Gilliard and Gilliard

FAMILY COURT OF AUSTRALIA

GILLIARD & GILLIARD

[2015] FamCA 18

FAMILY LAW – CHILDREN – Best interests – Magellan list – Parental responsibility – With whom a child lives – With whom a child spends time – Where there are three children of the marriage – Where the younger two children live with the mother and the older child with the father – Where the mother alleges the father has engaged in family violence – Where the father alleges that the mother has hit the children, yelled at the children and pinched their ears – Where the single expert found that the father has some narcissistic personality traits – Where the single expert opined that the father’s reliance on the children to meet his needs for affirmation amounts to emotional abuse of the children – Where the single expert recommended that there should be limits placed on the amount of time the children spend with their father – Where it was found that the father engaged in family violence – Where it was found that the children would not face an unacceptable risk in the care of the mother – Where it is not in the best interests of the children for their parents to share parental responsibility for them – Where it is not in the best interests of the children for parenting arrangements to be put in place that enable a meaningful relationship with both parents – Where the Court is satisfied that the mother has a better capacity to care for the children than the father – Orders made for the mother to have sole parental responsibility and for the children to live with her – Orders made for the children to spend no time with the father for a period of three months before spending short amounts of supervised time with the father, increasing to unsupervised time after six months.

Family Law Act 1975 (Cth) – Part VII, ss 4AB(1), 60B, 60CA, 60CC , 61B, 61C, 61DA, 65AA, 65DAA

Goode and Goode (2006) FLC 93-286
Lansa & Clovelly [2010] FamCA 80
MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Gilliard

RESPONDENT:

Mr Gilliard

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Parramatta Family Law

FILE NUMBER:

PAC

383

2008

DATE DELIVERED:

23 January 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

8, 9, 10 & 11 October and 23 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Saw

SOLICITOR FOR THE APPLICANT:

Law Society of New South Wales

COUNSEL FOR THE RESPONDENT:

Mr Jackson

SOLICITOR FOR THE RESPONDENT:

Rachel Stubbs & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Kennedy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Parramatta Family Law

Orders

That the following parenting orders are made in relation to the children L born … 2002 and, B and S both born … 2005.
That all previous parenting orders are discharged.

Parental Responsibility

That the mother shall have sole parental responsibility for the children.

Live with

That the children shall live with the mother.

Spend time with

That the father shall spend no time with the children for a period of three (3) consecutive months from the making of these orders.
That from the conclusion of the above three month period, the father shall spend time with the children as follows:
a.For the next six (6) months, two hours per month at a supervised contact centre (with the father able to bring extended paternal family also) on Sundays if the centre is available on Sundays;
b.Then from 10.00 am to 1.00 pm on the first Sunday of every month for a period of twelve (12) consecutive months, unsupervised;
c.Then from 10.00 am to 4.00 pm on the first Sunday of every month, unsupervised.

Communication

That the father shall communicate with the children by telephone each Thursday commencing on 19 February 2014 between 8.00 pm and 8.30 pm, and for such periods the mother or another adult as nominated by the mother shall monitor the telephone conversations between the father and the children and each of them.

Changeover

That, except for time spent at the contact centre, for the purposes of changeover, the parents shall meet at the McDonalds family restaurant closest to the suburb at which the mother may be residing.

Therapy / Counselling

That the mother shall, within seven (7) days of the making of these orders, contact her General Practitioner doctor, to obtain an appropriate referral to a clinical psychologist or psychiatrist who specialises in issues surrounding family violence.
That upon the mother obtaining the appropriate referral in compliance with order 9 above, the mother shall thereafter do the following:
a.Contact the therapist and arrange the earliest appointment with the therapist;
b.Provide the therapist with a copy of the report prepared by Dr K dated 8 April 2013 and the therapist is to be able to contact and discuss the family with Dr K prior to the therapy commencing;
c.Commence therapy with the therapist in accordance with the directions of the therapist including arranging attendance of the children as directed by the therapist and until the therapist advises the mother that she and the children are no longer required to attend the therapy; and
d. Meet the costs associated with the therapy.

Restraints

That the father is restrained from discussing with the children and each of them these proceedings or any matter concerning the mother’s parenting of the children.
That the father is restrained from communicating with, telephoning, contacting or attempting to contact the children otherwise than as specified in these orders.
That the father is restrained from communicating with, telephoning, contacting or attempting to contact the mother.
That the father is restrained from attending the school which the children or any of them attend at any time.
That the mother is restrained from physically chastising the children or any of them.
That both parties are restrained from denigrating the other parent or a member of the other parent’s family in the hearing or presence of the children or any of them.

School

That the mother authorise the children's school to send to the father directly, copies of the children's school reports, newsletters, photographs and other material parents are able to have access to, and obtain from, the children's school.

Medical

That the mother notify the father of any significant health issues relating to the children or any of them, or hospitalisation of any of them.

Explanation

That the Independent Children’s Lawyer is to explain to the children forthwith in brief terms and in the form as suggested by Dr K the reasons for these orders.

Costs

That the father shall meet one half of the costs of the Independent Children’s Lawyer, being $5333.90 within three (3) months of the making of these orders.
That no order for costs of the Independent Children’s Lawyer is made against the mother.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilliard & Gilliard 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 SYDNEY

FILE NUMBER: PAC 383 of 2008

Ms Gilliard

Applicant

And

Mr Gilliard

Respondent

REASONS FOR JUDGMENT

Ms Gilliard and Mr Gilliard have been involved in litigation over many years about the parenting arrangements for their children.
For convenience I shall refer to them as “the mother” and “the father”. Their children are L who is 12 years of age and twins B and S who are nine years of age.
Final parenting orders were made on 9 August 2010 by the then Federal Magistrates Court but the arrangements under those orders have broken down. The parents have asked this Court to determine new parenting arrangements in the interests of the children.
The case is complex and has been included in the Court’s Magellan list of cases.

Orders Sought

A copy of each set of minutes of orders sought by each of the parties is annexed for information at Annexure A below.
In summary, the mother seeks that she have the sole parental responsibility for the three children and that they live with her. The mother also seeks that the children spend time with their father for two hours on the first and third Sundays each month at a supervised contact centre, such to continue for two years then increasing to four hours unsupervised from 10.00 am to 2.00 pm on the first Sunday in each month for a further twelve months then increasing to nine hours unsupervised on the same basis. The mother also seeks that the children have telephone communication with their father on Thursdays at 8.00 pm, various restraints and that each party attend parenting courses, counselling and therapy as recommended by Dr K or directed by the Court.
On the other hand the father seeks orders to the effect that the parties have equal shared parental responsibility for the three children, although the mother would be responsible for medical issues. The father seeks different parenting arrangements for the twins compared with those he seeks in relation to L. The father proposes that L live with him but, subject to the mother first completing various courses specified by the father, L live with her initially for three hours after school on Wednesdays increasing after four weeks to five hours after school on Wednesdays and subsequently from after school each Wednesday to before school each Thursday. Over time this is specified to increase to from after school on Monday until before school the following Thursday each week, moving ultimately to a week about arrangement with L living alternate weeks with each parent as well as school holidays as specified.
In relation to B and S the father seeks that for approximately 12 months they would reside with him each alternate Wednesday after school until the following Monday before school and subsequently the children would live with each parent during alternate weeks changing over on Mondays plus shared school holidays and special days as specified. The father proposes that the twins otherwise live with their mother and he seeks various restraints as specified.
The Independent Children’s Lawyer (“ICL”) seeks orders to the effect that the mother have the sole parental responsibility for the children and that the children live with her. The ICL proposes that the father spend no time with the children for a period of nine months after which he have unsupervised time initially three hours once a month for 12 months then six hours once a month for a further 12 months as well as telephone communication between the children and their father each Thursday. The ICL also seeks various restraints and other orders as specified in the minute of orders sought.

Expert Report

Dr K made the following recommendations for final orders in his report dated 8 March 2013:
·Sole parental responsibility to the mother, and the children to live with her.
·Mother to keep the father informed about the children’s education and health.
·Mother be permitted to relocate within Australia provided the new contact details are given to the father.
·Children have very limited but ongoing contact with the father at least until early adolescence, preferably until age 16 (Dr K provides examples of how this may occur).
·Weekly telephone contact with the father.
·Therapy for the mother and children.
·Father to consult a separate therapist, for at least two years.
·Neither parent is to use physical discipline.

Background

The following are the background facts.
The father 46 years and the mother 40 years commenced cohabitation and married in November 1998. They separated on 15 January 2008 and were divorced in September 2011.
L was born in 2002 and is 12 years of age. S and B were both born in 2005 and are nine years of age.
The mother has not re-partnered. The father has entered into a new relationship, his partner being Ms W.
L currently lives with the father. S and B currently live with the mother.
On 14 January 2008 the mother moved into a refuge with the children.
The parties separated on 15 January 2008.
In February 2008 the mother enrolled L at C School.
In March 2008 a final Apprehended Domestic Violence Order (“ADVO”) was made at the Local Court for one year for the mother’s protection against the father. The father unsuccessfully defended the ADVO.
On 17 October 2008 the mother relocated her residence to Suburb D with the children. The mother enrolled L at DD School.
On 14 June 2010 the father failed to return the children to the mother following contact. The police telephoned the father and he returned the children to the mother on 15 June 2010.
On 4 July 2010 the mother took the children on a short overnight holiday to Picton.
In August 2010 the mother began to provide voluntary assistance at the school canteen at DD School.
On 9 August 2010 final parenting orders were made by Federal Magistrate Burchardt. The effect of the orders was that the children were to live with the mother and spend time with the father on alternate weeks from Thursday after school until Monday before school, during special occasions and on alternate weeks during school holidays.
From mid-2010, L began complaining to his father, and his school teacher and principal that the mother had hit him, punched him and pulled his ears. I shall refer in more detail to this matter below.
On 20 December 2010 the father received a telephone call from the mother asking where the children were. The father advised that the children were with him as it was the first week of school holidays.
On 21 December 2010 police conducted a welfare check on the children in response to a complaint by the mother that the father had breached the orders.
On 22 December 2010 the father did not return the children to the mother. Police undertook a welfare check on the children on 23 December 2010 and they were returned on 24 December 2010.
In January 2011 the mother took the children on a short holiday to Kiama for four nights.
In early February 2011 the Principal, Ms F, informed the father that L had complained of being hit by his mother again and recommended that he see the school counsellor. L saw the school counsellor for approximately three months.
On 7 February 2011 the mother filed a contravention application which alleged that the father had contravened the orders dated 9 August 2010 by not collecting the children from the bottom of her driveway.
On 9 March 2011 the final orders were varied by Judge Henderson who ordered that the mother be “restrained from placing any object on her driveway to prevent the father from entering the driveway”. Otherwise, the mother’s contravention application was dismissed.
On 1 May 2011 a speech therapy report was prepared in relation to the twins.
In July 2011 the mother completed a Responsible Service of Alcohol certificate.
In September 2011 the mother began working at Business G in Shopping Centre H.
In October 2011 the mother took the children to a holiday farm for three nights.
On 8 November 2011 L was admitted to J Hospital after experiencing pain urinating. Dr M (a paediatric urologist) performed a circumcision operation on L. The mother paid the doctor’s fees.
At the end of 2011 the father and Ms W commenced a relationship.
In January 2012 the mother obtained her driver’s licence.
Since early 2012 the father has been attending counselling. He has also been counselled by Professor N and Mr O.
On 13 May 2012 the father did not return the children to the mother on Mother's Day. The mother notified Suburb P Police alleging a breach of the orders. The father said that he waited for the mother to pick up the children, but she did not come.
In July 2012 the mother booked a holiday for the children for three nights at the holiday farm.
In early August 2012 L made various complaints to his father about his mother, said that he was scared of her and did not wish to return to her care. I shall refer to these matters in more detail below.
On 6 August 2012 L did not attend school and he has remained in the care of his father since in circumstances to which I shall refer in more detail below.
In August 2012 the mother commenced proceedings in the Federal Magistrates Court for a recovery order for L.
On 8 August 2012 the father took L to Dr Q. L told Dr Q that he was scared of his mother as she pinched his ears and punched his stomach. L was provided with a medical certificate. L was referred to Ms R, child psychologist.
On 14 August 2012 L attended his first appointment with Ms R. He repeated his complaints about his mother to her. L continued to see Ms R once each two to three weeks until approximately late July 2013 when Ms R went on maternity leave
On 16 August 2012 the mother allowed the twins to spend time with the father in accordance with the orders.
On 17 August 2012 the father took the younger two children to see Ms R. He also filed a Notice of Child Abuse or Risk of Child Abuse and Family Violence.
On 20 August 2012 Federal Magistrate Harman appointed an ICL. Interim orders were made that had the effect of L living with his father, and the twins living with their mother.
On 27 August 2012 L was complaining of stomach cramps so he took him to T Medical Centre. L was admitted to U Hospital ED complaining of abdominal pain.
In the first week of September 2012, Ms R referred L to the mental health professional at the Child and Adolescent Mental Health Service (“CAMHS”) at Y Community Mental Health Centre. During the same month L commenced seeing Ms V, child psychologist, as Ms R was on maternity leave.
On 26 September 2012 orders were made by Federal Magistrate Harman appointing Dr K as Single Expert and transferring the proceedings to this Court.
On 5 November 2012 orders were made by consent for the children to spend time with each other, supervised by an agreed supervisor.
On 26 November 2012 the Magellan Report was released.
On 3 January 2013 the Mother called L on the phone provided by the father and was advised by automatic message that the SIM card in the phone had been switched off.
In January 2013 the mother took the twins on a holiday to Batemans Bay.
On 17 January 2013 the mother called L on the phone provided by the father and was again advised that the SIM card had been switched off. The mother phoned four times.
In February 2013 L complained to the teachers that the mother was calling out to him.
In March 2013 the father took L to T Medical Centre and was advised that L was not having asthma issues.
In April 2013 the mother commenced working at Business AA in Suburb BB.
On 2 April 2013 the father took L to the T Medical Centre and L saw Dr CC. L had been attending the school sick bay for two weeks. Dr CC informed the father that L had been hyperventilating, which Dr CC thought had been brought on by the mother’s behaviour. He said he would need to contact the police.
On 18 April 2013 orders were made by Registrar Bartlett for trial directions.
5 May 2013 was the last occasion that the mother spoke to L.
In May 2013 Dr CC advised the father to change L's school.
On 8 May 2013 Dr K completed his single expert report.
On 9 May 2013 the mother was informed by Telstra staff that L's mobile phone had been disconnected due to non-payment of the account.
On 10 May 2013 the mother provided the father with a new number on which to telephone the twins.
On 12 May 2013 the mother did not spend time with L on Mother's Day.
On 15 May 2013 the mother filed her Amended Initiating Application, thus properly commencing these substantive proceedings.
On 20 May 2013 orders were made by this Court. The mother signed an undertaking that she would not speak to L at school.
On 19 June 2013 a letter from Mr O, psychologist, advised that in his view there was no evidence to support a diagnosis of narcissism in the father.

On 7 July 2013 the mother missed a contact visit scheduled for the children.
On 17 July 2013 the mother had a meeting with L's school teacher who indicated that there were difficulties with L’s classwork and homework.
On 27 September 2013 the father filed a Response to Initiating Application.

Trial

I regret that it is now thirteen months since the hearing concluded.
I appreciate that the length of this delay will have been a concern to the parties.
I arranged for my Associate to contact each of the lawyers before Christmas 2014 to indicate that I proposed to publish reasons for judgment and make orders on 23 January 2015. I thought that this would provide sufficient time for any party who wished to make an application for leave to re-open their case to do so. No party sought to do this.
I apologise for this delay which has come about by reason of the responsibility for hearing so many cases in this busy Court.

Credit

The parties have given quite different accounts of important parts of the evidence. Accordingly, in my view, it is important to make some findings about credit.

The mother

On most occasions the mother was responsive in her answers to questions in cross-examination. But in some instances she appeared to have difficulty providing a responsive answer rather than what appeared to be an emotional response.
On a few occasions, particularly when the mother said that she had become scared of the father, including at and shortly after the time of separation, she was sobbing.
Generally, I thought that the mother was genuine in her answers to questions. I did have some concern, however, about the accuracy of her evidence concerning allegations that she had hit L and also B and that she had pinched L’s ears. The mother denied hitting any of the children and yelling at them. She conceded that she had pinched L’s ears on one or two occasions. I had a sense that in respect of the allegations that she had brought physical discipline to the children and in respect of the alleged ear pinching, the mother was minimising her behaviour in this regard. I shall refer to this again below.
Having said this, generally I regarded the mother as a witness of the truth. Where her evidence conflicts with that of the father, generally I prefer the evidence of the mother.

Ms EE

Ms EE is a neighbour of the mother. She gave her evidence in a matter of fact way. I regard Ms EE as being a witness of the truth.

The father

The father had some difficulty giving answers which were responsive to the question. On many occasions he appeared not to be able to resist the need to say things which it appeared to me that he perceived were favourable to his case. At one point he was requested by counsel for the ICL to stop reading a letter by Dr CC but the father clearly found himself unable to do so and insisted on continuing to read the remaining part of the letter aloud. On other occasions the father gave considerable attention to providing a very precise answer. On a few occasions he appeared to be confused by the question.
I would accept that most of the father’s evidence was truthful. But in relation to the mother’s allegations about his controlling behaviours in the home and in the parties’ motor vehicle, which he strongly denied, I do not accept his denials and prefer the evidence of the mother. In my view it is more likely than not that her version is correct. I shall refer to this in more detail below.

Dr CC

Dr CC is a general medical practitioner to whom the father had presented L for medical attention. Dr CC was cross-examined by telephone. He gave his evidence in a forthright manner and I regard him as being a witness of the truth.

Mr FF

Mr FF is a friend of the husband and they are both involved in coaching and managing childrens’ football.
Mr FF gave his evidence in a responsive manner and I regard him as being a witness of the truth.

Ms GG

Ms GG is Mr FF’s partner. Ms GG gave her evidence in a responsive manner and I regard her as a witness of the truth.

Ms R

Ms R is a registered psychologist who had been providing psychological therapy to L between August 2012 and July 2013, when she ceased as a consequence of being pregnant.
I regard Ms R as a truthful witness.

Ms HH

Ms HH is a neighbour of the mother whom she has known for approximately two years. Ms HH has known the father for approximately three years. Her sons JJ and KK attend DD School which the parties’ children also attend.
I regard Ms HH generally to be a truthful witness. But on occasions she showed that she did not always take care with the accuracy of her evidence. She was asked whether she smacked her own children and she gave a variety of different answers. During cross-examination she changed evidence she had previously given on affidavit about the frequency of the mother’s alleged hitting of L. She conceded she had only seen this occur once or twice.
In these circumstances I have reservations about the reliability of her evidence.

Mr LL Gilliard

Mr LL Gilliard is the children’s paternal grandfather. He was responsive in his answers and I regard him as being a witness of the truth.

Ms MM Gilliard

Ms MM Gilliard is the children’s paternal grandmother. She was unavailable for cross-examination and I give little weight to the material in her affidavit.

Dr K

Dr K is the Chapter 15 single expert. He was forthright and responsive in his evidence. I have no hesitation in accepting the truthfulness of his evidence. Where in these Reasons I refer to Dr K’s evidence and views, I accept such unless stated to the contrary.

Submissions

Independent Children’s Lawyer

The submissions on behalf of the ICL were to the following effect.
In relation to parental responsibility the presumption of equal shared parental responsibility is not applicable. Firstly it is rebutted because it is inconsistent with the best interests of the children. Secondly, this is a case involving family violence, therefore the presumption does not apply.
This is a case in which the interests of these children would best be served by an order that the mother have their sole parental responsibility.
In the Federal Magistrates Court judgment of May 2010 the Court observed that it was not possible to stop the father’s obsessive behaviour but the mother’s position could be buttressed by sole parental responsibility. Unfortunately this endeavour at buttressing did not prove to be effective in disrupting the pattern of family violence by the father but as observed by Dr K the mother has maintained her adequacy despite this adverse circumstance.
As Dr K observed, the father’s behaviour towards the mother has shown a pattern of family violence. As Dr K pointed out this is constituted by ongoing emotional abuse, constituted by the father’s relentless criticism of the mother to multiple professionals and in whatever forum he could find including the mother’s presence at school and by him actively seeking out public settings where the children could cling to him or be seen to be prevented from approaching him. Dr K has given a detailed account of the various behaviours of the father which, when put together, demonstrate a pattern of family violence and he refers to the impact of this on the children and the toll of it on their mother.
Turning to the primary considerations in s 60CC(2) it is not possible for these children to be able to have a meaningful relationship with each of their parents. Dr K has indicated that if the children were to live with their mother she would be likely to support their relationship with their father. But on the other hand if they were to live with their father it is unlikely that they would have any relationship with their mother.
Dr K slightly amended his recommendations and this is what the orders sought by the ICL are based on. This includes that for a nine month period there be no time spent between the children and their father.
In relation to s 60CC(2)(b), that is the need to protect the children from physical or psychological harm, abuse, neglect or family violence, Dr K has given considerable attention to this. Amongst other things he said that the children would receive excellent day to day attention to their pragmatic needs in the care of their father. But he said he would be concerned that they would be at risk of depression and disrupted adolescent individuation related to grief at loss of connection with their mother, and to the burden of parentification.
Learned counsel provided detailed submissions in relation to the additional considerations in s 60CC(3). It is unnecessary to set these matters out in detail. Suffice it to say that the weight of these considerations favoured the best interests of the children being served by them living with their mother.
The ICL’s minute of order endeavours to achieve the order which is least likely to lead to the institution of further proceedings in relation to the children.

Mother

Ms Saw, counsel for the mother, endorsed the submissions by the ICL. Learned counsel referred to the reasons of Federal Magistrate Burchardt of 17 May 2010 in the earlier final parenting proceedings and to the father as having been obsessed with what he perceives to be injuries to the children while they are in the mother’s care. His Honour, in his reasons, recommended that the father calm down because his Honour said that children’s bruises and the like are part of childhood. His Honour went on to say that it is not possible to stop the father’s obsessive behaviour but his Honour indicated that the mother’s position could be buttressed by sole responsibility. In the circumstances, his Honour awarded sole parental responsibility to the mother.
In relation to what Dr K described as being the father’s pattern of family violence learned counsel for the mother referred to the changed definition in the Family Law Act 1975 (Cth) (“the Act”) for family violence, namely s 4AB(1) which defines family violence to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. It was submitted that the behaviour which falls within the definition of family violence is not limited to the behaviour in the list of examples given. It was submitted that the definition was intended to cover a wide area of behaviour and encompasses patterns of family violence.
It was submitted that learned counsel for the father had raised with Dr K the fact that during the proceedings before the learned Federal Magistrate the mother’s counsel did not seek an order for sole parental responsibility on the grounds of family violence. It was submitted that what is targeted in the present proceedings is violence which falls within the current definition in the legislation.
In relation to the primary considerations, more weight is to be given to the second of the primary considerations, that is the child protection consideration.
Reference was made to the Family Court family violence best practice principles and the reference to what the family violence provisions are intended to achieve, namely prioritising the safety of children.
Learned counsel confirmed that the mother seeks the orders set out as final orders in her Amended Initiating Application filed 15 May 2013 and these differ from the orders sought by the ICL. If the Court was minded to make an order like that sought by the ICL for the children to have time with their father on Saturdays it was submitted that this would interfere with their extra- curricular sporting activities on Saturdays. The mother’s preference would be for any such order to provide for the children to spend such time on Sundays rather than Saturdays.
In relation to telephone communication, the order sought by the ICL at paragraph 5(c) would require phone calls from 6.00 pm on Thursdays. The children have sporting (football) commitments on Thursdays and the mother would prefer the time for telephone calls to be from 8.00 pm. In any event this would reflect what the parents have been doing for some time, that is telephone communication between the children and the father at 8.00 pm. It was submitted that simply shifting the day would not resolve this matter because the children have their activities on various afternoons of the week.
It was submitted that the Court should not afford weight to the affidavit by the paternal grandmother. This was firstly on the basis that she was unable to appear to be cross-examined in respect of her affidavit. But in any event, it was submitted that she was part of the pattern of the father’s family violence in the sense that she is one of the parties that suggests to the children that they are not safe with their mother and she has failed to encourage a relationship between the children and their mother.
It is clear that the intention of the learned Federal Magistrate in the final orders put in place by him has not been able to be achieved. The preponderance of evidence is in favour of changing the orders to put in place further safeguards to protect the children from the father’s pattern of behaviour. Dr K had expressed concern about an increase in manipulative behaviour by L in particular since the orders of the learned Federal Magistrate were put in place. Accordingly, there is a need to further bolster the parenting arrangements in order to protect the children from the father’s behaviour. Not only has the father continued the former behaviour which had caused concern in the earlier proceedings but he has involved others, namely family friends and the paternal grandparents in his pattern of behaviour which it is clear has been injurious for the children.
In relation to the costs of the ICL the mother seeks a waiver in respect of any contribution by her to such costs. Her financial circumstances are as follows. Firstly, she is being represented in these proceedings through the Law Society’s pro bono scheme. She has made a contribution to counsel’s costs of $5500 including GST. Her income consists of approximately $550 per week Centrelink benefit and approximately $200 - $300 per week from her part time shift work depending on availability of the work. In addition she receives approximately $415 per week child support. Amongst her expenses are rent of approximately $320 per week, fuel approximately $80 per week, electricity approximately $400 per three months, water approximately $200 per three months, food and groceries approximately $250 per week and she has paid half Dr K’s costs in the amount of $7000.

Father

The submissions by learned counsel for the father were to the following effect.
The Court is to keep in mind the objects contained in the parenting provisions of the legislation. That in any parenting order the best interests of the child are paramount.
Turning to the primary considerations the Court would regard it as important for these children to have a meaningful relationship with both parents.
The Full Court decision of Goode and Goode (2006) FLC 93-286 refers to as one relevant factor, the importance of status quo. L has now been in the almost sole care of his father for a considerable period. So orders which would result in a change of residence for L would represent a massive change. An order along the lines of that proposed by Dr K, that is connection only contact between father and child would in effect bring about estrangement of L from his father. Such recommendations are draconian and dramatic and could not be justified in circumstances where the father does not present as an unacceptable risk to the child in that there are no allegations against him of sexual or physical abuse or of lack of parenting capacity.
Such orders would involve there being no opportunity for L to have overnight time with his father nor holiday time and such an order would go completely against the objects of the Act.
These parents are not black and white and it is inappropriate for the ICL to be taking a position to the effect that the father is completely bad and the mother is good.
The basic premise which underpins the recommendations by Dr K is wrong. This is that the father has perpetrated a pattern of significant family violence against the mother primarily and against the children secondarily. The mother sets out the alleged incidents of violence to her in her affidavit. Yet even at its highest such does not amount to a pattern of significant family violence.
There are implausible factors in the mother’s case about violence which would traverse against there having been significant violence. For example, the mother had an AVO which expired in March 2009 yet she did not extend this. Her explanation for not doing so was that she was scared of the father. This is simply implausible. It was also implausible that the mother put bins and other articles in her driveway to make it difficult for the father at changeover, she said because she needed to protect herself from him. This is implausible and the more likely explanation is that the mother was being provocative rather than protective towards herself and shows aggressive behaviour by the mother. Furthermore, in relation to the incident many years ago when the mother said the father tried to get her out of the car, and the father denied this, the mother said that she resisted his endeavours which is not demonstrative of a dominant parent over a submissive parent.
Accordingly, looking at all the relevant evidence, what is before the Court does not constitute a pattern of significant family violence.
Dr K also said that there had been emotional abuse by the father against the three children. In his report Dr K described the father as having made relentless criticism of the mother to multiple professionals yet the father had made only two references to police, one being on the advice of Ms R and the other on the advice of Dr CC. And the Court would find that his actions in going to the police upon such advice as having been reasonable. Any notifications he made after the August 2010 orders have been reasonable and in L’s interests. If the mother was a victim of significant family violence, she has given no explanation for why she did not seek counselling or therapy.
Ms HH gave compelling evidence about things L had told her about his mother. The father was criticised including by Federal Magistrate Burchardt for taking S to Dr A about her eye yet the communication book showed that the mother had instructed the father to do this. Unfortunately this evidence was not presented to Federal Magistrate Burchardt.
The mother herself had made several complaints to the police involving the father where there was no justification for doing so. The first occasion was the June long weekend when the mother simply made a mistake and said she went to the police because she did not want to deal directly with the father. The mother showed no regret about this complaint. The second occasion was in December 2010 when the mother was simply wrong about her interpretation of the orders and again there was no evidence of any regret by the mother. The third occasion reflects the bias of Dr K and his unfair approach to the father. This was the Mother’s Day complaint. The mother had purchased a new car and she understood she was to pick the children up at 10.00 am on Mother’s Day from the father’s home. When the children had not arrived at her home after 70 minutes the mother contacted the police and has expressed no regret about this. Accordingly, it is the mother who often refers matters unnecessarily to authorities.
Dr K shows his bias against the father at paragraph 267 of the report. He says that the events of 13 May 2012 (Mother’s Day) show that the father’s controlling, intrusive, disrespectful and (he would argue) cruel behaviours towards the mother persist and that the mother remains vulnerable to resultant distress and emotional disorganisation. The children were not delivered with the orders. It was submitted that this shows complete bias and an unfair approach to the father.

If the father is subject to criticism it would be in relation to the events of 2008, that is two years before the Federal Magistrate’s final orders are made. There were a number of notifications to authorities made by the father in that year. The ICL cross-examined the father about these at great length. The father said sincerely that he had regrets about the notifications and he was a credible witness. He said he made mistakes years ago and that he’s learned from these mistakes. This is demonstrated by the fact that since 2009 he has made only one notification, that being August 2012 because L did not want to see his mother and the father was seeking advice.
Dr K says that the father has no respect for the mother’s parenting and that in effect he has been sabotaging her relationship with the children relentlessly using authorities and making the mother’s life as difficult as possible. Yet there is nothing to indicate that the father has engaged in any such conduct since 2009. He says that he went to Ms R to attempt to rebuild L’s relationship with the mother. Ms R was unchallenged in her evidence that the father and L were trying to rebuild L’s relationship with his mother. Ms R was working with L to try to put in place a scenario where he would not be scared of his mother. The father has encouraged telephone communication between L and his mother and the mother accepted that there has been reasonable telephone contact between L and her.
The father read a very long text message directed to the mother in which he referred to the importance he saw in L having a relationship with his mother. The father was criticised for not putting this text message in his affidavit by the ICL. This omission shows the sincerity of the SMS message because if the father had only done this for the purpose of obtaining evidence favourable to his case, he would have ensured that it would have been annexed to his affidavit.
The twins have not had any relationship with the paternal grandparents for in excess of 12 months and the mother has failed to facilitate such. In terms of the mother encouraging any relationship between the twins and their father she conceded that she has not assisted the children to send them any birthday cards or presents to their father or had any communication at all.
Dr K said the father has narcissistic personality traits and that the father had a view that he was superior to the mother. Yet the mother showed similar views in her affidavit. For example she said (at paragraphs 93 and 94 of the mother’s affidavit sworn on 28 August 2013) that L had been performing well in her care and that since he had been living with his father he had been performing poorly at school.
The mother was highly critical of the father taking L to a number of doctors. The father would be prepared to have an order to the effect that permits the mother to have sole responsibility for their medical treatment.
The mother was unenthusiastic about accepting that Dr K had said that the father was an excellent parent.
It was suggested that there was a power imbalance between the parents and that the father was in a more powerful position. Yet the mother has been able to obtain ample evidence to support her case from the school principal and teachers.
In relation to the s 60CC matters Dr K accepted that it would be to the children’s benefit to have a meaningful relationship with each of their parents. There was no evidence that the children would be subjected to physical or psychological harm if they were in the care of their father. There was some evidence to support the children having been physically punished by the mother particularly Ms HH’s evidence.
In relation to the children’s views, all children expressed a view that they wanted to have a relationship with each of their parents. How L would cope if his views about wanting to live with his father were ignored is unknown. So far as the children’s relationship with their father is concerned they have a sufficiently close relationship with him for it not to be in their interests for them to be forced not to see him and the same applies in relation to the paternal grandparents.
So far as the effect of L not seeing his father after living with him for such a long period is concerned, one would think this might have an adverse effect.
In relation to the capacity of the parents, both have parenting capacity, the father should be considered to have been acting favourably towards L in his attempts to arrange therapy with Ms R with a view to restoring L’s relationship with his mother.
It could not be said that the father was not child focused or that he did not have a mature and appropriate attitude to parenting particularly in relation to restoring L’s relationship with his mother.
The parents should have equal shared parental responsibility because even though the mother had sole parental responsibility for L, under the care of his father things have been manageable between the parents in relation to L.
In the case of Lansa & Clovelly [2010] FamCA 80; at par 155 Murphy J said that even in a case of intractable conflict where the parents are polarised, “that these children should have the benefit of having each of their polarized parents having input into the major long-term issues affecting them”.
In relation to costs, the proceedings have been quite adversarial. If the ICL’s position is similar to what the Court ultimately determines then costs should be ordered in favour of the ICL. But if the result is similar to what the father is seeking then there should be no costs in favour of the ICL.

Alleged Violence

A key issue in these proceedings is whether the father has engaged in family violence as it is defined in the Act.
Family violence is defined in s 4AB of the Act as follows:
4AB(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
4AB(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a)      an assault; or
(b)      a sexual assault or other sexually abusive behaviour; or
(c)      stalking; or
(d)      repeated derogatory taunts; or
(e)      intentionally damaging or destroying property; or
(f)      intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
Sub-sections 4AB(3) and (4) of the Act set out how a child might be exposed to family violence as follows:
4AB(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
4AB(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The father has denied strongly every one of the allegations made against him by the mother in support of her case that he has been violent and he has denied that he has perpetrated any family violence on the mother or the children.
The first complaint to Community Services was received on 1 October 2005. The Department’s records indicate that an argument between the parties had come to the attention of the police from persons passing by the parties’ motor vehicle at Parramatta. The record included that the parties were yelling at each other in their motor vehicle while the children were in the vehicle.
The mother’s account of this incident was as follows:
30On 1 October 2005 [the father] told me we were all going to The Entrance for the day. He said this around the time I was going to feed and change [S] and [B]. I said to [the father], words to the effect of “I just need to feed and change [S] and [B].” [The father] began to put each of the children in the car, along with other equipment, and said words to the effect of “I’ll just leave without you if you don’t come now.” I got in the car and we started driving. Whilst in the car [S] and [B] started to cry. I asked [the father], words to the effect of “Can we please pull over so if [sic] I can feed and change the twins?” [The father] pulled the car over near the Parramatta River and began to yell at me. I do not remember the details of what [the father] was yelling because I was shocked. He was red in the face, his eyes were bulging and spittle was coming out of his mouth. [The father] then leaned across me, opened my door, unbuckled my seatbelt and tried to push me out of the car with both hands. I resisted and [the father] himself got out of the car through his door. The children were screaming and crying. I shut my door and then attempted to settle [S] and [B] by giving them their dummies and I also tried to calm [L]. [The father] then came back into the car and continued to try and push me out. When [the father] eventually calmed down and stopped physically attacking me and hurling abuse, we both started trying to settle the children. A short time later a policeman knocked on the driver’s side window of the car and asked, words to the effect of “Is everything alright? We had some calls about a possible fight.” [The father] said to the policeman, words to the effect of “It’s OK. She has postnatal depression and there was just a bit of an incident. Everything is fine now.” I did not say anything. We did not end up going to the Entrance.
The New South Wales Police record of this incident notes that a pedestrian had waved down police driving along Marsden Street, Parramatta and informed them that two people were arguing in a parked motor vehicle. The police attended this vehicle and spoke to the driver who was the father. The record notes that while the police were trying to speak to the driver, the female passenger kept on yelling and interrupting police stating that she wanted to go home and feed her babies. The record also notes that the entire time the police were talking to the driver the female passenger continued to yell and stated she just wanted to go home. It was also recorded that the driver informed the police that he had spoken to a doctor recently and believed his wife could possibly be suffering from post natal depression as this sort of behaviour had been occurring over the past three days. It also said that both the driver and the passenger did not have fears for their safety and the children seemed safe and well.
The matter was not investigated by the Department and the case was closed.
The family had a holiday at the Gold Coast in approximately January 2006. The mother said that during the drive there the father would often say out loud words to the effect of “This would be a good spot to leave Mum behind.” The father denied this.
The mother said that in approximately December 2006 the parents put the children in the car to drive around the area where they lived to look at Christmas lights people had put in their homes. The mother gave the following account. The father said to her “You’re not coming.” L said “Is Mum coming?” The father said “We don’t want Mum to come. We don’t need her anymore, OK?” The mother said that she did not accompany them. The father said that this never happened.
The mother said that in approximately January 2007 the father commenced to prevent her from entering their bedroom when she wanted to go to bed. She said sometimes he would push her out and shut the door. The mother said that on these occasions she would usually sleep on the floor of the bedroom of one of the children. The mother also said that on many of these occasions the father would say in effect “Do what I say or I’ll call the police and get rid of you. We don’t need you anymore.” The father said that it never happened.
The mother said that in approximately April 2007 the parents and children were having a holiday in the United States of America. She said that at one point when they were driving, the father said “Hey [L], here would be a great spot to leave Mum behind.” The father denied this.
The mother said that in approximately August 2007 the father was telling her to leave the home. She said that one morning B asked for some juice. She said that when she was about to give him a cup of juice the father grabbed her wrist, took the cup of juice and poured it over her and yelled “Get the fuck out of this house.”. She said that he then threw her clothes into the backyard and started to push her outside.
The mother said that on the same evening the father again threw her clothes into the backyard and again tried to force her outside. She said that he was red in the face, his eyes were bulging and he was yelling at her repeatedly words to the effect of “You fucking bitch. Get out of this house. You fucking bitch.” The mother said that L said in effect “Stop, leave Mum alone.” She said the father kept yelling. The mother said that after a while she put the children to bed and got into her bed. She said that the father pushed her out of the bed and told her he wanted her out of the home by the next morning.
The mother said that the following day the father told her to apologise or he would throw her clothes and belongings out. She said that she began to cry and she apologised to him.
The mother said that in approximately October 2007 the parents and the children went for a drive. She said they had a disagreement about where to go. She said that the father drove to Revesby Park, stopped the car and said “Get out. Get the fuck out now.” The father denied this.
The mother said that in approximately December 2007 the father said to her “Get down on your knees and apologise.” The mother said she asked why and that L said “Dad, leave Mum alone.” She said the father then said “You’re upsetting the boy you fucking cunt.” She said he then yelled repeatedly “Get the fuck out of this house” then said to L “Don’t worry Mum isn’t going to live here anymore.” She said that the father again told her to leave the home.
The mother also said that in approximately December 2007 the family went on a holiday to the Gold Coast. She said that on the way she and the father had a disagreement about where they should stop for a break. She said that the father stopped the car and said “Get the fuck out. We don’t need you anymore.” The father denied this. The mother also said that the children were crying. They continued driving. She said that the father only gave her $50 during that holiday. She also said that the father prevented her from sleeping in the hotel room he had booked.
Having observed the mother and the father cross-examined about these matters I have no hesitation in preferring the evidence of the mother over that of the father about the allegations.
I accept the mother’s assertions as set out above, that she has been the subject of pushing, yelling, swearing, demeaning, threatening, coercive and controlling behaviour as well as repeated derogatory taunts by the father. In my view, such behaviours fall within the definition of family violence in the Act. I also accept that during some of this behaviour by the father the children were present and thereby exposed to family violence perpetrated by the father.
On 14 January 2008 the mother moved into a women’s refuge with the children. An ADVO was granted shortly thereafter for the protection of the mother and children against the father despite the father contesting this. The mother said that she did not feel safe and was scared of the father which is why she moved into the refuge.
Dr K has expressed the clear view that in this case there has been a pattern of family violence perpetrated by the father.
He said that this pattern of family violence relates to the father’s poor interpersonal boundaries, his narcissistic personality style, his lack of empathic awareness, and his coercive behaviour. Dr K said that the father demonstrates attitudes and behaviours typical of family violence perpetrators, these being entitlement, control, superiority, possessiveness, manipulativeness, contradictory statements and behaviours, externalisation of responsibility, denial, minimisation and victim-blaming and confusion of love and abuse. He said that attributes on the above list which are not prominent in the father are selfishness and self-centredness.
Dr K said that in his experience it is common for an individual with superior and entitled attitudes to have a distorted view of their relationship because of that superiority and entitlement, such that they view themselves as the victim and their partner as the person with the problem who needs to change. He said this is the situation with this father. He said that the father felt himself to be carrying the burden of the mother’s inadequacies and to be bearing the brunt of her emotional problems and probable mental illness. He said that the father was blind to his role in precipitating and perpetuating the mother’s distress by, for example, criticising and refusing to eat what the mother had cooked, or insisting on going where he wanted to go on a family weekend outing to the extent of telling the mother to “get out of the car” if she raised objections or alternatives.
Dr K said that the father has poor interpersonal boundaries such that he does not have adequate recognition of each party in the relationship as an individual with their own perspectives and desires. He said that the father also lacks empathic awareness of other persons as individuals with their own perspectives and desires. He said that therefore the father relates in a coercive manner projecting his own views onto the relational space as self-evident truths, rather than pausing to seek to ascertain the views of the other person. He said that in doing so, the father is quite narcissistic and idealistic. He said that the father has a need for superiority, affirmation and admiration. Dr K gives various examples in his report of coercive behaviour by the father towards the mother.
Dr K observed the father to be extremely and purposefully coercive in interpersonal relationships, whilst presenting himself as very reasonable. He said that in his view some of this disparity is a conscious strategy, but much of it is unconscious. He said that is, the father is actually quite an angry and aggressive man but he has an idealised self-image as a very reasonable and kind man, so does not acknowledge his own anger.
Dr K said that in his view, the father’s behaviour towards the mother during the marriage and since has shown a pattern of family violence, with quite severe emotional abuse despite the absence of significant physical abuse. He said that after separation the father’s relentless criticism of the mother to multiple professionals and in whatever forum he could find, including in settings where the mother had a presence as a parent such as the school and swimming school, has represented ongoing emotional abuse. He said that the father is actively seeking out public settings where the children can cling to him, or be seen to be prevented from approaching him, as an extension of that abuse.

Dr K said that the pattern of family violence has impacted on the children also, directly in terms of the father’s emotional abuse of the children, and indirectly in terms of the toll which this abuse has taken on the mother.
Dr K said the difficulty for the mother has been that whilst her lived experience of the father has been of intrusion, abuse, and control and of “you just can’t talk to him … it’s his way and there’s no other way”, his outer persona and expressed intentions are altruistic and reasonable. He said that the surreal and terrifying experience for the victim of this form of emotional abuse is that the experience is so real, but at the same time difficult to describe or pinpoint to others.
Dr K went on to say that in his view the father has been emotionally abusive of the children. He said that he is concerned that the father’s reliance on the children to meet the father’s need for affirmation, and in particular his need for affirmation as “good” in contrast to the mother’s “bad”, amounts to emotional abuse of the children. He said that in particular the father’s recurrent public playing out of the “scene” of the two forms of “clinging” discussed above is emotionally abusive. He said that this emotional abuse is harmful to the children in terms of their emotional day to day well-being, in terms of tearfulness and sadness, and in terms of their character development and future intimate relationships.
Dr K said that it is not his view that the father intends to be emotionally abusive but rather he has failed to heed the warning about the negative impact of his behaviour on the children which was contained in the Reasons for Judgment of Federal Magistrate Burchardt on 17 May 2010.
The father denied that he had ever been violent to the mother and that Dr K is wrong in his assessment in this regard.
There was a vigorous challenge by counsel for the father to Dr K’s opinion that the father has perpetrated family violence on the mother.
Learned counsel referred to Dr K having considered an important part of the father’s behaviour which constituted a pattern of family violence to have been his readiness to make complaints to police, Community Services and health professionals about the mother’s alleged behaviour. Yet counsel noted that the mother herself made three complaints to police about the father. Dr K was asked whether these complaints by the mother could constitute abuse and he agreed that in certain circumstances they could, such as if the complaints were part of a pattern of coercion and disrespect. But he said that one of the mother’s complaints was an honest error on her part thinking wrongly that under the existing orders the children were supposed to be with her at the time. One of the complaints involved the travel arrangements for Mother’s Day and because the mother had obtained a driver’s licence the father said she could assist with transporting the children. Dr K could not remember the third complaint. In any event he said that while the mother had behaved in a defensive and combative way at times such behaviour was nowhere near proportionate with that of the father. He said that if the mother’s behaviour had occurred recurrently and frequently he would be concerned about it, but it has not.
As I have said I prefer the mother’s assertions about these behaviours by the father over his denials. I also accept the thrust of Dr K’s views about the existence of family violence in this case. In my view, despite vigorous cross-examination of Dr K by learned counsel for the father, Dr K’s opinions remain unshaken.
Accordingly, in my view, regrettably this is a case where I am bound to find that there has been family violence perpetrated by the father against the mother and that it is more probable than not that the children have been exposed to family violence.

The Father’s Complaints Against the Mother and Events Leading to L Refusing to Return to his Mother’s Care

In late June 2008 various complaints were made to Community Services alleging that the children had seemed dehydrated and the mother was not meeting their medical and nutritional needs.
Community Services asked the father to provide reports by medical practitioners to support his concerns and he agreed to do so. Yet ultimately Community Services took no further action on these complaints having considered there was insufficient evidence to confirm the allegations.
Similar complaints were made by the father between July and September 2008 despite information provided by two general medical practitioners and a paediatrician to the contrary. Community Services took no further action.
In September 2008 Community Services received a complaint alleging that the mother had been verbally and physically abusive and had pushed the father at a changeover. There were no reported concerns for the safety of the children and no police action was taken.
During October 2008 various complaints were made to Community Services including that the children were being physically and emotionally abused by the mother and alleging that the mother had mental health issues and that she neglects to provide proper medical care for the children. Community Services concluded that there were no concerns for the children’s safety and no further action was required.
In April 2009 S had a small laceration to her eyelid and bruising around her eye. The father said when he asked her what happened she replied that her mother had hit her.
In May 2009 the mother was interviewed by police in relation to an incident at the school on 24 September 2008.
In mid-2009 there were further complaints to Community Services that the mother was neglecting the children.
On 23 January 2010 the police attended the mother’s home to check on the welfare of the children.
In mid-2010 L started ongoing complaints that his mother had hit him, punched him and pulled his ears.
On 24 December 2010, after the father had failed to return the children to the mother and the police attended the father’s home, the father alleged that the mother threatened to say and do whatever she could to stop him seeing the children.
In early February 2011, Ms F, the school principal, informed the father that L had complained about being hit by his mother and recommended he see the school counsellor.
In May 2011 L told his father that the mother hit B, that L tried to call the police and that his mother hit him and pulled his ears.
In May 2011 the mother failed to facilitate the twins undertaking speech therapy.
In May 2011 L told the father that he did not want to attend the school canteen (at which the mother worked) because she kept hitting him.
In late May 2011 a school staff member, Ms E, informed the father that the mother had been informed that the hitting and ear pulling had to stop.
In August 2011 the paternal grandfather said that at football, he heard the mother threaten to pull L’s ears if he came over to the grandfather to play with the puppy, then she said he was not to go over there and she pulled his ears.
In August 2011 Ms X had informed the father that L told her that his mother hit him and pinched his ears.
In September 2011 during the parties’ divorce hearing, the Registrar asked the mother whether she had hit L and pulled and pinched his ears. The mother said it had happened only once or twice.
In September 2011 the school Principal said L had said his mother had hit him and pulled his ears.
In late September 2011 the mother failed to present the twins for x-rays concerning their adenoids.
In October 2011 there were further complaints by the children to their father that the mother had pulled their ears and L said he was scared of his mother.
In approximately October 2011 Ms HH’s son Z went to the mother’s home to play with L but the mother yelled at him and slammed the door in his face collecting his nose. Ms HH also alleged that she saw the mother yell at L and hit him on “numerous” occasions. As indicated above, during cross-examination Ms HH conceded she had seen the mother hit L once or twice.
In October 2011 L was upset at changeover saying he did not want to return to his mother and the mother placed him in a headlock and pulled him away.
Also in October 2011 the mother pulled L by the shirt into the canteen during a dispute about winter jackets. L complained to a parent at the school who notified Community Services.
In late October 2011 L awoke during the night and complained that his mother had punched him twice in the stomach. He made a similar complaint in November in the presence of the paternal grandparents and the principal. The father took L to Dr Q at T Medical Centre and was advised to contact the police. A provisional ADVO issued to protect L against his mother but the ADVO was dismissed in December 2011. Also a letter had been sent to the police from ZZ Women’s Domestic Court Advocacy Service informing them that L was not in his mother’s care at the time of the alleged assaults.
In November 2011 Ms HH said that L was screaming and crying and did not want to go with his mother. She notified the father and the police.
In February 2012 L said his mother had hit him and pulled his ears and he threatened to kill himself.
In February 2012 S awoke at the father’s residence and screamed “mum, stop hitting me”.
In March 2012 the twins complained that their mother pinched their ears and made them cry.
In March 2012 Mr I, a friend of the father said L told him he did not want to return to his mother’s home because she hit the children and pulled their ears two to three times each day.
In late March 2012 B said the mother pinched his ears and made them sore.
In June 2012 Ms HH heard L say to his father that he hated his mother and pleaded not to be sent back to her.
In June 2012 B said his mother pinched his ears and yelled at him.
On 25 July 2012 L told Mr NN, his school teacher, he was scared of his mother and said a similar thing five days later to Ms OO, a parent of a child at L’s school.
On 2 August 2012 L awoke at 11.30 pm distressed and wrote a note that said “No school tomorrow I sick in the stomach and very, very scared, please help.” B said that they were bowling and the mother pulled his ears.
On 3 August 2012 L showed the note to his paternal grandmother. The father took L to the Early Intervention Placement Prevention Program at the QQ Neighbourhood Centre. L said to the program coordinator Ms PP and the father that he was scared of the mother.
On 4 and 5 August 2012 L said to his father that he was scared of going back to school because his mother would collect him in the afternoon and it was not safe being with her.
The father said that on 6 August 2012 on the way to school, L was saying he was scared of his mother and wanted to live with him. The father contacted Ms PP and she said she would contact Community Services. Upon arriving at school the father told L’s teacher and the Principal that L was very upset and said he was scared of his mother and the father showed the notes to the Principal. The father said the Principal told him to take L to the police and to Community Services. The father said Ms PP told him to take L home.
The father spoke to Community Services officers who told him to keep L at home. The father took L to Suburb P Police Station and they referred the matter to Suburb RR Police Station. The father was informed the matter had been referred to the Joint Investigative Response Team. The father said that L refused to attend school that day.
The father said that on 8 August 2012 L told Dr Q that he was scared of his mother, that she pinches his ears and punches him in the stomach. Dr Q then certified L as being unfit for school from 6 – 11 August 2012 due to anxiety. Dr Q referred L to Ms R, child psychologist. L did not attend school for approximately two weeks following 6 August 2012. The father said that he attempted to take L to school every day but L refused saying that if he went to school he was scared his mother would try to take him back into her care.
When L returned to school, on 21 August 2012, there was difficulty. The mother was at the school and L saw her. But he went home with his father after school.
On 23 August 2012 L woke up in a distressed state screaming that he was scared of his mother.
Ms MM Gilliard, the paternal grandmother, said that since L commenced residing with his father he has told her on many occasions that he does not wish to return to reside with his mother and that he is scared of her because she pulls and pinches his ears.
These matters have been the subject of considerable thought by Dr K and also by me. I shall refer to them again below.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Act.
It is common ground that the current form of Part VII of the Act applies to these proceedings. This is on the basis that it was agreed by all parties that the relevant initiating application was the mother’s Amended Initiating Application filed in this Court on 15 May 2013. There was considerable discussion about this matter the details of which it is unnecessary to set out.
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility for the child until such time as the child attains the age of 18 years unless the Court makes an order which alters that parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court case of MRR v GR (2010) 240 CLR 461.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption, subject to exceptions, that it is in the children’s best interests for their parents to have equal shared parental responsibility for them.
I am satisfied however, that the presumption does not apply in this case. This is because, as indicated above, in my view, the father has engaged in family violence. As indicated above the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence.
Each of the parents is seeking orders for sole parental responsibility for the children and for the children to reside with them. The mother has made it clear that there is no possibility of the parents being able to co-operate in parenting the children. The Assistant Principal at the children’s school also expressed the opinion to Dr K that the parents “do not get on, and don’t join together to benefit the children”. I note by way of an example, that when the mother changed L’s school to DD School she did not seek the father’s consent to this.
Dr K thought that shared parental responsibility would be unlikely to be constructive and would likely involve more of the same behaviour by the parents which had previously been played out. He thought it would be harmful for the children and pragmatically difficult for decisions such as schooling.
The 2010 orders provided for the mother to have sole parental responsibility for the children. Dr K thought that for the mother to continue to have this would be “ideal” for the children.
The father said that he thought both he and the mother had equal capacity to care for the children. Yet he also said that, in his view, the mother would not be able to exercise sole parental responsibility subject to the mother having responsibility for medical issues. As indicated above, he advocated for equal shared parental responsibility. As also indicated above, learned counsel for the father referred to Lansa & Clovelly and to Murphy J having ordered equal shared parental responsibility in circumstances where there was apparently intractable conflict between parents. Yet what his Honour also said in that case was that in the past there had been significant co-operation between the parents and apparently some good will. His Honour was also hopeful that the conflict between them would abate.
The present case has none of those characteristics. The parents have been unable to co-operate. There is no goodwill and there is no reason to think that the conflict between them will abate.

The father has been unable to do what Federal Magistrate Burchardt urged him to do, namely to calm down. As indicated above, there has been a continuation of exposure of the children to various authorities and ongoing criticism of the mother to authorities including school officials and others. This has had the consequence of the final parenting orders having broken down and the children now having been living in separate residences for a considerable period. Dr K has said that such arrangements are not in their interests and that the parenting arrangement that would best serve their interests would be one in which they were living together and growing up together.
Clearly the benefit to the children of having a meaningful relationship with both parents has to be considered against the second of the primary considerations. As indicated above, this is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In relation to this matter there are issues in the case of each of the parents.
In the case of the mother there are the numerous complaints that she has hit the children, yelled at the children and pinched their ears. I have referred above to Dr K’s consideration of these matters. It is clear that the complaints have emanated not only from the father but from numerous other persons. As Dr K has observed, the mother has tended to deny the various allegations made against her. I have referred to Dr K’s observations and discussion about such denials. In my view it is more likely than not that there is some truth in at least some of the allegations made.
Dr K has provided a detailed account of what he described as the mother’s vulnerabilities in her parenting, particularly in relation to the measures she uses to discipline the children. Dr K said that most of the mother’s disciplining compliance style is positive, that is she engages with the children, she is pre-emptive, she makes it clear to the children what they are to do and what the sanction will be if they do not. But occasionally when this strategy does not achieve compliance she becomes frustrated to the point where she yells and on occasions she has hit or pulled ears. I accept that Ms HH witnessed one or two such extreme events.
Dr K said that the mother-child relationship presented as thoroughly adequate and “good enough” for the children’s development and as being non-dangerous. He said that in his view it is likely that the extreme events, the subject of the allegations, are rare. He said that the positive aspects of the relationship observed by him did not discount the possibility of significant abuse by the mother but in his view such positive aspects of the mother/children relationship rendered the possibility of abuse as being very unlikely.
Dr K was quite confident about his assessment in this regard. He said that his confidence was because of what he described as the thorough and longitudinal way that he had observed the mother/children relationship, critiqued and tested this. He added that his view was reinforced by observations and views of the Assistant Principal and various doctors concerning the adequacy of the relationship, the Community Services investigation in early 2010, the contested hearing which led to the final orders in August 2010, the police forensic interview of L on 28 December 2011 and his own assessment. He said that his confidence is also reinforced from an awareness that the mother has been maintaining the adequacy of the relationship in what he described as extremely adverse circumstances of the pattern of family violence perpetrated by the father during the parents’ marriage but particularly since separation. He said that considering the intensity of the dysfunction in the father/L relationship, and what he described as the constancy of L’s exposure to that intensity since August 2012, L’s quick warming up to his mother in the session and his subsequent expression when alone that he was now “grey” rather than “black and white” about his parental alliances, Dr K felt was a testament to the underlying strength of the mother/L relationship. He also said that the level of abuse alleged by the father was inconsistent with the general good progress of the children and the (positive) reports about the children including their school reports.
Dr K did, however, express a clear note of caution about the relationship between the children and their mother. He said that in the context of an overall adequacy, there were some vulnerabilities in their relationships. He said that these were firstly in the area of the mother’s disciplinary methods and secondly her propensity for sudden shifts of mood between her usual “happy” persona and her intermittent/intensely angry/aggressive persona and thirdly the manner in which the first and second factors can interact to produce moments of intense maternal verbal and physical aggression which become disconcerting and frightening to the children. I shall refer to these matters again below.
Dr K said that he regarded such vulnerabilities in the mother as being of a magnitude that exists in many parents. He also said that intermittent disjunctions in a parent/child relationship, where a parent lets a child down by being disrespectful or aggressive, and where a child feels distressed or hurt, are relatively common. He said that with this family what has happened is that when the children have brought these disjunctions to the attention of the father, with a comment like “mum pinched my ear”, the father has “grabbed hold” of this fragment of information and amplified it in keeping with his need for parental superiority and exclusive love.
Dr K also said that an important weakness of the mother/children relationship is that the mother feels a need to deny her faults as a parent, and the children fear the mother knowing that they have told Dr K about those faults. He said by way of example that the mother denied to him that she had ever pinched the children’s ears and denied having eruptions of angry frustration or verbal aggression towards a child. Yet L informed him about the pinching of his ears and then appeared anxious as though he had just noticed what he had done and said “Don’t tell mum I told you she pinched my ear”. But Dr K said that in his view the mother’s denial was thoroughly understandable in the context of the past years of critique/blame and intrusion by the father. He said that the mother quite accurately appraises the risk that any acknowledgement of a personal failing may be utilised by the father to threaten her role in raising the children.
He went on to say that the problem with the mother’s denials is that this sets the children up for current and/or future internal conflict regarding the “truth” about their growing up. He also said that because the pulling of the ears, for example, is not acknowledged or spoken of in the mother’s household, this can make the children confused and frightened about whether there might actually be something unspeakably bad about the mother, and more vulnerable to the father’s invitation to amplify the mother’s failings. He said that in their teenage years when the children recall or are informed about the events over these years, they might have a fresh loyalty crisis in terms of recalling the times that mum did pull their ears and asking “so, was dad right all along?” In all these circumstances Dr K suggested that it would be of great benefit for the children for the mother to address such vulnerabilities by way of undertaking family therapy.
I accept this thoughtful opinion by Dr K and do not accept that the children would be at an unacceptable risk in the care of their mother. The other matters which support this finding include the following. The fact that despite all the complaints to Community Services over many years their inquiries have never resulted in Departmental action against the mother. As indicated above, in the context of the father complaining to Community Services that the mother was neglecting the children and not attending to their medical needs, Dr UU, the children’s general medical practitioner informed Community Services that she had been treating the children and that the children were well cared for by their mother. Ms EE, the mother’s neighbour was complimentary about the mother’s capacity and manner towards the children as was Assistant Principal Ms F who described B and S as polite, happy, contented children and said that the children have shown no signs of neglect.
On the other hand, as indicated above, the father has behaved in a manner which constitutes family violence. As indicated above, Dr K said that the children’s relationship with their father involves some restriction at a psychological level, some parentification and associated pseudo maturity. Dr K said that it concerns him that the relationship dynamic between L and his father is such that although L has been living solely with his father and spending no time with his mother, he seems to need to put forward to his father, negativity about his mother which has led to a further degree of disconnection from his mother.
Dr K said that he has a number of concerns about the children. In relation to L, he is concerned that L appears to be developing a pattern of seeking nurture through the currency of raising a fear of his mother and that it is likely that L is habitually turning on parental and grandparental pathos and empathy through voicing a fear of his mother. Secondly, L is developing some emotionally manipulative and coercive patterns of relating to his father, in response to paternal modelling, paternal conditioning attention, and paternal relative neglect of his emotional needs. In relation to all children, he is concerned that they are already developing, and are likely to develop in future, patterns of activating paternal attention/affection through exaggerated true negative affect and coy behaviour, that is, amplified messages of distress at harm or risk of harm from an outside “bad” other (currently mostly the mother), and a helpless plea for help to the “good” father. He said this is a form of anxious-ambivalent insecure attachment style which renders the child vulnerable to ruminating, pessimistic preoccupied mood and coercive emotional and manipulative behaviours in current peer and future intimate relationships. Dr K said that he is concerned that because of the exclusive nature of the father/child relationship it will be necessary for the children to jettison their relationship with their mother. He said he is also concerned about the burden the children will carry to meet paternal psychological need, and the limiting effect of this burden on their development in terms of a free and light exploration of the world and development of their own sense of self.
Dr K said that the father’s reliance on the children to meet his needs for affirmation amounts to emotional abuse of the children. He said that in particular the father’s recurrent public playing out of the two forms of “clinging” referred to above is emotionally abusive. He said that this emotional abuse is harmful to the children in terms of their day to day emotional wellbeing, in terms of tearfulness and sadness and in terms of their character development and future intimate relationships.
I accept Dr K’s opinions in this regard. I am therefore drawn to the finding that while in many respects the father is a very good parent in that he loves his children and at one level can provide well for them, I accept that there are aspects of his behaviour which compromise the emotional and psychological well-being of the children.
I am satisfied that the mother has a better attitude to the responsibilities of parenting and a better parenting capacity than the father, although she is not without her vulnerabilities as Dr K has described her parenting weaknesses. These she will need to address in the interests of the children. And I accept Dr K’s assessment that the mother has a better relationship with the children than has the father. This is hardly surprising in the case of the twins because they have always lived with her. He also said that she is likely to be able to permit and encourage them to have a relationship with their father. As indicated above, Dr K does not think that the father, despite the strong submissions from his counsel otherwise, can be successful at encouraging the children to have a relationship with their mother particularly because of the father’s view that the mother is a poor parent. I accept this.
Dr K expressed the clear view that it would be in the children’s interests for them to be raised together. He said that leaving the children in the care of their separate parents as at present would be preferable to returning to a shared care arrangement. But he expressed a number of concerns. L would miss out on his mother’s empathic and respectful parenting. L might take on a somewhat black and white view of relational matters that could disrupt his ability to form intimate relationships. Also, if L was to rebel in adolescence and become non-compliant with his father’s disciplinary requirements, the father might have difficulty managing him and become aggressive because the situation would have become different from the model he and the children had fallen into in which they had given him a great deal of admiration. He said that a most significant loss would be the loss of the sibling relationship. Also it appeared that L had some intellectual disability and being the elder brother could be good for his self-esteem and interpersonal skills.
In any event, none of the parties is seeking orders which would involve the children living in some separated form. In my view it is clear that the children’s best interests require an arrangement in which they would all live together.
Dr K also said that if L was to remain in his current living arrangement it would be likely that he would not have a relationship of substance with his mother. He would be likely to develop a rather condescending view that she was well-meaning but mentally ill. This would also possibly become his view about women in general.
There must be some concern about the likely effects on L of moving him from his father’s care and returning him to that of his mother. As was submitted by learned counsel for the father, L has been living with his father now for a considerable period and status quo is certainly relevant. But Dr K said during his cross-examination that L has a positive bond with his mother and that putting him back with her in a context where he is not in a loyalty conflict would be appropriate. Dr K said that this would need to be supported by a therapeutic approach to iron out how L and his mother relate to each other because there has been a long gap since they lived together.
When counsel for the ICL asked the mother how she thought L would react to an order that he reside with her she responded that even after all the allegations he has made against her he has not been scared of her and that he had approached her at school.
In all the circumstances, in my view, it would be in the best interests of the children to live with their mother. From what I have said above, it follows that the mother should have sole parental responsibility for the children.
Dr K expressed his view that there should be real limits placed on the amount of time the children spend with their father. He thought that the fact that the father has not been able to comply with the orders of the Federal Magistrates Court demonstrates that the father is very likely to use whatever time he has with the children to “wedge” more time with them and there is a danger that if the time is not limited then all the old dynamics involved in the children behaving in a manner to fulfil the father’s needs would resume which would have the risk of undermining the children’s relationship with their mother. He said that this would be emotionally abusive.
Having said this Dr K also thought that not to order some time between the children and their father would “break the thread of connection to adulthood” which he said would be a potential loss for the children. I accept the general thrust of this opinion and accept that somewhat of a balancing act is required to arrive at arrangements in the best interests of the children.
The mother seeks time spent between the children and their father to be at a supervised contact centre for two years then increasing unsupervised as indicated above.
The father seeks that ultimately there be a week about parenting arrangement and in the meantime orders as set out above.
The ICL seeks orders which would require the children to have no time with their father for nine months after which time he would spend unsupervised time with them once a month. Initially this would be three hours for 12 months, then six hours.
I am not persuaded that to stop all time between the children and their father for a period as long as nine months would be in their interests. Having said this, Dr K’s recommendations in his report involved two hours contact at a supervised contact centre each two months. I infer this would involve the children not seeing their father for two months.
In my view, given all the complications and what will likely be distress for L as well as a significant change for all family members, it would be helpful for there to be a settling down period for the new arrangements. In my view, nine months is much too long. I propose this period be three months. Hopefully this will also enable family therapy to have a supportive and settling effect.
I also accept Dr K’s recommendation that it would be better for the children to spend time with their paternal grandparents when they are doing this with their father as distinct from the paternal grandparents having separate time with the children.

Costs

The ICL made an application that each of the parents pay one half of their costs.
Ms Saw for the mother gave a summary of the mother’s financial circumstances. In my view, the mother’s financial circumstances are such that it would not be just within the meaning of s 117(2) of the Act to order the mother to contribute to the costs of the ICL.
In relation to the ICL’s costs application against the father, there was almost nothing before the Court in relation to his financial circumstances. But he is self-employed and works full-time. It was not submitted that he could not afford to pay one-half of the ICL’s costs.
This is a complex case and it was most appropriate that the children and the Court were assisted by an ICL.
In all the circumstances in my view it is just for an order to be made that the father pay one-half of the costs of the ICL.

Restraints

Dr K recommended that each of the parents be the subject of restraining orders in the best interests of the children and I accept his recommendations.

Filial Training

The father sought an order that the mother complete “the Filial training course”. I do not propose to make such an order for the reason that I accept Dr K’s opinion that such a course would not be likely to be of assistance to the mother.

Therapy / Counselling

Dr K recommended that each of the parents participate in therapy / counselling and I propose to include orders to provide for the mother to do this. I do not propose to require the mother to undertake anger management as sought by the father but envisage that this might form part of her required therapy.

Orders

Dr K thought it would be helpful for the children to receive an explanation about why these particular orders have been made. He said that this could be done either by the ICL or by the therapist who would be assisting the children and the mother. He said a similar model to that set out at paragraph 318.3 of his Report could be used. He said that the children be told that the way their father had been behaving in relation to their relationship with their mother is wrong and that they will be having limited time with him. The therapist would tell them that she/he can help them adapt to this.

I certify that the preceding three hundred and seventy-five (375) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 23 January 2015.

Associate:

Date: 23 January 2015

Annexure A
Minutes of Orders Sought by the parties
MOTHER

The mother have sole parental responsibility for [L] born … 2002, [B] and [S] born … 2005 (hereafter “the children”).
The children live with the mother.
The children spend time with the father as follows:-
(a)For 2 years, commencing the first Sunday in the month after the date of these Orders:
(i)From 10:00am to 12:00pm on the first and third Sundays of each calendar month at a supervised contact centre.
(ii)The father is permitted to attend with members of his extended family.
(iii)The children are permitted to receive and send birthday, Christmas and Father's Day gifts.
(iv)The father is restrained from attending the children's school and sporting events, and extra-curricular activities in which the children participate.
(v)That contact centre staff be made aware of these orders, including Order 8, and act as deemed appropriate by the contact centre staff if the father and/or paternal extended family ventures beyond that scope.
(b)For a further year, commencing 2 years after the date of these Orders, for four hours unsupervised on the first Sunday each calendar month, with the mother to deliver the children to the contact centre at 10:00am and the father to return the children to the contact centre at 2:00pm.
(c)Commencing 3 years after the date of these Orders, until [L] is 16 years of age, for nine (9) hours unsupervised on the first Sunday of each calendar month, with the mother to deliver the children at 10:00am at the contact centre and the father to return the children to the contact centre at 7:00pm.
(d)From when [L] is 16 years of age, the father is permitted to attend sporting events if this attendance is sought by the children and the mother deems it appropriate.
(e)From when each child reaches the age of 16 years, each child is to spend time with the father as requested by that child and as the Mother deems appropriate.
The father shall not permit the children access to mobile phones and communication devices without the consent of the mother.
The father shall not permit the children to have living creatures as pets without the consent of the mother.
Commencing the first Thursday after the date of these orders, the children shall have weekly telephone communication with the father at 8:00pm every Thursday. The mother will initiate (or will allow an adult delegate of the mother to initiate) the telephone call, encourage all three children to speak with the father, put the telephone on speakerphone and monitor the conversation.
Neither the mother nor the father shall denigrate or criticise the other or allow third parties to do so, in the presence or hearing of the children.
During any period of spending time with the children or communicating with the children by telephone, the father is not to, and will not allow a member of his extended family to, interrogate, comment on or criticise any aspect of the mother's household, nor to encourage, comment or appeal to the children regarding the “live with/spend time with” and “communication” arrangements.
The mother is authorised to and is permitted to allow an adult delegate of the mother to, interrupt, cut short communication or otherwise take appropriate action as deemed appropriate, during a telephone communication call, where the father (and/or any member of his extended family) criticises, denigrates or insults the mother (or people associated with her), or interrogates, comments or criticises aspects of the mother's household, or encourages, comments or appeals to the children regarding the “live with/spend time with” and “communication” arrangements.
(i)The mother may employ a silent telephone number if she deems this appropriate.
The father is to return the Communication Book to the mother via the children at the first occasion of supervised time between the children and the father. The Communication Book is to be utilised for informing the father about the children's education, health and medical issues, contact details, and any other matters relevant to the parenting of the children. The father is to return the Communication Book via the children on each occasion that he spends time with the children.
In the event that the mother relocates within Australia, the mother is to inform the father of her new address.
The children are to remain on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
Each party is to notify the other as soon as practicable of any serious medical condition resulting in hospitalisation of the children.
The father is restrained from contacting the children or the mother at the mother's household or workplace outside of the times stipulated in these orders for the father to spend time with and communicate with the children.
Neither parent is to use, or permit a third party to use, any form of physical discipline such as smacking, punching or pinching.
Each party is to attend parenting courses, counselling and/or therapy as recommended by the Single Expert Report or otherwise directed by the Court.
The father is to deliver to the mother via the children at the first supervised contact, suitably packaged, all components of their clothing, footwear, school uniform, sporting apparel, related equipment, school books and homework.

FATHER
Parental Responsibility

That subject to paragraph 2 below, the parties have equal shared parental responsibility for the children, (“the children”): [L] born … 2002 (“[L]”); [B] born … 2005 (“[B]”); and [S] (“[S]”) born … 2005, (the latter two being the twins).
From 1^st July 2014, that save and except medical emergencies, the mother be responsible for the children’s medical issues.

[B] and [S]

That the twins children live with the father for the following periods:
3.1Until the commencement of the school year 2015, during school periods every alternative Wednesday after school, until the following Monday before school;
3.2From the commencement of the school year 2015, each alternative Monday until the following Monday during school term;
3.3One half of the school holidays, with the weekend times as being referred to in sub-paragraph 3.1 being suspended during such holiday periods;
3.3.1One half of the school holidays at the end of Terms 2 and 3 to begin in odd numbered years on the last day of school, after school, and conclude on the second Saturday of such holidays at 5.30pm; and begin in even numbered years on the second Saturday of such holidays at 5.30pm and conclude on the last day of such holidays, (being the day before the commencement of school) at 5.30pm;
3.3.2The second half of the school holidays at the end of Term 1, to begin on the second Saturday of such holidays at 5.30pm and conclude on the last day of such holidays, (being the day before the commencement of school) at 5.30pm;
3.3.3During the summer school holidays in even numbered years, from the last day of school term 4 for the first half of the holidays ceasing on 9 January at 10am, with the mother to have the second half of the school holidays and return the children to school at the start of the new school year;
3.3.4During the summer school holidays in odd numbered years, from 9 January at 10am, ceasing at the end of such school holidays, with the father to return the children to school at the start of the new school year;
3.4On Father’s Day if it not a period that the children are otherwise with the Father, from 10am until the following Monday;
3.5At Christmas from 3pm Christmas Eve until 3pm Christmas Day in odd numbered years; and from 3pm Christmas Day until 3pm Boxing Day in even numbered years;
3.6At Easters should Easter fall outside the school holidays: from 5.30pm Easter Saturday to 5.30pm, Easter Monday in odd numbered years; and from 5.30pm Easter Thursday to 5.30pm Easter Saturday in even numbered years;
3.7That in odd numbered years commencing in 2013 the father shall spend three hours with all of the children on each of their birthdays from after school to 6pm, if the birthday falls on a school day and from 1pm to 6pm if the birthday does not fall on a school day.
That the children live with the mother for all other periods.
The Father’s time with the children be suspended from 3pm Christmas Day to 3pm Boxing Day in odd numbered years, and from 3pm on Christmas Eve until 3pm on Christmas Day in even numbered years.
Should Mother’s Day arise on a weekend that the children are otherwise with the Father, then the Father’s time with the children will cease at 10am on Mother’s Day and resume at 4pm on Mother’s Day.
If the children’s school is not available for changeover, the changeover shall be the McDonald’s restaurant at [Suburb WW].

[L]

That [L] live with the father for all periods other than the periods set out in paragraphs 12-16 inclusive below.
That the mother completes an Anger Management course.
That the mother completes a Level 4 Triple P course.
That the mother completes the Filial training course.
That [L] live with the mother:
a.To commence at the start of the 2014 second school term, for four weeks, each Wednesday from 3pm until 6pm:
-Thereafter, for a further four weeks, each Wednesday from 3pm until 8pm.
b.To commence at the start of the 2014 third school term for a further four weeks, from after school on every Wednesday after school until the following Thursday morning:
-Thereafter, for a further four weeks, each Tuesday after school until the following Thursday morning.
c.To commence at the start of the 2014 fourth school term in the alternative week, from Monday after school until the following Thursday morning.
From the commencement of the school year 2015, each alternative Monday until the following Monday during school term.
From the conclusion of the fourth term in the school year 2014, one half the school holidays, with the weekend times as being referred to in paragraphs 12 and 13 being suspended during such holiday periods.
One half of the school holidays at the end of Terms 2 and 3 to begin in even numbered years on the last day of school, after school, and conclude on the second Saturday of such holidays at 5.30pm; and begin in odd numbered years on the second Saturday of such holidays at 5.30pm and conclude on the last day of such holidays, (being the day before the commencement of school) at 5.30pm.
The second half of the school holidays at the end of Term 1, to begin on the second Saturday of such holidays at 5.30pm and conclude on the last day of such holidays, (being the day before the commencement of school) at 5.30pm.

16A.During the summer school holidays in odd numbered years, from the last day of school term 4 for the first half of the holidays ceasing on 9 January at 10am with the father to have the second half of the school holidays, and return the children to school at the start of the new school year.
16B.During the summer school holidays in even numbered years from 9 January at 10am ceasing at the end of such school holidays, with the father to return the children to school at the start of the new school year.
Specific issue orders referable to the children

That the mother not be permitted to attend the children’s school during the changeover set out in paragraphs 3 and 12-16, 16A, 16B inclusive above.
That the father not be permitted to attend the children’s school except to facilitate the changeover as set in paragraphs 3 and 12-16 inclusive, and any special occasions where the parents are invited such as concerts, P and C meetings and school assemblies where any of the children are to receive an award or a prize.
The parties shall each use a communication book in relation to noting relevant details of the children’s medical and school needs, as well as their extracurricular activities.
When the children are otherwise not with their father, that the father shall communicate the children by telephone as follows:
a.On Wednesdays between 6.30pm and 7.00pm;
b.On Sundays between 6.30pm and 7.00pm, and the mother shall cause and encourage the children to ring the father during these above times.
When the children are otherwise not with their mother, that the mother shall communicate the children by telephone as follows:
a.On Sundays between 6.30pm and 7.00pm;
b.On the children’s birthday between 6.30pm and 7.00pm, and the father shall cause and encourage the children to ring the mother during these above times.
That the father and mother henceforth provide to the other party all proper particulars of his/her residential address, mobile telephone, phone, email, contactable Skype details, and further that each party henceforth provide to the other party not less than 28 days’ written notice of any change of residential address.
That the parties provide to the other not less than 28 days’ written notice of any proposed change to their respective living arrangements including but not limited to any proposal for a person to commence living in the same residence as the mother or father and the children, whether that person be a friend, relative, partner, tenant or any other person.
That each party notify the other of any serious illness suffered by any of the children (and provide a medical certificate), and immediately it is practicable to do so of any emergency admission to hospital or injury suffered by … whilst in the care of the other party.
That each party be restrained from denigrating or criticising the other party in the presence of the children.
That other than in the event of an emergency, the parties shall communicate with each other in relation to any variation of contact arrangements to the other not less than 48 hours prior to the relevant contact period.
The parties give all consents and authorities to allow the schools of the children to provide to the other parent any school photographs, reports, notices or newsletters specific to the children.
During changeover, each party is restrained from taking photographs or video recordings or allowing third parties to take photographs or video recordings.

INDEPENDENT CHILDREN’S LAWYER

That all previous parenting orders in relation to the children:
a. [L] born … 2002;
b. [B] and [S] born … 2005
are discharged.

Live with / parental responsibility / spend time with

The children live with the Mother.
The Mother have sole parental responsibility for the children [L] born … 2002, [B] born … 2005 and [S] born … 2005.
That the Father spend no time with the children for a period of nine (9) consecutive months from the making of these orders.
That after the cessation of the period set out in order 4 above, the father spend time with the children as follows:
a.From 10am to 1 pm the first Saturday of every month for a period of twelve (12) consecutive months;
b.From the conclusion of the period set out in order 5(a) above and for a period of a further twelve (12) months from 10am to 4pm Saturday the first weekend of every month;
c.By telephone each Thursday commencing the first Thursday in August of calendar year 2014, between 6pm and 6.30pm, and for such periods the Mother or another adult as nominated by the Mother shall monitor the telephone conversations between the Father and the children and each of them.
That for the purpose of changeover, the parents shall meet at the McDonald's family restaurant closest to the suburb at which the Mother may be residing.

Therapy / Counselling

That the Mother shall, within seven (7) days of the making of these Orders, contact her General Practitioner, to obtain an appropriate referral to a clinical psychologist or psychiatrist who specialises in issues surrounding family violence.
That upon the Mother obtaining the appropriate referral in compliance with Order 6 above, the Mother shall thereafter do the following:
a.Contact the therapist and arrange the earliest appointment with the therapist;
b.Provide the family therapist with a copy of the family report prepared by Dr [K] dated 8 April 2013 and the therapist is to be able to contact and discuss the family with Dr [K] prior to the therapy commencing;
c.Commence therapy with the therapist in accordance with the directions of the therapist and until the therapist advises the Mother that she and the children are no longer required to attend the therapy; and
d. Meet the costs associated with the therapy.

Restraints

That the Father be restrained by injunction from communicating with, telephoning, contacting or attempting to contact the children, unless as is otherwise specified in these orders.
That the Father be restrained by injunction from communicating with, telephoning, contacting or attempting to contact the Mother.
That the Father be restrained by injunction from attending the school the children or any of them at any time.
That the Mother is hereby restrained from physically chastising the children or any of them.
Both parties are hereby restrained from denigrating the other parent or a member of the other parents family in the hearing or presence of the children or any of them.

Communication

That the Mother authorise the children's school to send to the Father directly copies of the children's school report, newsletters, photographs and other sources and material parents are able to access and obtain from the children's school.
That the Mother notify the Father of any significant health issues relating to the children or any of them or in the event that the children or any of them become hospitalised.

Costs

That the Mother and the Father shall each meet one half of the costs of the Independent Children's Lawyer, being $5, 333.90 each parent, within 3 months of the making of these orders.

[2015] FamCA 18

23 January 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Remedies

Injunction