation. It is not the function of the Court or its staff to give legal advice to an unrepresented litigant. It is the function of a judge in such a trial to assist with procedural matters to ensure that an unrepresented litigant is not disadvantaged. It is also the responsibility of a judge to be vigilant about the evidentiary process to ensure there is no confusion about what evidence is relied upon and to clarify for an unrepresented litigant what evidence is being put forward by all parties. Having said that, the Court should be vigilant to ensure that a case of a disorganised litigant who has material which on its face is unintelligible, is not disadvantaged. To some extent, the Court has to wade through the disorganised papers and irrelevant statements in an affidavit to be sure that the case is understood. Be that as it may, even the Court cannot make out that litigant’s case. In this instance, I have endeavoured to do all of those things as the transcript will show.
Thirdly, the husband filed and served two Notices to Admit to which, no response was made by the wife. Although the husband wanted me to draw an adverse conclusion or inference from the wife’s lack of response, an examination of them will show that the majority of matters were not particularly relevant to the facts in issue but rather peripheral to what was in dispute. Rule 11.07 of the Family Law Rules 2004 permits parties to request of one another admissions about facts and documents in dispute. By rule 11.08, the lack of response deems the non-responsive party to have admitted the fact as being true. Rule 11.09 provides for a withdrawal of an admission. The purpose of the provision is to save costs and allow the parties to focus on what is really in issue. The admission or lack of it does not necessarily mean that the Court accepts the evidence to be true or admissible even though the rule might provide for it to be so deemed. There was no doubt in this case that the request of the husband related to some facts that were not relevant because they were simply assertions. What the husband was asserting was before the Court in evidentiary form anyway. The husband had every opportunity to cross-examine on that material. I ruled that the Notices were irrelevant.
Fourthly, the husband caused to be issued and served a subpoena to produce documents and to give evidence upon a Mr P who it was said, was the wife’s partner. The unusual step requested by the husband was to simply allow Mr P to be orally examined. As it turned out, Mr P produced two affidavits in response to the subpoena. I permitted the husband to treat him as an adverse witness because as became apparent, Mr P had played a very significant trick on the husband.
Fifthly, the husband applied to exclude evidence of a psychologist who was the single expert witness concerning the needs of the children. The basis behind the husband’s application was that he said that the single expert witness had a conviction in 2005 for drug-related offences. However, if the assertion of the husband was true, it did not sufficiently excite the psychologist’s professional body to exclude him from practising his profession. I indicated the husband could cross-examine about the issue but as that was the only basis of the objection, the application to exclude the evidence was refused. The husband did not raise the issue again.
Sixthly, the husband had referred in his affidavit to having possession of a video film from which, it was common ground, two scenes of T and C playing naked appeared. That footage was followed by the wife in scenes which the husband described as “debauchery”. Despite the dissemination of this video such that it had been viewed at least by the Independent Children’s Lawyer, the wife’s legal practitioner, the psychologist to whom I have just referred and a federal magistrate, all of whom expressed views about it, when pressed, the husband said its probative value was only to show that the material concerning the children had been “hawked about” by the wife or that she had put it into a position where it could be so “hawked about”. I understood the latter complaint to be one relating to negligent handling of the video by the wife. Absent any evidence of such “hawking” and I now find there is none, the evidence had no probative value. I gave the husband the opportunity to point out where that evidence was but he failed to elicit it. He had the opportunity to put to Mr P that this material was “hawked about” but he did not do so. Consequently, I excluded it and still do, from any evidentiary value in these proceedings.
Seventhly, the husband began the hearing by indicating his concern about counsel for the Independent Children’s Lawyer appearing because he had an account from his former solicitor showing some consultation had occurred between that solicitor and counsel. After some inquiries, it was accepted by the husband (perhaps begrudgingly) but certainly accepted by me, there was no conflict of duty that had or could arise.
Eighthly, the husband said from the bar table that he had evidence of transcripts of telephone conversations which showed the wife in a poor light. This was a reference to the fact that the wife led evidence of recordings of conversations with the husband and he wanted to show that all was not what it seemed. No documents were presented and when I asked him in re-examination whether he was presenting any further material, he declined to present such documents.
Ninthly, the husband had attached to his affidavit a number of statements from people including his parents (both in the form of affidavit and statement) because he said that was how he was told to do it. Having explained the inappropriateness of that course, the husband said he would not rely upon them. However, on the second day of the hearing, he said he was calling his mother and his sister as witnesses. He did call his sister (and I shall refer to her further in these reasons) but he then declined to call his mother.
Tenthly, at the commencement of the hearing, the husband’s mother and father had filed and served an application in a case and a very brief affidavit simply seeking leave to join proceedings. No-one knew what their application for orders would say but the paternal grandmother told me that she wanted contact with T and C regardless of what the husband wanted. In other words, she wanted time outside of any orders he was seeking. The application was opposed by both the Independent Children’s Lawyer and the wife because of its lateness. When it was pointed out that the late application and complete absence of the grandparents until then including in relation to attending upon the single expert witness, a delay in the trial might occur, they then withdrew their applications.
Finally, the husband’s cross-examination of the wife was very short and unstructured. He implied that persevering was pointless. He was subsequently cross-examined about his view that the trial was being “unfairly” conducted. He was given every opportunity to explain what the problem was. I understand that his view of what was evidence was not necessarily consistent with ss 55 and 56 of the Evidence Act 1995 (Cth). He had been shown that by the Independent Children’s Lawyer’s counsel. The wife was cross-examined by counsel for the Independent Children’s Lawyer and I am satisfied that her evidence was properly tested to the extent that it could be. To an extent, the shortness of the husband’s cross-examination of the wife was as a result of his frustration that no-one saw the issues that troubled him about the wife and the children. That however became clearer when the husband was cross-examined by counsel for the Independent Children’s Lawyer. I am satisfied that the husband was not disadvantaged by being without legal representation and his case was fully put before the Court by reference to documents.

Background

The husband is a 42 year old technician who currently lives with his parents but who made clear in final address, he is leaving the area and travelling to a capital city. He said that he intended to pursue his career.
The wife is 36 years of age and currently unemployed. She suggested she had managerial experience and wanted to work in small business but has struggled to obtain employment because of the husband’s behaviour.
The parties commenced their relationship in 2000, married in 2005 and the destructive process of separation began in 2009 when C was only 6 months old. I accept the evidence of a clinical psychologist Dr R that subsequent to C’s birth, the wife suffered post-natal depression. Thus, the breakdown of the relationship was beginning immediately after C’s birth.
I have referred to the parties as husband and wife throughout these reasons for my convenience notwithstanding that they referred to each other as mother and father as did counsel.

The separation

Nothing in the evidence suggests that the parties’ relationship was ever a happy one. By the middle of 2009, the parties’ business which, for unexplained reasons, was in the wife’s name only, was in financial trouble. The wife ultimately went into bankruptcy. The second of the two children was only months old whilst the wife was suffering from post-natal depression when she began to get treatment. In September 2009, the husband assaulted the wife causing the attendance of police and an ambulance at their home and resulting in the wife being hospitalised. That particular dispute culminated in the wife making application for a domestic violence order as well as commencing family law proceedings but she did not continue with those proceedings.
Around September 2009, a partial separation occurred and the parties lived some 25 kilometres apart. T and C were also separated with T going with the husband and C remaining with the wife. The parties however spent some time together but that also did not last long. The partial separation of the siblings was not explained nor was it an issue throughout the proceedings but it was noticeable that the husband’s focus was on T more so than C.

The legal issue

The process which was explained to the husband and I have followed to determine this case is now set out.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the framework for determining any parenting dispute.
Section 61DA(1) provides that the Court must apply a presumption that it is in the best interests of children for their parents to have equal shared parental responsibility.
Parental responsibility is defined as all of the duties, powers, responsibilities and authority which, by law, parents have in relation to their children (s 61B). That is a very significant role in the lives of children. To remove it means removing not only the responsibility of a parent to guide the future development of a child but also robbing the child of having that parent provide many of the attributes that each adult has as an individual.
Relevantly, the presumption of sharing parental responsibility may be rebutted by evidence that it is not in the child’s best interests for the parents to have that responsibility (s 61DA(4)). The presumption must be rebutted by evidence of family violence.
Any decision relating to parenting issues must be made with the child’s best interests as the paramount consideration (s 60CA).
Section 60B contains a list of objects and principles laid out by the parliament to provide a constant reminder when determining a parenting dispute, of its, and the community aspirations and ideals, for children and therefore, every decision about what is in the best interests of the child must keep a focus on those fundamentals.
The principles include that it is deemed by the law that children should have the benefit of both parents having a meaningful involvement in their lives providing it is consistent with their best interests. At the same time, children must be protected from physical or psychological harm or from being exposed to abuse, neglect or family violence.
Ideally, children should be parented in a way that assists them to achieve their full potential. That too is an object of the law. To achieve that aim, it is expected that parents will carry out their parental responsibilities and duties in relation to the care and welfare of their children. Clearly there are cases where parents cannot or will not undertake that responsibility and duty.
Section 60CC(1) requires a court to consider a series of factors set out in s 60CC(2) and (3) to determine what is in a child’s best interests. They are mandatory considerations.

Section 60CC(2) outlines the two primary considerations. The first is that a child should have the benefit of a meaningful relationship with both parents.
In Mazorski and Albright (2008) 37 Fam LR 518, Brown J described “meaningful” as synonymous with “significant” which means “important” or “of consequence”. I agree entirely with that definition. Children are therefore entitled to have the benefit of a significant and important contribution from their parents as part of their development.
For reasons that follow, whilst the husband continues to behave the way he does, these children can never have the benefit of a meaningful relationship with their mother. It is also questionable whether they can have a meaningful relationship with their father if he treats them emotionally in a way that I shall describe. I find that the husband is focussed on destroying the relationship between the wife and the children.
Although the Act does not distinguish between the various legislative factors, children cannot enjoy the benefit of a meaningful relationship if they are exposed to physical or psychological harm by being subjected to or exposed to, abuse, neglect or family violence. For the reasons that follow, the exposure of these children to the abuse of their mother must stop. On the evidence, the behaviour of T towards C along with the evidence of a psychologist in this case showed that T was affected by parental behaviour accepting violence as the norm. So too, the evidence was that C accepted that aggression as the norm. As the evidence shows, the husband has a lot to answer for that conduct.
As will be seen from the findings that follow, a consideration of the factors in s 60CC(3) justifies a number of conclusions. They are:
·    Contrary to the husband’s apparent attitude, the children are too young to have a view about what is good for them;
·    Both parents love these children but the husband continues to endeavour to damage their relationship with their mother. I do not accept that he has the intention to change and I have serious concerns about his capacity to do so. I do not have similar concerns about the wife;
·    The absence of the husband from the lives of these children after such a significant role in terms of time, will be challenging for the wife but I am satisfied that she has not only the capacity to cope but also the understanding of the needs of the children to be able to explain their father’s absence without it adversely affecting them. Just what future role the husband and also his parents will have in the lives of T and C is a matter that will no doubt have to be contemplated by the wife in the future;
·    For reasons which will be obvious, I find the husband’s attitude to parenting irresponsible. The husband has conceded that his behaviour has been appalling and very reluctantly acknowledged that he would have to change towards the wife. The children witnessed his conduct. When offered a prospect of supervised time with the children, which was the solution of the expert witness, the husband said he will walk away;
·    There are significant family violence issues in this case and bearing in mind the definition of family violence includes conduct actual or threatened, towards a person which causes them to be apprehensive about their personal safety, I am satisfied that the wife is apprehensive about being anywhere near the husband or having to communicate with him.
Leaving aside a determination about the rebuttal of the presumption of equal shared parental responsibility based on best interests, both parents have made applications for sole parental responsibility and agree that there is no prospect of them communicating with each other effectively on any issue. The husband made clear that he had no trust or faith in the wife to have made any progress in her parenting skills and her personal life as he saw it. He said that he could understand why she had no faith or trust in him.
It is a requirement under s 65DAC that parties consult with one another about long term issues and make a genuine effort to come to a joint decision about those long term issues that not only affect their children but are integral to their development. That is not possible here.
For the reasons that follow, I am satisfied that it is appropriate to find that the presumption of equal shared parental responsibility is rebutted because it is not in the best interests of the children for their parents to have that responsibility.
I then turn to the matters that support the conclusions to which I have just referred.

Credit of the parties

As I explained to the husband, the assessment of the truthfulness of a witness can be a significant factor when the issue at hand has to be determined on the balance of probabilities. I am conscious that care that must be taken where a litigant is not represented by a lawyer, has limited literary skills, is in an environment which is foreign and is opposed to experienced counsel. Here in any event, the husband was not a good witness. He was described by the single expert witness psychologist as an intelligent man. I certainly found that he understood what I was talking about. At the bar table, he was confident albeit disorganised. The reading of his affidavit material suggested that he had thought about what he wanted to say and do and that his case against the wife was clear. His cross-examination of the wife was initially strident but he was frustrated by interruptions and objections as to the relevance of material.
The husband’s presentation in the witness box under cross-examination was quite the opposite of his written material. For much of the time, his head was in his hands and he was despondent and defensive. I adjourned on at least two occasions to give him an opportunity to compose himself and to allow his tears to subside. He acknowledged in cross-examination by counsel for the Independent Children’s Lawyer that he felt that he had lost the case because no-one wanted to listen to the evidence that he had amassed. He consistently pointed to his concerns about the wife’s behaviour.
The husband and the wife have to parent T and C in the future and normally that would require a modicum of respect for and communication between, each other. The husband’s evidence in the witness box made clear he has no respect for the wife as a parent.
It is sad to have to make strong adverse findings against any parent but this is an example where those findings about behaviour reflect parenting capacity and responsibility.
Finally, I do not accept the husband was a truthful witness. The following are examples of why my finding is so.
At the end of the first day of the hearing, a tape recording was played to the court. It was the wife’s evidence that it was Christmas Day 2011. The husband was asked whether it was his voice and he equivocated. He said he could not agree “entirely” that it was him on the recording but then again, he said he would not deny it. He said he could not recall whether or not it was Christmas Day. When pressed, he said “I’ll say it is”.
It was not to the point that the recording was clearly his voice. That was obvious but the husband could not escape the fact that the day was unique and only occurred a few weeks before. I find he lied about it because he knew that what he had done put him in a poor light as a parent. That is, the court orders were silent on the issue of telephone contact between the wife and the children on Christmas Day (presumably because they had simply been overlooked) and accordingly, the husband chose to decline the children the opportunity to speak to their mother when she telephoned. His rejection was blunt; he hung up on her. His initial denial and then prevarication about the incident was indicative of his consideration for the children let alone the wife for Christmas.
The second relevant incident was that the wife had sought employment at a shop at which the husband’s sister attended. She told the proprietor some things about the wife that sufficiently ended the wife’s prospects there. There was little dispute about the sister’s visit but the husband maintained that it was not on his instructions and that the words his sister had used had not been his. His sister said otherwise in evidence. She maintained the words came out of his mouth. That incident did the husband no credit nor his sister either. The husband was not truthful about the incident.
The third relevant incident was that when the husband filed an application at the end of 2011 to suspend the wife’s existing time under orders with the children, he refused to return them under those extant orders. His evidence was that the registrar had sealed the application and no-one had told him that he could not keep the children particularly as he was making serious allegations of sexual misconduct against the wife. He said suspension of the orders had occurred previously when he had filed such an application. When tested about all of that, the husband maintained an apologetic position saying that he may have misunderstood the law. The absurdity of his position was pointed out that if the filing of an application entitled the applicant to self-help, the wife could have countered his application by doing exactly the same. As I pointed out, the husband was described as an intelligent man and was adequately able to explain himself but I do not accept that he was honest about his understanding of the issuing of court process. I am quite satisfied he took an arrogant stance and took the opportunity to overhold the children.

The husband’s conduct

The husband’s conduct towards the wife after separation reflected poorly on him as a parent because it was indicative of what the children will have as a role model in the future. The wife taped various telephone conversations and quite bizarrely, the husband knew that it was being done. The husband complained in court that previous courts had criticised the wife for taping conversations but his concerns about the legality of her conduct paled into insignificance by comparison to his recorded conduct. Despite knowing (and at various times on the recordings acknowledging) that she was recording , the husband said or did the following:
·    He called her a “fucking retard”;
·    Told her in T’s presence to “get fucked”;
·    Described her in a callous manner as “Ms Promiscuous”;
·    Yelled at her that she was a “fuckwit”;
·    Said she was a “filthy fucking monster” and then went on to say “make your peace with the devil. I am sure you will meet him soon”;
·    Described her to T as his “birth parent” and “your parental parent that’s female” when telling T that his mother was on the telephone. Twice in one conversation in the presence of C, told the wife that he would “break” her boyfriend’s “fucking neck”;
·    Described the wife as a “wanna be mum”;
·    Told the wife to “pull” her head in and then described her as a “fucking idiot”;
·    Whilst driving his car and with T talking in the background, described the wife as “shithead”.
Pejorative language is not unusual in our community and children learn its usage quickly but its use must be criticised where it is contextually designed to put a parent down in the eyes of children. Accordingly, the husband’s conduct towards his children was poor role modelling whatever he thought of the wife.

The husband’s bullying

In my view, the husband behaved as one would expect of a bully. It was not just seen in his language in the presence or hearing of the children. He took opportunities to thwart the wife’s time with the children. In more bizarre conduct, the husband attended at a shopping centre car park well before the changeover time but, with the receiving maternal grandmother only a few car lengths away, made the children sit in his car until the moment of time required under the orders arrived. On one occasion at least, T was ill and yet not only was nothing said to the grandmother but the child sat in the husband’s car until the precise handover time and then vomited in the car of his grandmother.
In a quaint scene, the husband stood outside his car and made a gesture with his arms which when photographed showed him with arms pointing to the sky. When I asked him what that was all about, he described it as his way of requesting the maternal grandmother to leave him alone. He proudly demonstrated what is colloquially known as “the bird” gesture. He did that with both hands. He has no understanding of how insulting or offensive it could be. Certainly the grandmother saw it that way. Whether or not his children saw it is not to the point. I can safely presume that that is behaviour which he sees as normal.
The husband consistently maintained that T and C aged six and three respectively, would decide whether they would converse with their mother on the telephone. There were clear audible indications on the tape recordings that he did nothing to encourage the children. In cross-examination, he not only reaffirmed that position but justified it by saying that he “asked” his children what they wanted to do but did not “order” them. His behaviour indicated two things. First, he has a limited understanding of parental responsibility. Secondly, I could have no confidence that these children will ever have a loving and respectful relationship with their mother if the husband continues his destructive ways.

The husband’s obsession that the wife sexually molested T or exposed the children to adult sexual behaviour

The husband’s obsession with the wife having committed sexual acts associated with T or that she would place the children in a position where they would be at risk of being exposed to adult sexual activity ran throughout his decision-making processes.
He said to the wife that he would delight in proving her sexual misconduct and seemed happy that he had humiliated her in an earlier court process by acquiring salacious material to be viewed by a number of people.
The husband accused the wife of having a relationship with her solicitor. He curiously described her relationship with her current partner as a “lesbian” one. The behaviour was incessant, unpleasant and showed no sign of abating.
It is one thing to protect a child from harm but it is entirely another to be offensive and misuse material as the husband did. But, as with all bullies, every now and again, the table also turns. The husband was “set up” by the wife’s male companion and consequently, his poor parenting and obsession with the wife was exposed. I shall return to that below.

The wife’s conduct

The wife had the advantage of having a lawyer to sanitise her evidence. Despite all of the criticisms of the wife by the husband, I found her evidence focussed entirely on the children. She acknowledged her failings as a parent and agreed that there had been conflict with the husband and that she had contributed to it. However, what was telling was that the evidence of her clinical psychologist a Dr R, explained the problem.
The wife had expressed significant hopelessness and reported to Dr R as having been subjected to physical, verbal and emotional abuse. I find there is sufficient evidence to conclude that what the wife told Dr R was true.
Dr R said that the wife was very unwell with a debilitating illness at the time of separation and into 2010. She described the wife’s psychological state in a negative cognitive sense as seeing herself as worthless, a failure, crying a lot and having low motivation. Unresolved, those problems would lead to a cowering which was manifested in depression and anxiety. The treatment including with medication, was therapy. The wife undertook courses and all current indicia show a significant change. The changes include behavioural management and control along with the ability to use positive parenting strategies. That evidence was not just theoretical. It was supported by the wife’s partner and also her mother.
One notable aberration to the wife’s conduct occurred in 2011 when the wife damaged the paternal grandmother’s car and consequently, faced the local Magistrates’ Court. The husband made much of that incident saying that the wife had a “criminal conviction”. Whilst there is little doubt about that, the unchallenged evidence of the wife was that the grandmother walked past her saying she was “timid” and that she was “too scared to do anything”.
The wife’s behaviour was unacceptable that day and consistent with earlier poor impulsive behaviour but I accept her explanation that it was the “straw that broke the camel’s back” and that on most weekends, “something had happened”. The conviction on which the husband focussed was irrelevant by comparison to the question of why it happened. The wife had to pay $129 by way of restitution to the paternal grandmother and I am satisfied that that order reflects the local court’s view of the incident.
Being cross-examined by one’s former partner is always an unsatisfactory experience but worse where there is clear evidence of anxiety and depression arising out of the problems within the relationship. The wife answered the husband’s questions directly and calmly. She looked at him. She was accused by the husband of not telling the truth in affidavits but all of the examples that he put to her seemed to relate to technical detail and not to relevant issues. When tested, the wife conceded hitting the husband in September 2009 and confirmed that she had admitted it in a statement at the time.
One important allegation put to the wife related to the video film to which I shall later refer. The husband said that the wife had accused him of having stolen it. She denied that allegation and when carefully examined, the husband had to acknowledge that no such accusation had been made in the wife’s evidence.
The wife gave credit to the husband about his love for the children and it was only when the husband asked her whether she thought he was a “bad father” that she elaborated. Her evidence concerned his lack of attention to the children.
When the wife was cross-examined by the Independent Children’s Lawyer, she was forthright. She acknowledged her failings and was able to describe her proposals. I see no reason why her evidence should not be accepted.

Orders sought

As the trial commenced, the wife sought orders for sole parental responsibility, residence of the children and that the husband’s time be supervised for six to twelve months by a contact centre. At the conclusion, the wife’s position had not changed. She also sought non-denigration orders, costs and that the video film footage to which I have referred about the children be handed back to her.
At all times, the husband sought sole parental responsibility, residence of the children with him and that the wife’s time initially be supervised and ultimately increased over a long period of time to unsupervised time. He also sought orders about special days and events as well as telephone communication. He could not countenance an alternative if he did not get what he wanted.
The Independent Children’s Lawyer initially sought that the children live with the wife but said that the husband should not have his time supervised. In final submission however, that altered to such time being so supervised. The vexed question was for how long. The husband solved that problem by saying that he would not comply with such an order.

The important evidence

Having accepted the wife’s evidence, the following findings are made on the balance of probabilities.
Throughout the period prior to separation, the husband was physically violent to the wife but also verbally abusive and threatening. During the stresses of business life which occurred in the conduct of the … business, arguments ensued and the husband hit the wife. On one occasion, her threw her against a wall of the house. On both occasions relating to these assaults, the unchallenged evidence is that T was present. In his affidavit, the husband simply denied the allegations. I do not accept his evidence.

All of the evidence discloses a controlling and manipulative man. For example, to prevent the wife from going to a birthday party, because he opposed her attendance, the husband took the tyres off her motor car. Sadly, in his final address, despite being given a number of opportunities to explain how his involvement in the family violence should impact upon the outcome, the husband returned to the same subject which was that it was either explainable by someone else’s conduct or that C had been in nappies and apparently therefore too young to be affected by any such exposure to the dispute.
To the extent that the wife alleged the husband’s behaviour was attributable to an increase in alcohol consumption, which was simply denied by the husband, I accept it did occur and that is not a justification.
The parties separated in January 2010 on a final basis and the husband refused the wife contact to the children who were then in his care. It was the husband’s evidence that the wife was mentally unstable and an incident occurring on 27 January 2010 that warranted his keeping the children. He pointed to the attendance of police and the wife’s reluctance to take medication. He complained that the wife did not contact him but rather just commenced proceedings. I can now well understand why that was the case.
The wife instituted proceedings that culminated in orders of the Court on 19 February 2010. Those provided for the children to live with each party on a week-about basis. Thus, I must conclude that although the husband alleged that the wife was mentally unstable, a court thought otherwise at that time. Certainly the orders were entirely inconsistent with a concept of the children being at risk in the care of the wife.
It was the husband’s view that the wife had mental illness problems. There can be no doubt on the evidence of Dr R that she did but with medication, they were not sufficient to cause concern in her role as a parent. As cross-examination unfolded, it appeared that the husband too had had his own difficulties.
Although it was after the February court orders, there is significance in the events of 12 March 2010 when the husband called the local mental health team and told them he was going to commit suicide by hanging himself. He told them he was increasingly angry and frustrated about the separation and how it was impacting upon the children. He noted that the wife was unwilling to get the relationship “back on again”. This was inconsistent with the husband’s actions only weeks before in denying the wife’s time with the children culminating in the February 2010 orders. More importantly, this visit was not mentioned to anyone including the Court and in particular, not mentioned to a psychiatrist Dr M a few weeks later.
Before me, when questioned about his own suicidal ideation in cross-examination, the husband said that he had been on medication and somehow, the incident to which I have just referred caused him some distress so he was taken off the medication. None of that had been mentioned to Dr M. This episode only came to light when the hospital records were subpoenaed. The husband’s dismissal of the relevance of that episode was concerning because although he saw it as an aberration caused by medication, the hospital saw it otherwise and treated it seriously.
Consistent with my earlier remarks about the husband’s bullying, one might wonder why the husband would complain to the hospital about the unresponsiveness of the wife to his desires in the relationship.
With the husband’s stated view of the relationship around that time that, curiously, it was not long after the February 2010 orders that further problems arose when he made serious allegations against the wife.
In April 2010, the husband sought to alter the February 2010 orders on the grounds of child abuse. Immediately upon filing the application, he retained the children and would not return them.
The husband filed an affidavit on 22 April 2010 in the Federal Magistrates Court and said that on 17 April 2010, he discovered a photograph that he had never seen before and it distressed him greatly. This particular affidavit was attached to his trial affidavit so I was able to understand what he was talking about. Nothing was said in the affidavit about why he was distressed but he attached a copy of the photograph. In his trial affidavit, the photograph is at best “grainy”. Having found the photograph, he proceeded to call his sister to come and attend. This brought in the evidence of the husband’s sister.

The vibrator allegation

Ms K is the husband’s sister. Her “statement” which she apparently prepared, was also attached to the husband’s affidavit. As I earlier pointed out, he initially said he was not relying upon that document but on the second day of the hearing, changed his mind and called Ms K. She confirmed in evidence that her statement was true and correct. The only relevant part of the statement was that having been shown the photograph, Ms K spoke to T who said that his mother made him hold a “stick”. She asked the child what his mother did with the stick and T touched his chest and proceeded to drop his hand and say that it went into her chest and then “in her bum bum”. When asked what colour the stick was, she said the child replied “brown”. Ms K said she went outside and spoke to her brother and asked him did the wife own a vibrator and the husband confirmed that she did and that it was “red”. Ms K then returned to T and she asked him whether the stick made a “funny noise” and he shook his head and said “yes”. He then went on according to Ms K to say that the stick “has to go all the way in” showing on his arm how far. This particular statement gave rise to a second allegation of abuse against the wife.
The interpretation of the child’s statement together with finding the photograph led the husband to file the application to which I have referred. Over the ensuing days, T was taken to the Community Service Department where he attended a counsellor. Doing the best I can, it would seem that nothing was said by the child but on the fourth session, which occurred in May 2010, the counsellor noted that Ms K was putting leading questions to the child. Further, Ms K told the counsellor that she needed help for the court proceedings which had been filed. Both of those matters were put to Ms K as having occurred and she denied them both. Objectively, there is no reason for the counsellor to lie or inaccurately record her concerns. There was every reason for Ms K to do what was being alleged because she was the one who had formed the view about what T said and had wanted to assist her brother in the court proceedings. I do not accept Ms K’s answers were truthful.

The evidence of psychiatrist Dr M

With concerns being raised at the hearing in February about the mental health of at least the wife, the parties attended upon Dr M.
Dr M is a psychiatrist. Her evidence was encapsulated in an affidavit. It was relied upon by the Independent Children’s Lawyer but Dr M was not required for cross-examination. Much of Dr M’s evidence bears no relevance to the factual issues I have to decide but in respect of the specific allegations about the photograph just mentioned, Dr M said she saw the husband and the wife. That was on 23 April 2010. Doing the best I can with her observations of a discussion with the husband, the vibrator issue seemed of little importance. Dr M said of the husband:
At interview, he was volatile; very controlling of the interview. He spoke loudly with intensity and gave a disjointed history. His comments that she [the mother] is sexually abusing the children are at variance with his claim that she is a good mother and that he wants to get back to her.
On 31 May 2010, Coker FM heard a contested hearing on what orders should be made arising out of the husband’s application. His Honour made orders continuing the week-about arrangement but this time required that the wife’s time be supervised by the maternal grandmother. Having regard to the fact that the learned Federal Magistrate had access to Dr M’s report, I can only conclude that any concern about the wife’s sexual proclivities with the children along with the perception that the husband wanted to continue the relationship with her and that she was a good mother, must have influenced his Honour to make the orders he did. His Honour ordered time for the wife to care for the children to be for seven days at any one time albeit it was to be supervised by her own mother. The reasons for judgment do not appear to have been published but I cannot see that there is any other inference open.

Psychologist MS N

Subsequent to the May 2010 orders being made and the time between the wife and the children being resumed, the children attended upon clinical psychologist Ms N. Her affidavit was read but she was also not required for cross-examination. Her assistance had been sought to explore the question of whether T inter alia, had been exposed to inappropriate sexual behaviour. She had a number of sessions with both children in August through to October 2010.
Ms N’s evidence is very important. She said that she had no doubt from what she saw and heard that one family member or two was quite “violent, rough, mean and aggressive” towards T. She said that T copied the behaviour complete with adult language and used it towards his sister. That abuse was having an impact on T’s emotional development.
What Ms N observed was T’s physical contact with C. It concerned her that C was oblivious and giving no reaction to T’s hitting and pushing. She found the child not distressed and her conclusion was that C had become desensitised to violence and that that sort of behaviour was normal from C’s perspective.
Ms N obtained answers from T about where he wanted to live and it was quite clear that his preferred position was with his father.
Bearing in mind that this evidence was of observations in August to October 2010, I have little doubt that whilst there were arguments between the parties, the primary aggression was coming from the husband and it was the father who was teaching T bad habits.
Ms N found that there was no indication of any sexually inappropriate behaviour but she was very concerned about the violence to which T had been subjected.

Single expert witness Mr W

Another person who saw the parties and the children around that same time was Mr W. Mr W was the single expert witness who is by profession a psychologist.
In December 2010, Mr W completed his first report for the Federal Magistrates Court and noted the allegations of the husband about the “stick”.
In his report, Mr W observed that he had read all of the material that he had been provided. Accordingly, Mr W had access to the investigations of the relevant police and welfare authorities. He said of the police authorities that their investigations indicated no offences had occurred and no charges would be laid. I note that the husband does not accept that the investigation was properly undertaken but I am not sure why. In respect of the welfare authorities, there were no issues of concern relating to T’s safety but they did have a concern about the husband who was specified as the person subjecting the children to emotional harm.
Later in these reasons, I shall refer to the opinion of Mr W about the future needs of T and C.
Mr W noted that the husband disputed this one-side of the examination and that his “side” had not been approached or interviewed and that he intended to take the investigators to task. I have some difficulty with the husband’s approach because it was clear that his sister had been very much involved in the investigation by the welfare authorities. Further, in evidence before me, the husband made clear that he will pursue those authorities after these proceedings.
The husband has made allegations of bias and complaints about various individuals in that investigation process. I have not taken any of those assertions into account but relied entirely upon the evidence presented to me.

The outcome of the “stick” and the “belly” photograph

The photograph was explained by the wife as being a picture that she took in or around November 2008 in a very advanced state of pregnancy. It shows T at her knees with an arm between her legs. She described the child’s action as a regular occurrence of climbing onto her and kissing her pregnant stomach. The husband’s assertion was that this was some form of sexualised behaviour encouraged by the wife. I could only presume he was asserting that the child was penetrating his mother with his arm. It is not my function to have a subjective view about what the photograph means. In my view, I should determine the matter on the basis of the evidence of the parties. Having made findings about the lack of credibility of the husband, I have little hesitation in this case of accepting the evidence of the wife. Nothing sinister could be seen in that photograph.
The allegation heard by Ms K must be determined the same way. There is no evidence to corroborate any impropriety on the part of the wife. A number of questions were put to the husband about his assertion that the wife had masturbated herself with a vibrator in the presence of T. I reject any such assertion on the basis that there is no plausible evidence of that.
The clear indication of the welfare authority about Ms K was their concern that she was pushing T to provide evidence that might assist the husband. There may be some little distinction between a brown stick and a red vibrator but having regard to the investigations that have been undertaken and the evidence of the wife, I reject any assertion of any impropriety on the part of the wife. In my view, the whole investigation was done properly. Dr M’s evidence has a strong temporal connection with the timing of the incident. At that time, the husband had no concerns and wanted a reconciliation and was even prepared to acknowledge the wife as a good mother. The wife’s evidence must be accepted.

After the May 2010 orders

From May 2010 onwards, the prevailing orders for the children were that they lived on a week-about basis. I have already referred to the appalling conduct of the husband in his abuse from time to time of the wife which I find was seen by or heard by, the children.
Changeovers were a constant problem. The husband was offensive and intimidating. That culminated in further proceedings with orders of 20 September 2010 that changeover occur at a McDonald’s Restaurant on Fridays at 6.00pm with only the involvement of the respective grandmothers. The husband continued to attend but remained outside of the immediate environs. His explanation was that on Fridays at that time he returned from work and that would be the only time that he would be able to see his children. That gave me cause for concern as to who was actually caring for these children. I have little doubt that it was the paternal grandmother whilst the husband was at work.

The video film footage

It was early after the May 2010 orders however that the next problem began. It was common ground between the parties that the wife indulged in some sexual activity which she filmed on her own camera. I accept without any reservation that on the same film, two sequences relating to the children had been filmed. Her sexual activities just followed on. The film to which I have earlier referred and which I have not watched, made references to drug usage by the participants. It was the wife’s evidence and I accept it, she did not participate in any drug usage. She conceded that there was other drug usage but not by her.
This particular video fell into the hands of the husband. It was highly contentious. I have earlier referred to it. How the husband came into the possession was hotly disputed. There are two versions. The husband’s version was that in December 2011, he made contact with the wife’s partner Mr P. He said he attended at Mr P’s residence and Mr P gave the tape to him. Mr P’s version was that he did not give the husband the tape but on the contrary, it was stolen from his premises.
Because I have rejected the evidence of the husband generally, I see little reason to doubt what Mr P told me.
Mr P had been the partner or companion of the wife throughout 2011 and in evidence he gave, noted how she struggled with the abusive behaviour of the husband. By concurrence of the wife, he set out to “set up” the husband. He told the husband lies about a number of matters and the husband took advantage of that situation to think that Mr P would provide evidence of the wife’s sexual activities involving the children.
It was Mr P’s evidence that the wife had stored a number of her personal items at his house and that he had suffered a burglary. He said he came home to find the wife’s items which were in a plastic container spread out but only this particular tape had been taken. He said he did not report the matter to the police because he had little confidence that they would do anything about it.
The husband’s version was that he had been dealing with Mr P and at his invitation, attended the residence to collect the damning evidence. Both versions are plausible but for the reasons I have indicated, I accept that of Mr P.
Mr P was subpoenaed by the husband to produce documents and to give evidence. The documents related to telephone records but also other information which was not discoverable. In relation to his telephone records, he told me that he did not have those records because the telephone number was not in his name.
On the day before Mr P gave evidence, the wife said that she thought their relationship was ended because of the stresses associated with these proceedings. Mr P indicated he did not know of such a view. I do not propose to draw any adverse inference against the wife for that having regard to the view she expressed about how much stress their relationship was under arising from these proceedings. Because the husband asserted that Mr P had lied to him and was refusing to give evidence, I permitted him to treat him as an adverse witness and cross-examine him. Mr P was candid in indicating that he had lied to the husband and he gave his reasons as I have outlined. His explanation was plausible. The husband put to him a number of text messages all of which appeared to be derogatory of the wife. I am satisfied that Mr P lied to the husband but that he was truthful to the Court. The importance of Mr P’s evidence is that he confirmed two things. First that the wife was a competent mother and that she had been through a torrid time in dealing with the husband and that he, Mr P, had observed all of that. The second was that in respect of the wife’s evidence about maintaining her medication, he had seen her following advice.
This evidence was extremely damaging to the husband.

Is there any relevance in the film footage?

I return then to the video film. At the outset of the proceedings, the husband indicated that he would prove that the wife had been “hawking” the video around or had been putting it in a position where it could be so hawked about. None of the evidence supported that contention. None of the evidence supported the husband’s assertion that there was any link between the wife’s sexual proclivities and the children. On finding that Mr P did not give the husband the film, it could hardly be said that the wife had been negligent in leaving it around where it could be “hawked”.
The wife had been humiliated by that video having been observed by a number of people. It currently sits in the registry of the Family Court under the control of the registrar and I propose to order that it be returned to the wife to be hopefully destroyed.
Importantly, it was the wife’s evidence that the sexual activity occurred prior to the time that her relationship with Mr P commenced. It is also consistent with the period of time where the wife had been refused time with the children by the husband as a result of his allegations of sexual impropriety. It is also consistent with the evidence of Dr R that around that time, the wife was struggling to overcome depression and anxiety. For what it was worth, the wife acknowledged that it was a mistake. To Dr W, she seemed oblivious to the risks of unprotected sex on the health of her children. All of that now seems to have been overcome by the more recent changes observed by Dr R which indicate that the wife has now got her life in order.

Finding about risk

I find that the husband is obsessed that the wife has abused T and possibly both children. I find there is no foundation for his concerns. I find there is no risk for these children in the wife’s care accordingly. I find that the obsession of the husband creates the anger and abuse that he directs at the wife. I find that he has no intention of relenting and that these children are significantly at risk in his care of emotional damage by being constantly exposed to the berating by the husband of the wife. I find that the children will never have a respect for the wife for so long as the husband has an opportunity to continue that behaviour.
Both the Independent Children’s Lawyer and counsel for the wife submitted that if that finding was made, supervision of any time with the husband was the only option. Sadly, despite the husband having had a very significant role in the lives of these children, I find there is no choice.

Is the husband’s aggression isolated to the wife

The husband’s aggression was not only directed to the wife and her mother. By telephone, he made a threat to kill psychologist Dr R. He also threatened Mr P when things did not go according to the way he wanted.
In final submission, counsel for the Independent Children’s Lawyer submitted that one might wonder whether the husband’s statements were “throw-away lines” or whether they were genuinely held beliefs. I agree it is difficult to know but that does little to assist the recipient of the threats. The alarming point is the consistency of the husband’s behaviour.
In both his affidavit and oral evidence, the husband said that he had tried to mediate the dispute with the wife indicating that they had to work out what was good for the children but he said that the wife was unsupportive of the idea. She refused to have such a meeting. Having seen the behaviour of the husband, I accept the wife’s version of her fear of the husband and am not at all surprised by her reticence to meet him.

The wife’s capacity to care for the children

The undisputed evidence of the wife is that when the children are returned to her care, they are clinging. They will not allow her to leave to go to the shops and T becomes upset and difficult to settle. In addition, they are tired and angry.
The husband did not dispute the wife’s capacity to care for the children. She said she was living with her parents in a four-bedroom home where the children had their own rooms. She said her mother was a great support providing assistance as well as having a good relationship herself with the children. She intended to remain living with her parents but in doing so, continued to be responsible for the children including cooking their meals, cleaning up after them, bathing them and providing for their daily needs. At the moment, T is attending the local Catholic school in Prep and all indications are that he is doing well.
The husband’s complaint was that the attendance record showed that there was a concern about T whilst in the wife’s care. I have examined those records and it is not at all clear whether the school has any concerns about those attendances. The husband’s description of the wife’s approach was that she did not care but that is inconsistent not only with her evidence but with the lack of challenge by the husband to her care.

The husband’s evidence about his own capacity to care for the children

Most of the husband’s evidence was a diatribe of little relevance. He set out his proposals for the care of the children indicating that he was employed on a full-time basis and he too said that the children were excited to see him and reluctant to leave.
He described the living arrangements and pointed to the fact that T was doing well at school.

The evidence of the maternal grandmother

The maternal grandmother had watched the disintegration of her daughter’s relationship with the husband. Understandably, she had nothing positive to say about him. Her evidence about the husband’s behaviour does not need to be repeated here because whether or not the husband denied it, he acknowledged that he had been behaving appallingly. It took until his cross-examination of the second day of the trial to make that acknowledgement and only when all of the evidence against him was overwhelming. Of her observations of the children, the maternal grandmother said that they were well cared for and settled. I accept her evidence.

The opinion of psychologist Mr W

Mr W is the forensic psychologist and single expert witness mentioned above. No-one challenged his expertise.
Both parties were observed by Mr W. I accept his observations about the issues as being objective. He attended the homes of both the husband and the wife for the purposes of his observations. Of the wife and the children, Mr W said T was verbally interactive and there were no apparent issues of difficulty with his mother or grandmother. He noticed that at times T would act in a petulant and manipulative manner and was aggressive. Despite that, Mr W found that the wife and grandmother managed the interactions reasonably well. He described the interactions as loving, affectionate, communicative and clearly inclusive. He made similar observations about C.
Of the husband and the children, Mr W said that T and C were quite different in their behaviour but the husband managed to manage the children appropriately and without difficulty. Mr W said that C was clearly bonded to her father and comfortable in his presence seeking attention but T was less so.
Mr W found the husband to be attentive, loving, caring and having no difficulties with his interactions with the children.
In his initial assessment in 2010, Mr W said that he thought a shared care arrangement would be best for the children because the exposure by the children to their parents was a loving and supporting relationship. He did not feel there were any concerns about deviant behaviour by the wife and both parents were ready and willing to provide for the necessary care for the children. In his view, the children needed both their mother and father in their life and were capable of adapting and profiting from a shared care arrangement.
In February 2012, Mr W wrote a second report. Unfortunately, the husband had not attended. The husband’s initial explanation was that he could not get time off work but the implausibility of that must be seen in the fact that no alternate arrangements were made bearing in mind Mr W’s attendance on both parties at their homes on the first occasion. The husband’s lack of cooperation is another flaw in his character. I have therefore presumed that he had little to say to Mr W.
In his February 2012 assessment, Mr W said that the children’s lives had been in “turmoil” because of the behaviour of the husband in terminating their contact with the mother pending the outcome of the allegations over the film to which I have earlier referred. Mr W was complimentary of the mother of having completed courses relating to her parenting skills.
Interestingly, Mr W said that he was still of the view that a good relationship existed between each of the children and their respective parents but he then added:
I am very much of the view and have only had this confirmed that the relationship which exists between the adults is such that it will make a shared-care arrangement extremely difficult to ensure certain things remain in place.
What Mr W was referring to was the fact that the children would only profit from such an arrangement if the behaviour ceased. The behaviour that he was concerned about was that of the husband. His opinion was that if that behaviour persisted, a shared-care arrangement was not appropriate but he went further and said that the husband’s time with the children should not only be limited but also supervised.
Mr W added in cross-examination that without signs of change, and there were none, a trialling of the concept for a period such as a year was pointless and unrealistic. I agree.

Conclusion

As is accepted, T and C love their parents and vice versa but this determination is much more than about just love. Love is a word easily bandied about and becomes meaningless where the real task of parenting children is about protecting them from both physical and emotional harm, guiding them to become responsible adults, assisting and promoting their development, allowing them to learn skills and what might be described as manners. Parenting is about encouraging children to enjoy the many things the parents have to offer because of their own interests. All of those values are reflected in the aspirations set out in s 60B to which I have earlier referred. This is about the rights of children. Those rights are about much more than just having a relationship with the children. Parents have a responsibility to do their best to ensure that their children are protected from harm and develop as well-rounded adults. With the husband’s obsession, appalling negative behaviour and lack of insight, T and C will never have those opportunities if the existing regime continues.
I have already pointed out the very sad fact here that the evidence points to the relationship between the husband and the children needing to be supervised and limited. The husband made very clear that he would not undertake such a course of action. He has proposed to move a long way away from where the children currently live.
On all of the evidence, I find the wife’s proposals for the future care of the children are far more likely to enable the children to meet the necessary goals and objectives of the legislation. I find there would be a serious risk of long-term emotional harm for the children had they stayed in the care of the husband or were exposed to him without supervision.
Accordingly, it is important to make orders as set out at the start of these reasons.

I certify that the preceding One Hundred and Forty Nine (149) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 April 2012.

Associate:

Date: 2 April 2012

[2012] FamCA 189

2 April 2012

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