Gates and Parry

[2016] FCCA 618

FEDERAL CIRCUIT COURT OF AUSTRALIA

GATES & PARRY [2016] FCCA 618

Catchwords:
FAMILY LAW − Whether therapeutic counselling will lead to supervised time − whether children can ever have a meaningful relationship with the father − whether order for supervised time conditional on recommendation of a counsellor in children’s best interests.

Legislation:

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

Applicant: MR GATES

Respondent: MS PARRY

File Number: DGC 3357 of 2012

Judgment of: Judge Phipps

Hearing dates: 7, 8, 9, & 20 October 2015

Date of Last Submission: 20 October 2015

Delivered at: Dandenong

Delivered on: 23 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Goddard

Solicitors for the Applicant: Belleli King

Counsel for the Respondent: Dr O’Brien

Solicitors for the Respondent: Dandenong Family Lawyers

Counsel for the Independent Children’s Lawyer: Ms Bonney

Solicitors for the Independent Children’s Lawyer: McCormack & Co

ORDERS

1. That all previous orders are discharged.

2. That mother have sole parental responsibility for the children W born (omitted) 2002, X, born (omitted) 2005, Y born (omitted) 2006 and Z born (omitted) 2008.

3. That the said children live with the mother.

4. That the children spend no time with and have no communication with the father.

5. That the order appointing the Independent Children’s Lawyer is discharged.

6. That otherwise all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3357 of 2012

MR GATES

Applicant

And

MS PARRY

Respondent

REASONS FOR JUDGMENT

Introduction

1. The issue is whether there be orders that the parties’ four children, after therapeutic counselling, should spend some supervised time with their father followed by unsupervised time.  This is what the father proposes. The mother proposes there be no orders for the children to spend time with their father.

2. The children are W born (omitted) 2002, X, born (omitted) 2005, Y born (omitted) 2006 and Z born (omitted) 2008.

3. The parties separated on 20 September 2010.  Since then the father has seen the children briefly on two occasions late in 2010 but not since.  He commenced these proceedings two years after the separation.

4. Before birth Y was diagnosed with the condition Agnesis of the Corpus Colussum.  In 2008 she was diagnosed on the Autism Spectrum and is considered severe on the spectrum.  For the purpose of going to school she was assessed as having an intellectual disability on a moderate to severe scale.  She attends a special school.  She requires constant supervision.

5. W aged, 13½ at the time, told the family consultant she did not want to see her father.  X and Z have little recollection of the father.

Proposals

1. Ms A prepared the family report.  Her recommendation is that Z and X undergo therapeutic counselling and that in conjunction with the Independent Children’s Lawyer consideration be given by the therapeutic counsellor at an appropriate time for them to spend time with the father supervised by a Children’s Contact Service.  She recommended that the father engage in personal counselling to assist in separating his own views of the mother from the developmental needs of the children and that the mother engage in personal counselling to assist her in promoting and supporting the children in re-establishing a relationship with their father and the separate views from the developmental needs of the children.

2. In cross examination Ms A considered that perhaps W could be included in the therapeutic counselling.  She did not consider that therapeutic counselling was appropriate for Y.

3. The father’s proposal is lengthy and illustrates some of the problems in this case.  He proposes that the mother have sole parental responsibility for the children, that the children live with the mother and that the children spend time and communicate with him:

   a)On a fortnightly basis at a contact centre at the expense of the father;

   b)The father be permitted to send cards letters and birthday gifts and Christmas gifts by post no more than once a calendar month;

   c)The children be free to contact the father in accordance with their wishes by telephone or by email to a telephone number and email address the father provides;

   d)There be a course of therapeutic counselling as recommended by the counsellor;

   e)Following six consecutive months of the father spending time with the children at a contact centre the children spend time with him for six hours at least once per month on a day agreed and failing agreement the first Sunday of the month between 10.00am and 4.00pm;

   f)Other times as agreed between the parties.

4. The clauses in the fathers proposed order which illustrate some of the problems in the case should be set out in full:

   Prior to commencement of time and communication…the children and the parties shall attend upon a therapeutic counsellor as recommended by such therapeutic counsellor for the purposes of assisting the parties to give effect to these orders and in particular to assist the children to develop a meaningful relationship with their father provided that they are protected from emotional harm whilst doing so.

   The father shall nominate in writing within 14 days hereof a therapeutic counsellor from those recommended by Ms A in paragraph 97 of the Family Report dated 30 March 2015 for the purposes of order (a) and shall meet all expenses of the parties’ and children’s therapeutic counselling;

   In respect of the child W, the mother shall encourage the child to attend therapeutic counselling in accordance with order (a) and spend time and communicate with the father in accordance with orders… However such attendance shall be in accordance with and conditional upon the child W’s wishes.

   In respect of the child Y, her attendance upon the therapeutic counsellor shall be dependent upon the therapeutic counsellor determining, upon the mother’s advice as to Y’s physical, emotional and intellectual limitations, whether the therapeutic counselling can be of assistance to Y.

   The mother shall be excused from facilitating Y spending time with the father pursuant to order…in the event that Y has been unable to participate in therapeutic counselling or spend supervised time with the father.

5. The father’s proposal then includes an order that he attend upon his treating psychologist to assist the father to give effect to the orders, the mother attend upon a counsellor of her choosing to assist her to give effect to the orders and assist in promoting and supporting the children in re-establishing a relationship with their father.  The proposal includes the following:

   The therapeutic counsellor provided for by order…hereof shall be at liberty to liaise with Family Life Contact Centre in respect of how and when the children should commence supervised time with the father.

6. The mother’s proposal is that she have sole parental responsibility for the children and the children live with her.  She proposes the children spend no time with the father.  Her counsel, in final address, said that the mother was not opposed to the sending of cards and letters but did not wish to give her address and did not oppose therapeutic counselling.

7. The Independent Children’s Lawyer’s recommendation at the conclusion of all the evidence was that it may be sensible to have interim orders but if there are final orders they should be sole parental responsibility to the mother, that the parties enrol in a community contact centre and do all things necessary to engage in therapeutic counselling.  There was a suggestion that the parties then return to the family consultant.

Background

1. The father was born on (omitted) 1964 and the mother on (omitted) 1973.  They began living together in the middle of 2001.  They did not live together for two years from after the birth of W in 2002 until 2004 nor did they see each other.  W lived with the mother and according to her the father saw little of her, something the father disagrees with.

2. The parties resumed cohabitation in August 2004 in a rental property in (omitted) and in 2006 purchased a property in (omitted).  They married on (omitted) 2008 and separated on 20 September 2010 when the father left the (omitted) property.  The mother remained in the property with all four children.  The property was sold in February 2011 and the mother and children have since lived in rental properties.  The mother does not wish to disclose her current address to the father.

3. Both parties agree the relationship was a volatile one.  They had frequent arguments.  The mother alleges occasions of actual physical violence towards her by the father.

4. The father expresses the view that it was his role to provide financially for the family and renovate the home.  The mother alleges he had little to do with the children, something the father disputes.  The father told the family consultant he would spend about 30 minutes with the children each day and would watch television.

5. By the end of the relationship the mother and the children were sleeping together in the family room.  The mother says she did not wish to sleep with the father and she said the children’s rooms were full of tools and rubbish from the father’s unfinished renovation tasks.  The father alleges that the mother did not keep the house clean and in particular there were many mouse droppings and children’s toys.  The mother acknowledges the house was untidy but says this was because of the father’s unfinished renovation tasks.  She says the house was clean to the extent that she was able to keep it clean.  She acknowledges a mouse problem.

6. The mother met Mr M, who was then living in the (country omitted), over the Internet in (omitted) 2010.  The mother says that this was because of a joint interest in (hobby omitted) and she began talking to him via Internet messages.  The relationship, the mother says, became romantic in early 2011.  The mother says that he listened to her and helped her through the difficult relationship.

7. Mr M came to Australia in (omitted) 2012 on a 12 month visitor visa and stayed with the mother and children.  The mother and Mr M applied for a spouse visa for Mr M in (omitted) 2014 and decided to marry and fixed a tentative date in (omitted) 2015.

8. Mr M returned to Australia towards the end of 2014 on a holiday visa.  The mother says she did not know until the last minute that he was coming.  Mr M returned to (country omitted) in late May 2015.

9. The mother says that her relationship with Mr M became strained for two reasons. W was unhappy with the relationship.  Mr M, about 10 years younger than the mother, wanted children and she, 42, did not want any more children.  She found that she was pregnant in (omitted) 2015 and had a termination.  Mr M knew of the pregnancy and was unhappy with the termination.

10. The mother works as a (occupation omitted) three days a week.  The father has not worked since the time of separation or prior to separation and now lives with his mother and receives a carer’s allowance for caring for his mother.  His mother is elderly and unwell.

Family Violence and Father’s Attitude to Mother

1. The mother says that during the period of cohabitation from June 2001 to March 2002 the father was verbally abusive towards her and she gives examples.  She describes the relationship as generally very volatile.  She said she and the father would argue frequently, something with which the father agrees.  She says many of the arguments revolved around what she perceived to be the father’s gambling problems.  The father denies gambling.

2. The mother says the first time the father was physically abusive to her was in 2002 shortly after the birth of W.  The father swore at her and shoved his foot into her stomach.

3. The mother says that during the period from when they resumed cohabitation in (omitted) 2004 until separation in September 2011 the violence by the father towards her escalated.  He continued to abuse her and she says initially he commenced putting his face right to hers and shouting at her.  She says there was more than one occasion upon which the father grabbed her and squeezed her head very tightly.  She claims in one of these occasions she temporarily lost hearing in her left ear.  This was around 2006 prior to purchasing the (omitted) house.

4. She says on more than one occasion the father ripped her jeans from her and there was one occasion in 2010 where he forced himself on her sexually despite her indicating to him that she did not consent.  She says on more than one occasion the father pushed her against the wall in the hallway while the children were in the living room.  On one occasion he hit her with a closed fist.  While arguing outside in the driveway of the (omitted) home the father drove over her foot.  She says he did not stop to see if she was all right.

5. The mother says she remained with the father and continued having children because she wanted to have the children.  She did not complain to the police.

6. The father says separation occurred in these circumstances.  He came home about 11 o’clock.  He says the mother was in a drunken state.  He said that the mother had been texting on the phone and ignoring him.  When she was asleep he looked at her phone and discovered the affair with Mr M.  He wanted the mother to leave but she did not.

7. One occasion only of violence to the children is alleged by the mother and to an extent acknowledged by the father.  Y, when she was two, scratched the new television.  The father picked her up and threw her to the mother in anger.  The parties disagree about the distance of the throw.

8. The father’s mental state and beliefs about the mother are discussed later in these reasons and may be the explanation of the manner in which he approached the evidence.  In answering questions the father was intent on narratives which were sometimes to the point of the question and sometimes around it.  He was intent on putting his point of view and his description.  When it came to the mother’s specific allegations of events of violence towards her his response was not to give a narrative but to either deny the event happened or say he did not recall it.

9. The mother’s description of some of the events is detailed.  The mother alleges that after separation the father returned to the house often, sometimes coming in and sometimes remaining outside and looking in.  She says on one occasion when the father came into the house she was having a shower.  He came into the bathroom spread her legs and said he wanted to look to see if she had waxed or shaved to see what she had been doing.  The father’s response was to deny it.  He did not deal with the question as he did with many others by giving a narrative favourable to his own behaviour.  His response to other incidents described by the mother that he did not recall is inconsistent with his detailed recollection of events he saw as favourable to his case.  Hs denials are unconvincing and for the shower incident in particular it is something that somebody in the position of the mother would be unlikely to make up.

10. The father went to considerable lengths to describe the events around the time of separation, particularly his discovery that the mother was spending long periods of time on the telephone to Mr M who was in (country omitted).  He went to considerable lengths to say how he attempted, after he left, to explain to the mother what was wrong with her relationship with someone she had never met.  He described how he saw from outside the house, in the backyard, that the mother was using her telephone and was on Facebook.  The father was intent on describing how he knew the mother was continuing that relationship because of what he had observed through the window when he was in the back of the house.  His emphasis on this suggests an over concentration on the relationship with Mr M rather than the father’s stated concern about the children.

11. In his evidence, the father kept coming back to the fact that the mother had met somebody on the internet.  He did this even though this was irrelevant to the question.

12. The father is convinced that the mother was the convenor or principal person in a Facebook group which engaged in sexual fantasy role-playing.  He was convinced that she was (“omitted”) and that Mr M was also a member of the group under an alias.

13. The father gave evidence that shortly before the hearing he received a letter from Mr M saying he had important evidence about the mother which would assist the father in his case in relation to the children.  The father says Mr M wanted $1,500 for the information.  He produced the letter and then says he had an extensive email communication, also produced, with Mr M and met Mr M at a shopping centre.

14. The father gave this evidence commencing about halfway through his cross examination by counsel for the Independent Children’s Lawyer, after his cross examination by the mother’s counsel was finished.  His affidavits contain nothing about the letter and subsequent events and neither did his oral evidence in chief.  He said he had told his lawyers and was advised not to include it.

15. It was put to the father that he had invented all of this and he was the author of the letter and the emails, which he denied.  Mr M was, by this stage, back in (country omitted).  Understandably he was not called to give evidence.  Mr M was interviewed by the family consultant.  Her impression of Mr M is inconsistent with the nature of the letter and the emails and further is inconsistent with the mother’s description of him.  The emails and letters contain material which the father could have obtained from other sources.

16. If a finding about the correctness or otherwise of what the father alleges about the letter and emails and meeting with Mr M was necessary for the resolution of what is in the best interests of the children, it may have been necessary for the case to be adjourned to allow the mother and the Independent Children’s Lawyer to investigate and to see if Mr M could give evidence.  No application was made and the decision on this matter of fact is not necessary.  In the circumstances I am unable to make a finding that what the father alleges is correct.

The father’s mental health

1. Evidence came from two psychiatrists and a psychologist as well as a counsellor.

2. Dr D is a Consultant Psychiatrist with 20 years’ experience including as the Director of Psychiatry in major hospitals.  He saw the father on two occasions, wrote two reports and gave oral evidence.  These followed an order on 18 April 2013 that the father attend a psychiatrist for the preparation of a psychiatric report.

3. He first saw the father on 9 August 2013.  Amongst the things that the father said to Dr D was that the mother was using an alias on Facebook.  The father said the mother was doing it for entertainment.  The father said he is convinced that it is her, that he had had his suspicions for some time.  The father told Dr D that a person called Mr M is the mother’s boyfriend and that the boyfriend’s alias is (“omitted”).

4. Dr D describes the father as intense, slow talking, deliberate and had a preoccupied look to his face.  He appeared introspective and controlling, he was a difficult historian and obtaining a clear, chronologically accurate history was not easy.  Dr D said the father was at pains to align him on his side following his discoveries on Facebook.

5. Dr D concluded based on the history obtained, the findings of the mental state examination and on considering the supplied documentation that the father may have a major mental disorder.  He appeared to be out of touch with reality and Dr D said in his opinion he may have developed a psychotic psychiatric condition.  He considered the father required further reviews and assessment by a psychiatrist.

1. Dr D expressed the opinion that the father had a low potential for physical violence against the mother.  He considered his parental ability had the potential to be very impaired by any mistaken beliefs and the nature of any psychiatric condition that he suffers from.  He considered the children are at small risk of emotional abuse by the father imposing irrational or mistaken ideas on them.

2. Dr D expressed the opinion that there were psychiatric contra indications to the father having parental access to the children which may be able to be managed by appropriate and tightly supervised access.

3. Dr D is a Consultant Psychiatrist who saw and assessed the father on five or perhaps six occasions from September 2013 until May 2015.  He prepared a report and gave oral evidence.  Prior to preparing his report he had read Dr D’s first report.  He assessed the father on 19 May 2014 and states in his report that he did not observe any psychiatric symptoms in accordance with the DSM-5 criteria.  He disagreed with Dr D’s assessment.

4. Dr D saw the father again on 14 March 2015 and prepared the second report.

5. Dr D says that on the second occasion he was able to spend over an hour with the father.  The father brought along his iPad and a range of printouts of Facebook pages.  The father told Dr D as soon as he sat down, without waiting for the usual introductory pleasantries, that he was 100% certain that he had connected the dots.  The father said to Dr D that he, Dr D, had said he, the father, is out of touch with reality, so he proceeded to explain the truth of his beliefs.  The father sat very close and proceeded without prompting to go through his material.

6. Dr D expresses the opinion that the father is emotionally unwell and unsettled.  He described his presentation as abnormal.  He displayed impaired judgment and a preoccupation, along with paranoid ideas and interpretation of events once again which strongly suggested he may have a psychotic psychiatric condition.

7. Mr A is a psychologist.  The father was referred to him for psychological treatment.  He described him as displaying insight into emotional triggers and associated reactivity in relation to his ex-partner and continued to learn to manage his distress tolerance.

8. Ms W is the Family Violence Program Leader with (omitted) Community Health Service.  The father approached her telling her he had been ordered to attend a Men’s Behaviour Change Group.  He said he was caught up with the injustice of the situation.  He described the mother as lazy.   He produced photographs of what he said was mouse dirt in the house.  He said the mother had had an affair with a man over the internet.

9. Ms W says that when she saw the father on 15 November 2013 he referred to the mother as a “pig” and stated that some of his friends wanted to kill her.  He said “she is like a leg with gangrene and I’m going to cut it off”.

10. The father did not complete the course.  He said it was because he was asked to sign a release which would permit information to be provided to the mother.

11. Ms W wrote a letter about the father’s behaviour which she sent to the mother.  She said this was the first time she had ever done that but she was concerned about the father’s behaviour.

Family report

1. The family report was prepared by Ms A.  She said the father presented as a particularly emotional and intense man.  She describes the father as determined in presenting his historical concerns of the mother’s inability or unwillingness to provide a safe and hygienic environment for the children which he felt were previously minimised or dismissed by Victoria Police, the DHS, counsellors within the Men’s Behavioural Change program and Dr D.  She says the majority of his interview comprised in delivering his version of events, predominantly uninterrupted by her.  The narrative was consistent with the account of the relationship provided to Dr D.  He provided various and repetitive examples of the mother’s physical neglect of the children.

2. The father told Ms A he believed his primary role was to obtain employment outside the home while the majority of his time inside the home was consumed by physically renovating the home or relaxing in front of television.  He would spend a maximum of 30 minutes per day with the children prior to 2009/2010 and from 2009/2010 when he commenced (omitted) work until separation in September 2010 he spent limited to no daily time with them.

3. Ms A says that while the father provided his narrative he became progressively more agitated.  He referred to the mother in an increasingly negative and derogatory manner.

4. Ms A says the father admitted to verbally and emotionally abusing the mother, accepted no responsibility for these behaviours and demonstrated limited insight into the impact these behaviours may have had upon the mother and the children. He conceded he pushed the mother away from him in order to leave the room during mutual verbal altercations when he did not wish to communicate with the mother.

5. Mr M attended on a separate day from the family. Ms A says he presented as an intelligent and insightful man.  He told her that he and the mother were engaged and planning upon marrying in Australia in (omitted) 2016.  This was contrary to what the mother told Ms A that she lived alone with the children.  Mr M returned to (country omitted) soon after the interviews.

6. Ms A says that the mother spoke about Mr M in vague terms and implied that there were many reasons the casual relationship may never eventuate into a committed relationship.  She reported that Mr M had a good relationship with the children when he spent time with them.  From what Mr M told Ms A he spent considerable time with X and Z but his relationship with W was more strained.  She suspected that her difficulties in accepting him as a stepfather may stem from her poor relationship and negative experiences with her father.

7. W, aged nearly 13 years when interviewed, presented as an intelligent girl with low emotional maturity.  She identified a particularly close relationship with her mother and said she spent significant time with her maternal grandparents, something confirmed by her mother.  She was seven years of age when her parents separated and she had predominantly negative memories of her father.  She remembered her father rarely interacted with the children.  When he was home he would watch television in a separate room.  She recalled him yelling at her mother and remembered she was fearful when he was home.  She observed her father driving around her high school in 2014 and consequently was fearful of catching public transport in the future.  She did not wish to see her father.

8. X was 10 at the time of interview.  She commenced her interview with Ms A by explaining that a decision had been made between the siblings, her mother and the extended maternal family that they did not wish to spend time with their father.  She was aware that her mother and W are fearful of the father.  She was aware of her father’s history of violence however conceded she has little memory of her father.

9. Ms A describes X as polite, casual and confident.  She believed her mother, maternal grandparents, maternal aunt and uncle and older sister W do not want to see her father.  She stated “we all decided that we were not going to see him”.  She has no memory of her father.  She has a close relationship with her older sister X.  She identified a close relationship with her mother, Mr M and X.

10. Y, 9, is essentially non-verbal and so Ms A did not interview her.  The children said it was primarily the mother and the maternal grandmother’s responsibility to care for them. Ms A notes that Y required extensive one-to-one supervision in the playroom.

11. Ms A observed the children briefly with the mother.  This suggested a casual and positive relationship.  She noted the children were particularly affectionate towards the maternal grandmother.

12. Z presented as happy and active.  She believed that her mother, maternal grandparents, maternal aunt and uncle and older sister W do not want her to see her father.  She stated “we all decided that we weren’t going to see him”.

13. She has no memory of her father as she was approximately 2 years old when her parents separated.  She has a close relationship with her older sister X and has little to do with her older sister W.  She identified a close relationship with her mother, Mr M and X.  She said she may be curious about spending time with her father so long as she was safe and she did not have to see him alone.  She felt this would upset her mother and wider extended family.

14. Ms A states that X and Z have no independent memories, either positive or negative of their father and said that there is an opportunity for them to develop a positive relationship with their father in the future in a safe and structured manner.  She says this will require support and assistance from their mother and their wider maternal family.  She says they may not have the capacity to promote these relationships.

15. Ms A says that her assessment and clarification that the mother was involved in an online relationship with Mr M would suggest that contrary, to Dr D’s assessment, the father’s beliefs of the Facebook behaviour of the mother were not “out of touch with reality” and the father may not have developed a psychiatric condition.

16. When he prepared the second report Dr D had seen the family report and took that into account.  The unreality Dr D considers he saw was the father’s description of the Facebook page about Ms D.  This is separate to the mother’s internet relationship with Mr M to which Ms A refers.

17. Ms A recommends therapeutic counselling and then a determination whether the children should have supervised time with the father.  In her oral evidence she said she could not make an assessment whether supervised time should take place.  She did not believe that therapeutic counselling and some supervised time would mean the children would develop a meaningful relationship with the father but it would mean they would know their origin.  She considered knowing their origin was important for the children.

Conclusion about father

1. Dr D’s assessment of the father as having a psychotic condition is the preferable one.  His assessment is based on what he considers to be the father’s presentation about the mothers Facebook activities.  Dr D said that the father told him of these things at his first presentation but they were not there when he made his assessment when last saw him and on that occasion he did not meet any of the criteria for a psychiatric illness.

2. Dr D saw the father after this assessment.  He said that his assessment did not necessarily depend upon the correctness of what the father was saying but the way the father approached the interview and his state of mind.  When he gave his oral evidence, Dr D had seen the email exchange which the father said he had with Mr M.  Assuming that they occurred as claimed by the father, Dr D considered these emails from the father confirmed the diagnosis.  They showed the same wooliness of thinking.

3. I am satisfied that the mother is not (“omitted”).  I am satisfied that the mother cares for the children properly and does not put them at risk through an untidy house or other activities as the father alleges.  Noteworthy is that the father has made numerous reports between November 2011 and September 2013 to the child protection authorities regarding the children in the care of the mother.  None of them was substantiated.

4. The mother does not present as the sort of person who would organise the type of Facebook page the father describes.  The children’s presentation and the family consultant’s interviews showed them to be well cared for.  I am satisfied that while the father is convinced that the mother is (“omitted”), she is not.  While the truth or otherwise of this is not essential to Dr D’s assessment of the father, if anything, it strengthens of validity of that assessment.

Children’s Provisions

1. Children’s provisions are contained in Part VII of the Family Law Act 1975 (Cth). All parties propose that the mother have sole parental responsibility for the children. That means it is not necessary to consider whether the presumption of equal shared parental responsibility contained in s.61DA is rebutted. Section 65DAA does not apply Section 60B sets out the objects and principles of the children’s provisions and s.60CA provides that the best interests of the children is the paramount consideration. The matters which must be taken into account in determining the children’s best interests are contained in s.60CC

2. The two primary best interest considerations are the benefit to the children of a meaningful relationship with each parent and the need to protect the children from physical or psychological harm.  Both have application in this case.

3. The first of the additional considerations, the children’s views, is relevant, in particular in the case of W, and the relationship the children have with each parent and other people is relevant.

4. The evidence does not permit a finding whether the children will ever have a meaningful relationship with their father.  Ms A proposes therapeutic counselling in an attempt to do this with X and Z and possibly W. Ms A does not propose that should happen with Y.  The evidence does not show any basis for Y establishing a relationship with her father.

5. Ms A’s proposal is that after therapeutic counselling, supervised time be considered in consultation with the counsellor and the Independent Children’s Lawyer.  The difficulty with this is that I am satisfied the mother is most unlikely to agree to supervised time if it is recommended.  Even if there is some prospect of the mother doing so, for the purpose of making a determination of what is in the children’s best interests, I will proceed on the basis that she will not.

6. I do not consider that I can make an order that the children should attend supervised time as recommended by the family therapist.  This might be appropriate in the case of interim orders where further consideration can be given.  The Independent Children’s Lawyer is right to have misgivings about interim orders.  The children’s best interests require finality.  An order for therapeutic counselling followed by another interim hearing would mean for further proceedings and eventually another final hearing.  A best interest consideration is whether it is preferable to make an order that would be least likely to lead to the institution further proceedings in relation to the child.  Apart from this consideration the mother is the children’s carer.  She needs finality.  Her ability to provide for the needs of the children is a best interest consideration.

7. Ms A does not consider that therapeutic counselling would help establish a meaningful relationship between the children and the father.  It would enable them to know something of the origin.  There is no evidence from which I can find that there is a likelihood of this leading to a meaningful relationship between the children and the father.

8. Ms A considered that the barriers within the family which hinder the children from re-establishing relationship with their father.  The mother has consistently advocated there is no benefit in re-establishing a relationship between the children and the father even in a supervised environment.  The children reported they were aware of the mother’s and the extended maternal family’s negative views of the father.  This is a barrier to the children establishing a relationship.  The evidence gives little confidence that the mother will change her views. Ms A considers X and Z may develop similar anxieties and the fears at the prospect of spending time with the father in the same manner as W.

9. W is at an age where her views must be taken into account.  She does not want to see her father.  The evidence does not permit a finding that she will attend counselling even if encouraged by the mother.

10. The father’s proposal does not specifically make the commencement of supervised time dependent upon successful therapeutic counselling but it is inherent in the proposal.  Even if an order requiring the mother to present the children for supervised time if recommended by the therapeutic counsellor was appropriate, there is such a probability that the mother would dispute the recommendation that further proceedings would be likely.

11. An order making the commencement of supervised time dependent upon the opinion of the therapeutic counsellor is fraught with difficulty.  A report which can be placed in evidence before the court and the parties then be given an opportunity to make submissions is one thing.  A report or recommendation that automatically activates a supervised time order is another thing.  The recommendation from the counsellor might have qualifications.  Disputes might come about whether the recommendation does automatically activate the supervised time order.

12. The evidence does not permit a finding that the children can develop a meaningful relationship with their father.  The evidence does not permit a finding that if they have supervised time with their father they will develop a meaningful relationship with him.

13. The second of the primary considerations, the risk factors, is relevant.  There is a risk that if the father spends time the children people he will want to communicate his negative views about the mother to them.  Supervised time can provide substantial protection against this but I cannot be satisfied that the father will not attempt to tell the children about her shortcomings as a mother before being stopped by the supervisor.

14. The father was intent on conveying his views of the mother to Dr D.  He lacked any appreciation that if he wished Dr D to change his assessment this was exactly what he should not do.  Dr D considers he has an undiagnosed psychotic condition and that he is out of touch with reality.  His feelings about the mother are so intense that he might have no appreciation of how expressing those views to the children would be harmful.

15. I am satisfied it is not in the best interests of the children to make any orders for therapeutic counselling orders or that they spend any time with the father.  The evidence does not permit a finding that W and Z can ever have a meaningful relationship with their father, certainly not in the immediate or medium term future.  Y’s physical and mental condition is such that there are no circumstances where the evidence suggests she could develop that relationship.  The evidence shows that attempts to do so may unsettle her and be harmful.

16. In the case of W there is the added consideration that she does not wish to see her father.

17. The children are well cared for by their mother.  Their best interests are served by making no change to the current living arrangements.

18. The mother’s counsel, in final address, said that the mother had no objection to the father sending cards and letters but did not want to disclose her address.  Given the fathers behaviour following separation, the mother’s wish to not disclose her address is understandable and reasonable.  The Independent Children’s Lawyer and the party’s lawyers will cease to be involved once this case is finished.  I cannot see any practical way of formulating an order which would allow cards and letters to be sent.  An order in that form might imply that the mother has to disclose her address.  An order that the mother is not required to disclose her address combined with an order for sending cards and letters would be meaningless unless an address was given.  This would mean the mother would have to give some other address, such as a Post Office Box number and monitor it.  That would interfere with her ability to care for the children.  I do not consider whatever benefit there may be to the children’s best interests in receiving cards and letters to override these considerations.

I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 23 March 2016