Hellas and Charters

[2018] FamCA 342

FAMILY COURT OF AUSTRALIA

HELLAS & CHARTERS [2018] FamCA 342

FAMILY LAW – CHILDREN – Best interests – with whom the children live – where the parties separated in May 2013 when the children were aged 1 and 4 – where the children did not see their father between May 2013 and September 2016 – where consent orders were made in October 2015 providing that the father have supervised time with the children for two hours a week – where the father spent supervised time with the children between September 2016 and May 2017 – where the supervised visits were suspended by the contact centre – where the father has not spent any time with the children since May 2017 – where the mother has not facilitated the children spending time with the father – where it is highly likely the children would be exposed to an unacceptable risk of suffering psychological harm if exposed to the father’s current views – where the mother is granted sole parental responsibility – where it is ordered the children spend no time with the father unless agreed between the parents in writing.

Family Law Act 1975 (Cth)

Banks v Banks (2015) FLC 93-637
Cox v Pedrana (2013) FLC 93-537

APPLICANT: Mr Hellas

RESPONDENT: Ms Charters

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 10089 of 2014

DATE DELIVERED: 18 May 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 17 and 18 April 2018 and 2 May 2018

REPRESENTATION

APPLICANT:	In person
RESPONDENT:	In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous orders are discharged.

2. The children, B, born … 2009, and C, born … 2012, live with the mother.

3. The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in respect of the children.

4. The children spend no time with the father unless agreed between the parents in writing.

5. The father is at liberty to send letters, cards and/or gifts to the children to an address nominated by the mother and, to give effect to this Order, the mother shall, within 14 days of the date of this Order, by correspondence directed to PO Box …, Suburb D QLD … and by correspondence emailed to the father at … nominate such address in writing to the father.

6. In the event that the father sends letters, cards and/or gifts to the children to the address nominated by the mother, the mother:

   (a)shall be at liberty to ascertain whether such letters, cards and/or gifts are appropriate; and

   (b)provided that they are appropriate, shall thereafter provide any such letters, cards and/or gifts to the children within 48 hours of their receipt; and

   (c)shall notify the father within 48 hours of receipt of any letters, cards and/or gifts for the children that she has either given the same to the children or determined not to provide them to the children, in which case her notification of this decision shall contain an explanation of all of her reasons for deciding not to provide the letters, cards and/or gifts to the children.

7. The Independent Children’s Lawyer is discharged.

8. All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.

9. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC10089 of 2014

Mr Hellas

Applicant

And

Ms Charters

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The father was born in 1964 and is currently 53 years of age. He has six children, four of whom are adults: Mr E (born in 1987); Mr F (born in 1992); Mr G (born in 1994) and Mr H (born in 1996).

2. Mr E, Mr F and Mr G are the product of the father’s first marriage (to Ms J). Mr H is the product of the father’s relationship with Ms K. The father told Ms L in late August 2015 that he has had no contact with Mr H since 2007.  He said he did not have any communication with Mr E and Mr F after October 2009 and did not have any communication with Mr G after 2013.

3. The children the subject of these proceedings – B, born in 2009 (about eight and half years of age) and C, born in 2012 (about six years of age) – are the father’s two youngest children.

4. The mother and father commenced a relationship in 2006 and reportedly started to cohabit in about December 2006. They separated in about mid May 2013.  Between the date of the parental separation and 28 August 2015 (when Ms L, the author of two Family Reports, first interviewed the parties and children), the children did not spend any time with, nor did they have any contact with, their father.

5. The mother was born in 1973.  She has an adult son from a previous relationship: Mr M, born in 1997.  She is currently married to Mr N (who is 48 years of age).  She and Mr N met on 11 July 2014 and commenced cohabitation towards the end of that year; they became engaged on 11 July 2017 and married in 2018.

6. The mother, Mr N, Mr M, B and C live together at O Town. They are joined there on weekends by Mr N’s children from a previous relationship: P (born in 2005 and about 12 years of age) and Q (born in 2007 and who is 11 years of age).

7. The mother says she believes the father commenced proceedings for parenting orders when he found out about her relationship with Mr N. She advances this because she says she did not hear from him at all between separation and when she was served with his Application for parenting orders on 10 December 2014.

Previous parenting orders  

1. On 6 February 2015, an Order was made that the children live with the mother and spend no time or communicate with the father.

2. Further parenting Orders were made by consent on 28 October 2015: these provided that the father have supervised time with the children for two hours a week on a weekend day at a Contact Centre; the father was to attend upon his general practitioner for a referral to a mental health professional in relation to his history of poor attention span, impaired judgement and impulsivity to determine whether he has a treatable mental health condition; he was also to attend personal counselling to assist with issues around his past and present personal relationships, boundaries and modelling appropriate adult behaviours; and the father was to attend a Triple P parenting program.

3. An Order made by Registrar Stoneham on 6 September 2016 contains a Notation to the effect that all parties agreed that substantial time be allowed by the Contact Centre for the commencement of supervised time between the children and their father, given that they had not spent time with him for a period of more than three years.

Broad overview of the children’s time with their father

1. According to the information provided by the father to Ms L (the Family Report Writer) in September 2017, he first saw the children at the Contact Centre on 10 September 2016.  He told Ms L in September 2017 that the time at the Contact Centre (which was every Saturday between 8.00 am and 10.00 am) ceased in May 2017 because “The kids are instructed by their mum [Ms Charters], the kids are told to spit, kick, cry and scream”.[1]

   [1] Family Report dated 24 November 2017 at [46].

2. The reality is that the children have not spent any time with their father since May 2017.

3. On 8 June 2017, the mother filed an Application in a Case by which she sought suspension or discharge of the Order for the children to spend supervised time with their father; she also sought that he have no contact with them pending a number of specified events which included that the children be interviewed to determine their wishes; that the children receive expert psychological assessment to see if they needed counselling; that an updated Family Report be prepared; that the Independent Children’s Lawyer obtain an affidavit from the supervisor at the Contact Centre to report on the contact and obtain an affidavit from teachers at R School about C’s progress there (with this to encapsulate any reports about any noticeable or identifiable behavioural issues which have occurred since his time with his father started in September 2016).

The competing proposals

The father

1. The father’s final proposal[2] was that there should be a “50%/50% shared parenting custody arrangement” and that he be able to participate in long-term decision making in relation to the children’s education and health.[3]

   [2] Affidavit of the father filed 1 May 2018 at [1].

   [3] Affidavit of the father filed 1 May 2018 at [3].

The mother

1. The mother’s position is that the children should not spend any time at all with their father. She advances that any interaction with him is not in their best interests.  She says the children do not want to see him and that the supervised visits upset the children to the point where they presented as a danger to the supervisor, to the father and to themselves.  She advances that the children’s views – which she asserts have been formed independently of any influence from within her household – should be taken into consideration.

2. The mother considers that the time the children have spent with their father has caused both of them emotional distress and resulted in C suffering anxiety. She says the children were forcibly placed through the door at the Contact Centre and locked inside against their will and that they will suffer psychological harm if they are required to participate in such a process again in the future.

3. Her submission was that, if supervised time between the children and their father was ordered again, “we are going to see exactly the same result”[4] as has occurred during the supervised time to date.

   [4] Mother’s closing submissions at [45].

4. I accept this as highly likely because it is clear that the mother and her husband are implacably opposed to the children spending any time at all with their father: the mother’s opposition has remained resolute and unchanging – her attitude to the fact of supervised time occurring was, I consider, as expressed to a friend of hers in a text sent on 19 August 2016 (about one month before the children’s first supervised visit with their father) when she clearly said:

   Had fucked week, lost court; he has access-supervised now. Trying to work out how to stop it.[5]

   [5] Affidavit of father filed 5 July 2017 at page 74.

5. The mother’s evidence is that, during the period when the children were spending supervised time with their father, C’s schoolwork suffered, he began to show signs of severe separation anxiety and had a number of outbursts at school (which included an occasion on which he hit two of the teachers and destroyed a reading room).  She said she was concerned that, if the children were ever left alone with the father, he would take them or harm them by way of retribution directed toward her.  She considers the father applied for parenting orders because he had lost control of her and he wanted to continue the “mental abuse” she alleges he inflicted on her during their relationship.

6. The mother says she has always been the children’s primary carer.  She says this was the case even when she worked full-time, as she was responsible for engaging and remunerating a full-time nanny.  She alleges that, at this time, the father spent most of his time on the phone, embroiled in his litigation with one of his adult sons.

7. The mother also asserts that the father did not seek out a relationship with the children on a consistent basis after the parental separation; she says that it is now about 11 months since the children have had anything to do with their father; they do not want to see him or spend time with him and their wishes should be heard.

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer submitted after the conclusion of the evidence that it was in the children’s best interests that they live with their mother; that she have sole parental responsibility for them; that they spend time with their father as agreed between the parents in writing and that the father be at liberty to send letters, cards and gifts to the children via an address nominated by the mother.

PRINCIPLES

1. I may, subject to s 61DA,[6] s 65DAB and Division 6 of Part VII of the Family Law Act1975 (Cth)(“the Act”), make such parenting order as I think proper. In determining what parenting order is proper, I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[7]  Further, in deciding whether to make a parenting order and the terms of the same, I must regard the children’s best interests as the paramount consideration.[8]

   [6] The presumption of equal shared parental responsibility.

   [7] Section 60B of the Family Law Act 1975 (Cth).

   [8] Sections 60CA and s 65AA of the Family Law Act 1975 (Cth).

2. Whilst the matters to be considered in determining those parenting orders which are in the children’s best interests are as prescribed by s 60CC of the Act, it is unnecessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[9]  Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in the children’s best interests.  I have considered all of the relevant considerations in arising at my conclusion about those orders which are in the children’s best interests.

   [9] Banks v Banks (2015) FLC 93-637.

The benefit to the children of having a meaningful relationship with both of their parents

1. I accept that, were their mother’s attitude to the father different and were the father’s current functioning different, it may well be beneficial for the children to have the opportunity to see whether they could develop a meaningful relationship with their father – if for no other reason than to have the opportunity to answer what I suspect, as highly likely, may be future queries about him.

2. Unfortunately for the children, their opportunity to determine whether a relationship with their father has any benefits for them individually has been completely undermined by their mother and her husband (who has not even really interacted with, or spoken to, the father in any meaningful sense). In my view, both have actively worked to ensure that the children’s supervised time with the father has proceeded in the manner that it has and that it has broken down.

3. I am easily persuaded that, despite manifesting ostensible (albeit grudging) support for the children spending supervised time with their father, the true position of the mother’s household has remained as was expressed during the first Family Report interviews in 2015; namely, in summary, that the mother wants the children to have nothing to do with their father, that there are no benefits at all to them having any relationship with him and that he should be excluded from the children’s lives entirely.

The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

1. On the evidence before me, I am not persuaded that the children are at risk of suffering physical harm whilst in their mother’s care; similarly, I am not persuaded that they are at risk of being neglected if they continue to live with her in the future.  I consider that there is no persuasive evidence that the mother has acted abusively toward the children either physically or emotionally (other than by exposing them to the outward manifestations of her extremely critical and denigratory attitude toward the father).

2. There is nothing in the evidence before me to persuade me that the children would be at an unacceptable risk of suffering physical harm or psychological harm from their interactions with their father if their time with him occurred on a supervised basis. However, given his evidence about:

   a)his views of being followed and, in essence, at risk of being harmed by others, and the precautions he sees as necessary to deal with and respond to his beliefs about this issue; and

   b)his behaviours toward Mr N’s children and demonstrated willingness to enlist them as supporters of his case,

   I am persuaded that it is currently highly likely the children would be exposed to an unacceptable risk of suffering psychological harm if exposed to their father’s current views about such matters and his behaviours without the safe-guard of a supervisor.

The children: their functioning, their views and the nature of their relationships with each of their parents[10]

[10] Sections 60CC(3)(a), (b), (d) and (g) of the Family Law Act 1975 (Cth).

The first Family Report

1. The mother told Ms L in August 2015 that the children were progressing well and had no special needs: C attended day care and B was in Prep and attended at after school care.  She reported that the children were happy and well-adjusted.  She said Mr N was more of the father to the children than their biological father; she was concerned that the introduction (or reintroduction) of the father to the children’s lives would cause them disruption and upset.

2. As at August 2015, Ms L considered that C presented as a bright, happy and confident three-year-old who appeared to enjoy his interaction with his mother, stepfather and paternal grandmother.  She considered that B appeared to have a good relationship with her stepfather, who in turn responded well to her.

3. It seems that B remembered her father when she spoke with Ms L in August 2015: she had a picture of him and her brother in her bedroom; she remembered him as being “a bit funny and he teases”. During the interview process in August 2015, B said she would like to see her father.  However, her mother did not permit this to occur.

4. An appreciation of the children’s interactions with their father during their supervised time with him between September 2016 and May 2017 is gained by reference to the contents of the notes prepared by Ms S, the supervisor of such time. Despite the mother’s attempts to undermine Ms S’s evidence, I accept her evidence of her observations of the children’s behaviours, their behaviours toward the father and her and the manner in which they interacted with their father during their supervised time with him.

5. Whatever may be said about Ms S’s decision to permit the father to do some work at the T Contact Centre in lieu of paying for supervised sessions and any of her other interactions with him, I am not persuaded to disbelieve her recounting of her observations; similarly, I am not persuaded at all that she fabricated or deliberately misstated her observations of the children’s interactions with their father during the time she supervised or that she was biased toward the father or that she was in some way enjoined in supporting his case and, therefore, less than impartial: after all, the children’s supervised time with their father ended as a result of her decision that she would no longer supervise the same.

1. The children’s first supervised time with their father occurred on 10 September 2016. As already noted, I accept Ms S’s recounting of that which occurred during the visits.  Whilst it may be thought unnecessary to set out this recounting in any particular detail, I consider it important to record the manner in which the children initially approached their father at the commencement of the supervised sessions and also to record the way in which their attitude toward him – and being at the Centre – deteriorated as time passed.

2. Whilst the mother and her husband made the children physically available to spend supervised time with the father, I am not remotely persuaded that they actually supported them emotionally in this time in any meaningful way at all; further, I am not prepared to discount the prospect that, however it was conveyed, the mother’s household conveyed to the children that it was permissible for them to behave during the supervised sessions in the manner reported upon by Ms S.

3. I simply do not accept any contention that the mother and her husband did all that they could to support the children in forming a relationship with the father; rather, given their strongly held views – as expressed to Ms L and at trial – I consider it much more likely than not that they simply outwardly did what they needed to be seen to do (that is: present the children at the Centre at the appropriate time) whilst doing little (if anything) behind the scenes to actually support the children in developing their respective relationships with their father: after all, the development of such relationships was something completely opposite to what the mother and her husband thought (and think) is appropriate and in the children’s best interests and is completely contrary to the mother’s expressed desire for the children to have nothing at all to do with the father.

4. Given her competence as a parent, I think it highly unlikely that the mother could not have assisted the children to develop a relationship with the father if she truly wanted this to be the outcome of the supervised time process.  Rather, I consider it much more likely than not that, consistent with her expressed view that she wanted the children to have nothing to do with the father and with her expressed view (once supervised time was ordered) that she needed to “work out how to stop it”, the mother simply acted to sabotage the process so that she could contend – as she did at trial – that there was nothing to be gained by attempting further supervised time between the children and their father or in engaging in any therapeutic process with that end in mind.

Notes of visits in 2016[11]

[11] Exhibit 5.

10 September 2016

1. The children were dropped off on time by their mother and her partner and were clean, well dressed and happy.  They came straight into where their father was, B gave him a cuddle.  The father said: “Do you know who I am [C]?” and C responded: “Yes”, then said: “Wait, who are you?”  The father responded: “I am your dad”. C said: “Did you use to be my dad”, and the father said: “I am still your dad”.  C then gave his dad a hug.  The father showed the children photos of when they were younger – which the children enjoyed looking at.  B sat on her father’s lap and played a game of cards on his iPad.  Both children were noted to be very relaxed and happy for the whole visit.  C spent most of the visit playing on the iPad.  B showed her father where she broke her arm and told him she did it when she fell off a fence.

2. C asked his father if he could come to his house. The father responded: “Maybe one day”.  C asked if he knew where he lived and the father responded that he did not know.  The father told C, “You are a big boy [C]”. C said: “How do you know my name?” The father said: “Because I am your daddy”.

3. Ms S noted that, an hour into the visit, she received a text from the children’s mother.  In it the mother said she did not want the father taking photos and “no touching”.  The mother was told that the father had already taken some photos.  He deleted the photos as soon as he was asked.

4. Ms S noted that whilst the father did not ask the children to jump on his lap, they did repeatedly throughout the visit.  Both children and the father were very relaxed around one another: all seemed to have an enjoyable visit.  At the end of the visit, the children gave their father a cuddle goodbye then happily went home with the mother and her partner.

17 September 2016

1. The father suggested that the mother come inside the premises.  He said he would not cause any issues and just wanted the children to feel comfortable. The mother said: “No way, this is the whole idea of these visits”.  B did not want to get out of the car and C did not want to go inside the premises once he got to the door – it took Ms S and the mother half an hour of speaking to the children for them to go inside the premises.

2. However, once the children were inside the premises, they interacted well with the father: they seemed happy and relaxed and played toy cars with him. They did not get upset at all during the visit.  B and the father played handball, which she seemed to enjoy.  At the end of the visit, the children gave their father a kiss and a cuddle.

Undated[12]

[12] Presumably 24 September 2016 chronologically.

1. The father arrived 20 minutes early.  The children were dropped off on time. Both children did not want to get out of the car; however, Ms S noted they had smiles on their faces as she spoke to them.  Within five minutes, B got out of the car and agreed to go in with Ms S.  C got out of the car about five minutes later, but still said he did not want to go inside the premises.  After about another five minutes, C was persuaded to go into the premises.  Once inside, both children went into the room where their father was: B gave him a hug and C shook his hand.

2. C then heard the car door shut so he went back to the door and saw his mother getting into the car.  He called out to her and said he wanted a kiss. He was not upset and did not cry.  When he was shown the cupcakes they were going to make, he ran to Ms S to have a look and the mother left.  The children and their father made cupcakes together, which they seemed to enjoy.  They then played a variety of toys with their father, who got down on the floor with them so he could interact at their level. The children seemed happy and relaxed the whole visit; they spoke freely and seemed to enjoy the father’s company.  At the end of the visit, both children gave their father a hug.

1 October 2016

1. The children were dropped off on time.  They did not want to get out of the car. Once they were out of the car, they would not go into the premises. Ms S used many techniques to try to get them to go inside. Both children told her they did not want to go inside and see “him”.  After 40 minutes, their mother carried them and put them inside the house.   B cried; C called for his mother, tried to punch Ms S and kicked the door to try to get out.  Ms S noted that the mother and her partner did not let the children see them get upset, but both were upset by seeing the children so distressed.

2. After five minutes inside the premises, both children settled down. They went into where the father was waiting, stopped crying and started playing with a variety of crafts and toys with their father.  The children were both playing on the floor and the father was sitting at the table.  When Ms S told him that he could get down on the floor and interact with them, he said he was in a bit of pain, but he did get down on the floor and play with them. When the father told Ms S what had happened in the past and how he had a meeting with the mother’s partner’s ex-partner and her children, she told him he could not talk about things like that and he stopped.

3. Ms S said that, once the children settled down, they were happy and relaxed for the remainder of the visit and interacted with their father well.  When the father told B that he had been waiting to see her all week and asked her if she had wanted to see him, she nodded. The children did not ask for their mother at all.  At the end of the visit, the children gave their father a cuddle.

8 October 2016

1. The father arrived on time.  The children were on time and presented as clean and well dressed.  The children had smiles on their faces: they ran around the front yard and said they did not want to go inside the premises.  Ms S suggested they take the children into the premises.  They caught C first.  B kept running away from them.  C kicked the screen door, hit Ms S and screamed: “Let me out”.  The father spoke to C and tried to get C to play with him. Ms S calmed the child down and he then interacted with his father.  When B was taken inside she did not cry at all: she had a smile on her face.  Once B was inside, it took C about five minutes to calm down; he was then happy and did not ask again for this mother. 

2. Ms S noted that the father got down on the ground and played with a variety of toys and engaged in various games with the children.  C climbed up on the father’s lap, gave him a hug and then asked him: “Where’s my mum and dad?”  The father replied: “I’m your dad”; “It is your mum and [Mr N]”.  C then said: “Ok where’s my mum and my other dad with the new car, oh, I mean [Mr N]”.  At the end of the visit, the children gave their father a hug and then ran to the door where the mother and Mr N were waiting.

15 October 2016

1. The children were dropped off on time by the mother. They said they did not want to go inside: however, both had smiles on their faces. The children’s stepfather picked B up and handed her to Ms S.  B did not cry.  She was laughing as she entered the premises and she interacted with the father straight away. C did not cry but scratched at Ms S’s arms as the mother handed him to her. Once he was put down, he was fine and began to interact with the father straight away.

2. Ms S noted that the children were happy and relaxed. They interacted with their father and also played with a variety of toys whilst their father watched. They were also noted to be hyperactive: they ran around and played with many toys. They ran around throwing things; they would not listen to anything Ms S or the father said to them, even after the father tried to get them to stop and calm down; they did not stop.  Ms S noted that the children seemed to calm down when they went outside with the father and played with some balls, which they enjoyed. The mother had supplied snacks and a drink.  At the end of the visit, the children gave the father a hug goodbye.

22 October 2016

1. The father was late arriving due to traffic. When the children arrived, B entered the premises without an issue.  However, C was crying when he was handed to Ms S: he asked to be put down and, when he was, ran to the door and kicked the screen door.  Ms S told the father to come and get C and he did. C then calmed down and began to play with the toys happily. Ms S noted that the children seemed more relaxed around the father today: they happily chatted and played toys with him, seemed to enjoy themselves, had a good time and never asked to go home.  At the end of the visit, the children ran to the door as soon as the doorbell rang.

2. October 2016

3. The mother sent Ms S a message to tell her that the children had said the father kissed them and they did not like it: she wanted it to stop.  Ms S told the mother that the father would go to give the children a kiss “hello” or “goodbye”; she said the children had never been upset by him doing this.  Ms S said she would talk to the father about trying not to give the children a kiss. When Ms S spoke with the father about this, he agreed.

4. During the visit, C said: “Mum said not to kiss us”. When he was asked why, he said: “Because we do not like it”.  When the father apologised and said he did not realise that C did not like it, C said: “We did like it, but now we have changed our mind”.

5. Ms S recorded that, when they were dropped off, the children ran all around the yard as if it was a game: they were laughing and trying to run away from their mother.  B entered the premises without any problems. However, when the mother picked C up, he started to cry; he said he did not want to go into the premises and wanted to hug his mother. Once C was inside the premises, he became totally out of control: he kicked the front door, tried to bite Ms S, scratched her, kicked her twice in the shins, threw toys on the ground and took his shoes off and threw them at his father. Whilst he was doing this, he was screaming and intermittently laughing.

6. The father spoke to C calmly. He tried to get him to calm down by distracting him with playing balls outside. Ms S said that, after about 10 minutes, C calmed down. He laughed as if he thought it was all a joke.  He continued to try to bite and punch his father. B said that C hit her in the car on the way to the visit and that he bit and hit her at home.  C then threw balls and cushions over the fence. He was laughing as he did this.  Ms S said he was totally out of control: he jumped on the lounge – when she asked him not to, he looked her straight in the eyes and did it again.

7. The father told C that he had been told to behave. C then grabbed the father’s hand, bit him so hard that he drew blood and then laughed.  C told the father: “You not daddy. [Mr N] is daddy” and continued to bite him over and over; he spat at his father repeatedly.  Ms S said C went from toy to toy trying to destroy and break anything he could.

8. Ms S noted that she thought both children appeared to be tired.  C told his father: “When mummy was sleeping in my bed, me mummy and B said we hate you”. C asked the father: “How do you know my name?” The father told him: “Because mummy and I chose your name, like we chose B’s name”.  C then said: “We call [Mr N] dad”.

9. Ms S noted it was like C was two different children: when he calmed down, he gave the father a hug and interacted with him; however, he also went off and played with a Spider Man toy.  Every time the father looked at him, he said: “Don’t look at me”. However, he then went up to his father and played with him; then he walked away and played by himself and told his father not to look at him.

10. Ms S noted that the children did not say goodbye to the father at the end of the visit.

5 November 2016

1. The children were dropped off on time by their mother and stepfather. They went straight to the door.  B entered the premises happily but C held his mother, kept asking for cuddles and said he did not want to go inside. The mother gave him lots of hugs and then handed him to Ms S, who thought him upset, but nowhere near as bad as the previous weekend.

2. Ms S noted that C kicked the door a few times as he watched his mother’s car leave, but she distracted him. Once he entered the playroom, he started to play with toys and interact with his father. The father sat with the children and played a board game. He also sat with C while he played on the iPad and B did some craft. The children appeared happy, relaxed and well behaved. They interacted well with the father and played with a variety of toys whilst their father watched them. The children would not give their father a kiss or a hug goodbye at the end of the visit.

12 November 2016

1. Ms S reported that, initially, neither child wanted to enter the premises for the visit. However, after about 10 minutes, B happily entered the premises. She chose to do some craft. When the father tried to say hello to her, she would not look at him or acknowledge him in any way. She did not interact with the father at all.  She did say goodbye to him at the end of the visit, but Ms S thought she did not seem happy about that.

2. Ms S said that C lashed out at her at the start of the visit. He slapped her across the face twice; when he saw his mother had left, he kicked the door twice. She told him not to. Ms S said that, when C was with the father, he was relaxed: he climbed onto his father’s lap and started to play with toys. She said that, although C and his father interacted well, C played by himself for a lot of the time.  At the end of the visit, C ran straight to the door. He did not say goodbye to the father.

19 November 2016

1. The children were clean and well-dressed when dropped off on time by their mother. They both ran around the front yard for about five minutes saying they did not want to come inside. C was crying and saying he wanted hugs and kisses from the mother; once inside, he kicked the front door and tried to hit Ms S. B came inside and she did not cry and seemed happy. Once the mother and stepfather left, C walked to the toy room and started to interact with his father straight away; B followed and the three sat together and did some craft. The father mentioned he liked tennis, and C said: “My dad plays tennis”, when asked “Who’s your dad” C said: “[Mr N]”. The father said: “[Mr N] is not your dad, I am your dad and [Mr N] is your mum’s friend”. When asked by the father who told C that Mr N is his dad, C said: “[B]”; however B denied this.

2. The children seemed happy and relaxed around their father for the whole visit. C climbed up on his father’s lap and did some colouring in. The father gave C a kiss on the head, and C told him that:  “Mum said you can’t kiss me”. At the end of the visit, the father asked C if next week he could just come straight inside so they can play straight away, and C smiled and said: “No”. The father asked B for a cuddle and said “No-one has to know you cuddled me”; she walked over and gave him a hug and smiled and waved as she left the room.

26 November 2016

1. The children were dropped off on time.  C was crying as soon as he arrived and asked for cuddles; however, once inside C stopped crying and started to interact with his father. The father had gifts as B’s birthday was upcoming; he also bought a small gift for C so he did not feel left out.  Both children loved their gifts and spent the rest of the visit playing with them with their father.  Both children seemed relaxed and happy.  C sat on his father’s lap playing with his toy whilst B also climbed up on her father’s lap and listened to him as he showed her the card he had made; they chatted happily about her gift.  At the end of the visit, the father asked C if he could shake his hand and C gave his father a hug, the father kissed him on the head and they shook hands.  C had a big smile on his face.  B then came over and gave her father a kiss and a cuddle.

3 December 2016

1. The children were clean, well dressed, and happy when dropped off on time by the mother and stepfather.  It took 12 minutes to get the children to come inside as they did not want to come in.  B did not cry but C cried and said he wanted cuddles from his mother.  C tried to kick and scratch Ms S as she held him.  Once in the toy room, where the father was waiting, C stopped crying and started to play with toys.  Both children sat with their father and engaged in painting and craft; they interacted well with him and seemed happy, relaxed and happily chatted about what they had been up to and about the pony B had received for her birthday.  At the end of the visit, the children said goodbye to their father.

10 December 2016

1. The father was late to the visit due to a traffic accident.  When the children were dropped off, they ran around the front yard laughing and saying they did not want to come in.  After five minutes, C came inside and started to interact with his father immediately; B continued to run around the front yard and up and down the street.  About 15 minutes later, the mother handed B to Ms S who observed B had tears in her eyes and said she did not want to come into the room where her father was.  Once inside, both children seemed happy, relaxed and interacted well with each other and the father.  About five minutes before the end of the visit, B expressed that she wanted the mother; she was told her mother would be on her way and there soon.  As soon as the doorbell rang, both children ran straight to the door and did not say goodbye to the father.

17 December 2016

1. The children arrived happy.  C went straight into the house and spoke to the father and then went outside to where B was.  The children ran around the front yard for about 10 minutes until the mother said they had to go inside and both children walked inside; there was no crying or being upset from them.  When the children came inside, they interacted with their father immediately: they sat on the floor together and played board games and cards and the children seemed happy and relaxed.  The children also sat with their father and did some craft; the father was very encouraging with everything they did and praised them on their work.  He also took every opportunity to teach them while playing.  At the end of the visit, the children said goodbye to the father.

24 December 2016

1. The children were clean, well dressed and happy when dropped off on time by their mother.  It took about five minutes to get them inside the house: B was kicking her leg but did not cry and C was upset and lashing out but, as soon as he went inside, he stopped and both children interacted well with the father. The father had brought them some Christmas presents; both children opened their gifts, which they both seemed to like.  The rest of the visit was spent playing with the toys the father had brought.  The children seemed happy and to have a great time.  At the end of the visit, B said she did not want to take her presents home; C was excited to take his present and to get new toys from his father as the father was going to return a broken toy to be replaced.

Notes of visits in 2017

5 January 2016[13]

[13] Whilst the notes indicate 5 January 2016, this would not be correct chronologically and it is obviously intended to be “2017”.

1. The father arrived early.  The children were dropped off on time by the mother. C went into the Centre within a few minutes without any issues but B did not want to go inside and it took the mother 15 minutes to persuade her – she eventually went inside but did not cry.  The mother told Ms S that she was worried the father was using the toys as tools to make the children want to continue to come to the visits. When C came in, he said: “Where’s the bad man” and “You buy me presents just to keep us here; that’s what my mum told me”.  The father said: “That’s why I did not buy you too many presents because I want you to come here to see me not the presents”; C said:  “Well I just want presents”.

2. When the father asked C if he put the light he liked so much up on the wall, C said he did not know where it was and that it could be in the bin; when asked by the father why it went in the bin, B said: “maybe he lost it”.  C sat on his father’s lap as he helped him with his present (a replacement from the broken present from last week).

3. B would not respond at all to the father: he spoke to her and she had a smile on her face, but she would not talk or interact with him.  When B was playing a game of Connect 4, the father sat with her and she started to play with him, interact and speak with him.  All three then went outside and played with bubbles and handball; they interacted well and played well together.  Towards the end of the visit, both children laughed with their father and seemed to have a great time.

7 January 2017

1. The father arrived on time. The children were dropped off on time by their mother.  They did not want to go inside and ran around the front yard.  Once inside B did not cry but C kicked the door and screamed: once the mother walked to the car, he became even more upset and scratched Ms S as she was trying to calm him down.  C kicked the door saying: “Let me out”; the mother was observed to sit in the car outside the Centre for a few minutes, recording how upset C was.

2. Once the mother had driven away, C stopped crying, was calm and happy. Ms S notes this was a complete transformation; she records he happily interacted with his father and asked the father if he had a present for him (he was told he would have to wait for his birthday). The children wanted to watch a movie, so all three watched the movie together.  The father tried to interact with B but she did not acknowledge him in any way: he asked her questions and Ms S told him he should not be asking her questions as it could upset her.  Every time the father tried to get near B, she moved away from him and would not look at him at all.  About half an hour before the end of the visit, the children went into the playroom and played with the toys: C interacted with his father but B did not interact at all; when it was time to go, the father said goodbye to her but she did not answer him.

21 January 2017

1. The father arrived on time. The children were clean, well dressed and happy when dropped off on time by their mother.  C went straight into the Centre and was happy and cheerful when he saw the father; however, B did not want to go inside.  After 10 minutes, the mother picked her up and carried her to the door and she then happily went inside.  B said a few times she wanted her mummy, but was not upset at all.  She sat and played a board game with her father but would not talk to him; he asked her questions about how the ponies were and what she had been doing. The mother had provided food and drinks. The father tried to engage with B quite a few time; he got down on the ground with C and played cars with him.  The children and the father sat together and did some colouring in and stickers which they seemed to enjoy.

28 January 2017

1. The children were well presented; whilst they said they did not want to go into the Centre, they had smiles on their faces and seemed happy.  B went in happily enough but C was resistant: he kicked the door repeatedly and yelled out to his mother; he scratched Ms S’s arm and screamed.  B did not speak with her father the whole visit: whenever he approached, she got up and walked away from him; she hid under the chair until he moved away.  C played on the iPad and interacted with his father and spoke to him about what he was looking at.  At the end of the visit, the children left without saying goodbye to their father.

4 February 2017

1. The children were clean and happy when dropped for the visit. They ran around the yard but appeared not to want to go inside; when C was taken inside, he kicked the front door repeatedly and cried out for his mother; he kicked Ms S’s arm and hit her.  B went inside okay.  Once the mother left, C was fine and interacted well with his father: he sat beside him and watched YouTube clips about Transformers, which he appeared to really enjoy. Ms S noted that B seemed a little disconnected; however, she played a board game with her father and seemed relaxed and happy and interacted with him. However, she also appeared very withdrawn and timid on occasions. Ms S noted that, when the doorbell rang, she told the children their mother was there: they did not seem in a hurry to leave and she (the supervisor) had to tell them again to go; they did not say goodbye to their father, although he farewelled them.

11 February 2017

1. The children were clean, well-dressed and happy when dropped off on time by their mother: they entered the premises straight away and were happy and relaxed and did not say they did not want to go inside.  C was relaxed and not upset. The father was late because of a flat tyre; when he arrived, B did not speak to him: she hid behind the lounge when he walked inside but had a smile on her face as she did so.  C interacted well with his father and happily chatted with him. When C said he wanted to go for a swim, the father made a comment about them being able to go to a real pool: Ms S noted she had previously told the father not to talk to the children about doing things outside the facility as this may confuse them.

2. According to the notes, about half an hour into the visit, B happily interacted with her father and played games with him: Ms S recorded that she seemed relaxed and interacted well with him.  Ms S also noted that she thought it might be preferable, in the future, for the mother to drop the children off before the father was there.  The mother agreed.  At the conclusion of the visit, C said goodbye to his father and B gave him two “high fives”.

18 February 2017

1. The children were dropped off by the mother, Mr N and their stepsisters. They were initially reluctant to enter the premises so the mother and Mr N brought all of the children into the facility.  As soon as the father arrived, B dropped her head, ran out of the room and hid behind the lounge; she would not acknowledge him at all, despite his efforts to speak with her.  He told her that she should not listen to her mother; that he was not a bad man but was a good man: B became upset and ran out of the room.

2. When the supervisor asked her why she was upset, B said because her father had told her not to listen to her mother.  Ms S told the father he could not say such things to the children and should just speak about day to day activities.

3. According to Ms S, C said hello to his father, interacted well and played with a variety of toys with him; he chatted freely with him.  As the session progressed, B played a board game which included her father and seemed relaxed and happy and interacted well: however, as soon as the game was over, she would not interact with him again.

4. As soon as the doorbell rang, the children went to the door and left without saying goodbye to their father.

25 February 2017

1. The children were happy when dropped off on 25 February 2017.  The mother came into the facility with them and stayed a few minutes; C asked her: “Can you go now?”

2. Ms S thought the children seemed relaxed around their father: whilst B did not speak to him, she stayed close to where he was playing with the toys; both children played with a variety of toys whilst he was by their side; however, they did not communicate with him and spent the visit playing by themselves.

4 March 2017

1. The children were about five minutes late for the 4 March 2017 visit.  The mother came into the Centre for five or so minutes.  When the father arrived, C instantly started to interact with him; however, B did not speak to him at all. C told his father that his name is “[Mr Hellas]” and Mr N’s name is “Daddy.”  When the father asked him who told him that, C said: “Mummy”; C then said: “Mummy told me you are going to come and steal me and B”. The father told him that was not right and that he would never do that.

2. After about 10 minutes, B joined in and played Lego with C and the father. All three then headed outside to play with toys and scooters; the children did not farewell their father at the conclusion of the visit.

11 March 2017

1. The mother dropped the children off at 8.00 am. She asked for the session to be moved to after school. When she was told that there were no vacancies at that time, she said she would remove the children from school early. When the possibility of a session between 2.00 pm and 4.00 pm on Friday afternoon arose, the mother asked the father to agree to the same: he said he did not want to take that option because he did not want the children pulled out of school early, did not want everyone to be caught in traffic and felt that that spending time with the children between 2.00 pm and 4.00 pm on Friday afternoon would not be “quality time” as the children would be tired at the end of the school day.

2. Ms S noted that C told other fathers at the Centre that “[Mr Hellas]” was not his “Dad”.

3. She also noted that B walked away from the father as soon as he approached and spent most of the visit playing alone; however, C interacted well with his father and they played Lego cricket together. She recorded that C seemed happy and relaxed around his father. Again, the children did not farewell the father at the end of their visit.

4. The supervisor noted that, when she told the mother the father did not agree to move the visits, the mother said she would get the Court to move it because she was not going to have the children miss out on sports to attend the Contact Centre visit. The mother also asked to be put on a standby list for after school appointments.

18 March 2017

1. The children were a little late to arrive on 18 March 2017.  C went inside the premises happily but B did not want to enter the Centre so the mother came in with the children and then left within a few minutes.  B kept saying she wanted her mother but, as she did so, she had a smile on her face: she did not cry and was not noticeably upset.  Ms S reported that it seemed as though B was playing a game which continued after her father arrived; after about 10 minutes, she settled down and played happily but did not speak to him at all and ignored him when he asked her questions.  After about an hour, she started to interact more with the father and they played a ball game together; she did not say goodbye to her father at the end of the visit.  

25 March 2017[14]

[14] The notes indicate 5 March 2017, however at trial Ms S corrected the date to 25 March 2017. 

1. The children were happy when dropped off by their mother and grandmother on 25 March 2017. Ms S noted that, once the mother left, C became a bit upset and cried for her but this stopped within a few minutes. When the father arrived, C ran out the back to where B was and yelled: “The bad man is coming, the bad man is coming”.

2. Ms S reported that B ran inside as soon as her father went outside – but the child had a smile on her face and then returned within a few minutes.

3. When the father went over to C to wish him “Happy Birthday” the date of which was approaching, C yelled at him that he hated him; however, when the father told him that he had presents for his birthday, C came out of the cubby house and interacted well with his father and gave him a hug for his presents.

4. Later during the visit, when C walked off to play with a toy by himself, B walked over to her father and began to play with the toy he had in his lap. However, after she finished, she went back to playing by herself: every time her father approached, she ran away.  Ms S noted that C interacted well with his father, but, save for a few minutes, B was completely detached.

8 April 2017

1. Both children were happy when dropped off.  They did not want their mother and stepfather to leave; C cried when they did, but stopped within a few seconds. The children spent most of the visit playing by themselves: C interacted better with the father, but B did not even speak to him and every time he approached, she walked away.

12 April 2017

1. The children were dropped off 10 minutes late by their mother.  They did not want to enter the Centre, so the mother went in with them.  Both children said they did not want her to go.  C cried when Ms S picked him up: when she closed the door, he continued to cry and kicked the front door.  The father arrived.  C remained upset, but stopped crying within a few minutes and did not cry for the rest of the visit.  B did not interact with the father at all; she walked away from him when he approached and totally ignored him; she refused to talk to him when he approached her to play a game.  The children played by themselves for most of the visit. The father watched on from a distance.

19 April 2017

1. The father was parked only a few car spaces away from the mother.  She did not bring the children into the Centre until Ms S called him and asked him to leave.  It appears that everyone was sitting at the front of the Centre for about 40 minutes.

2. When the father arrived, C told him that B did not want to talk to him. When the father asked “Why?”  C said: “Because she does not like you; mum said she does not like you”. The father said: “Well, I like you both; I love you both.” C replied: “I hate you”; when the father said: “That is not nice”, the child said: “Well I hate you”.

3. Whenever the father approached the children, they walked away or totally ignored him.  After about 20 minutes though, C started to interact with his father: they sat together and played with a toy, whilst B played close by on a scooter.

26 April 2017

1. The children were happy when dropped off by their mother.  She accompanied them into the Centre.  Both children said they did not want her to leave.  However, she was very encouraging and told them they would have fun and she would be back.  When she left, C became upset and tried to get out the door, but then calmed down within about a minute.

2. When the father arrived, the children would not interact with him at all: both told Ms S they did not like him.  When she asked them why, both said they did not know why; C told her he did not like his father because B did not like him and, therefore, he did not like him either.

3. When the father tried to approach the children, they moved away from him.  B asked a few times how long it would be until her mother returned. Whilst the children were well-behaved and played happily with a variety of toys, they did not play with their father at all.

3 May 2017

1. The children were 15 minutes late.  Neither wanted to go inside the Centre: C screamed and kicked the front door when his mother left. When the father arrived, C told him that he hated him. When the father asked him why he hated him, the child said: “I don’t know, but I hate you”.

2. The children completely ignored the father for the first hour of their visit but thereafter played with him.  When the doorbell rang, they ran straight to the front door and did not say goodbye or acknowledge their father in anyway as they left.

10 May 2017

1. When the children were dropped off by their mother, C would not get out of the car.  The mother tried repeatedly to get him out: he finally got out of the car but would not enter the Centre; he did not listen to his mother and kept running around and around the car.

2. Ms S picked him up and took him into the Centre: she said he was making a crying noise but was not crying.  Once he was inside, he immediately stopped and started to play with a toy.  The children sat with her father but B did not engage with him at all; C interacted with him as they made a card for their mother.

17 May 2017

1. When the children were dropped off by their mother, neither wanted to enter the Centre.  It took the mother and Ms S more than 15 minutes to get them inside. Once inside, C did not want his mother to leave and he kicked, screamed and pulled at the door as she did.

2. When Ms S asked B to draw a picture about why she did not want to come to the Centre and see her father, the child wrote that she was scared.

3. When the father arrived, the children were hiding under a table.  Ms S thought they appeared to think it was a game, as they had smiles on their faces and did not seem upset.

4. Whenever the father went to talk to B, she ran away from him: however, she also had a smile on her face as she ran.  Whilst she did not interact with him, she made sure she sat nearby wherever he was sitting.  C spoke to his father and allowed him to help play with a keyboard. When they went outside and played cricket, both children interacted with the father. They then asked him to play tag – all of them laughed as they played the game together.

24 May 2017

1. C was unwell when the children were dropped off by their mother: he kicked the door repeatedly after she left; he kicked and hit Ms S when she picked him up; he tried to bite her and screamed.  However, when Ms S told him that he was not allowed to behave like that, he stopped.

2. C hid as soon as he heard his father arrive.  It took him about five to 10 minutes to come out, but he would not interact with his father.  He told his father that he did not like him; when the father asked why, the child said: “Because you do bad things”.  When asked what sort of bad things, C said: “You try and see mummy”.  When the father asked who said that/put that in the child’s head, C said: “Mummy said it”.

3. Neither child interacted with the father at all. When the father tried to interact with the children, C started to hit him; the father said: “Because mum tells you to do that doesn’t mean you have to do”; B yelled out “Mum never asked him to do that”; both children said the father was naughty and fat.  Both children made derogatory comments towards their father such as: “You’re fat and ugly; you’re a cheese face; you are stupid; you stink; you’re an egg face; baby butt crack; you stink”.  They threw fake food at him; C went up and hit him and threw toys at him.  Both children’s behaviour deteriorated: inside they threw toys around; outside they threw sand around and tipped the entire sandpit over; when told to clean that up, they purposely spread sand further.

1. The purpose of the other orders associated with the father’s ability to provide letters, gifts and presents to the children is to ensure that he is made aware of any particular difficulties the mother has with the content of any such items, so that he can act to modify his decisions or choices about the content of the same.

2. For the reasons expressed, I consider that the orders set out at the commencement of these Reasons are the orders which, in the reality of these children’s circumstances, as established by the evidence before me and as adverted to above, are in the children’s best interests.

I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 May 2018.

Associate: 

Date:              18 May 2018