JG & BG

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY NO SY 9442 OF 1993

IN THE MARRIAGE OF J. G.
(Wife)

AND B. G.
(Husband)

DATE OF HEARING 12-19 September 1994
DATE OF JUDGMENT 30 September 1994

JUDGMENT OF THE HONOURABLE JUSTICE CHISHOLM

APPEARANCES Mr Spink of Counsel, instructed by Jane Knox & Associates, for the applicant wife.

Mr Roberts of Counsel, instructed by Michael Conley Solicitors, for the respondent husband.

Introduction
These proceedings concern the welfare of two children, who I will call Tommy and Billy, though these are not their names. Tommy, who was born in 1989 and is now aged 4, and Billy, who was born in 1992 and is now aged two. The children's parents are in dispute as to which of them should have custody of the children. Each parent seeks sole custody and each parent accepts that the children should remain in contact with the other parent, regardless of which succeeds in obtaining custody.
The husband was born in 1951 and is currently forty three years of age. The wife was born in [---] in 1958 and is now aged thirty five. The husband is self employed as an investor, and has the support of his parents in these proceedings and also the support of his brothers. The wife, who is a triple certificated nurse, has the support of her boyfriend, Mr M.
The parties were married in January 1989. During their relationship, both parties spent much of their time at home, since the wife was engaged in employment only on Saturdays and Sundays during part of the relationship, and the husband, for most of the period, conducted his work from home. The contribution of each party to the welfare of the children and the household chores is a matter of controversy, but it is clear that both parents spent a lot of time with the children during the period of the marriage, and indeed have continued to do so since separation.
Separation occurred on 15 September 1993, although it is clear that there had been difficulties, and talk of separation, for some time prior to that, perhaps from about May 1993. During the marriage, the husband's parents were frequent visitors at the home and have played a significant part in the care of the children.
The older child, Tommy, has had serious health difficulties. In particular, he has suffered from severe asthma and is highly susceptible to allergies. These conditions, especially the asthma, have meant that it has been necessary for the parents to pay continuing attention to his health situation, and consult doctors from time to time, and to have certain medical equipment available for use when Tommy has asthma attacks. Billy, fortunately, has no such health problems.
On 29 October 1993 the husband took Tommy to [---]. The wife's evidence is to the effect that he took Tommy by agreement for two weeks. On or about the morning of 11 November she spoke to the husband by telephone at his brother's home at [---]. She says that she asked him to return Tommy for a planned party on 20 November and that later in the day the husband said that he would return Tommy on 15 November. On 15 November, however, the husband rang her and said he wanted to bring Tommy back on Friday 19 November. On 19 November, according to the wife, she and Billy returned to her home and the husband was there. He said "Tommy was asleep so my nephew M dropped me over here and took Tommy over to my parents' place." After further conversation he said "I'll take Billy over to see my parents as they never get to see him. Is that OK?" The wife replied "Yes, that should be OK. He's just been weaned off the bottle." At about 4.45pm that day, the wife says that the husband telephoned her and said that he was not bringing the children back. He also said that he had seen a magistrate, that she was an unfit wife and "you smack Tommy and put him in his room."
The husband's version of this incident is different in a number of ways. He says that the wife said to him in the telephone conversation of 11 November 1993 words to the effect that he would have to keep Tommy with him because she was still "not coping". She also said that she had planned the birthday party for 27 November. He says that on 19 November the wife was "aggressive" towards him, shouting and swearing and raising her voice. He says that Billy ran to him and clung to him and would not let him go. He admits the conversation later that day as set out in the wife's affidavit, paragraph 15. At paragraphs 36 and 37 of his affidavit, the husband says that he noticed various bruises on Tommy when he picked him up on 29 October 1993 and when he gave him a bath in [---] that afternoon. He also says that Tommy said to him "Dad I do not want to go back to mummy. She hits me and screams at me."
Following this incident the wife applied to the Family Court and obtained orders made by Judicial Registrar Knibbs to the effect that she should have continuous access to the children and that the husband should return the children to her. These orders were made ex parte on 22 November 1993, and the matter again came before the court on 25 November 1993. At that time the parties entered into an agreement resulting in consent orders. These orders provided that the wife was to have continuous access to the children from Wednesday 6.00pm to Sunday 12.00 noon and that the husband would have continuous access from Sunday 12.00 noon to the following Wednesday at 6.00pm.
On 2 February 1994 Cohen J made orders granting the wife interim custody of the children and granting the husband access from 4.00pm each Friday until 3.00pm each Monday.
On 20 March 1994 there was an incident which will be discussed at greater length below. It is sufficient at the moment to say that it resulted in the husband being charged with assault and shortly afterwards, on 24 March 1994, the wife filed an application seeking to set aside the existing orders and to suspend access. On 31 March 1994 Johnston JR made orders to the effect that the husband's parents were to collect both children from the [---] Pre-School at 3.00pm on Friday and return the child Billy to the pre-school at 3.00pm on Monday. These orders remain in force up to the present time. Access has been exercised, and there is considerable evidence relating to access handovers, which have been problematical.
It is quite clear that in this case each parent is capable of providing adequate care for the children. There is no issue of any consequence relating to the physical accommodation and other arrangements that each parent can offer for the children. Further, as previously indicated, it is clear that whichever parent has custody the other parent will have substantial access. In substance, the court's task is to consider the evidence and decide which parent's proposals for custody would be most likely to promote the welfare of the children.
The wife's proposals
The wife's proposals are set out in her Amended Application of 25 July 1994 and are as follows:

The wife is to have sole custody.
The husband is to have access:
(a)      every alternate weekend from 4.00pm Friday to 5.00pm Sunday;
(b)      half the school holidays;
(c)      each alternate Christmas day from 10.00am to 5.00pm commencing Christmas day 1995;
(d)      each alternate Boxing day from 10.00am to 5.00pm commencing Boxing day 1994.
The wife's evidence as to her plans for the future, contained in paragraphs 63 to 66 of her affidavit and some evidence she gave in cross-examination, are to the effect that she will work on every alternate Saturday (the Saturdays when the husband has access) and will also work each Wednesday.
The wife is in a relationship with Mr M whom she met in about January 1994. Both she and Mr M see the relationship as long term and stable but at this stage the children do not know Mr M, having met him only twice and, indeed, having been introduced to him under the misdescription of a computer repair man. The relationship between the children and Mr M was the subject of considerable evidence. It is sufficient to say at this stage that both the wife and Mr M have given evidence to the effect that they see the relationship developing in the future and that they have deliberately delayed introducing the children to Mr M in a substantial way because of what they perceive to be the disadvantages of such a meeting in the light of the attitudes by Tommy towards Mr M. They say that the husband has apparently created in Tommy a very unfavourable view of Mr M and that in the circumstances, at least pending the resolution of these proceedings, it would be unwise to attempt to develop the relationship between Mr M and the children.
The husband's proposals
The husband seeks an order granting him sole custody and an order that the husband and wife be granted joint guardianship. His proposals for access to the wife, in the event that he obtains custody, are as follows:
An order that the wife be granted liberal access to the children of the marriage as agreed between the parties, or failing agreement to be as follows:
(a)      each and every weekend, commencing 9.00am Saturday until 6.00pm Sunday except in the case where the access falls on a long weekend, then terminating at 6.00pm on Monday of that long weekend;
(b)      for a period equivalent to half the gazetted school holiday vacation times for NSW school children;
(c)      for the purpose of implementing all weekend and holiday access, the wife shall pick up the children on the commencement of the access period and the husband shall collect the children at the conclusion of the access period.
(d)      the pick up and collection of the children shall be from the parties' residences.
The husband has also indicated the access orders he would seek in the event that, contrary to his submissions, custody should be given to the wife. These orders are in the following terms:
That the present orders for access made by His Honour Justice Cohen on 2 February 1994 as varied by Judicial Registrar Johnston on 31 march 1994 continue until Tommy commences school in the first school term on 1995.
After Tommy commences school the husband to have access to both children every second weekend from 3.00pm Friday afternoon until 9.00am Monday, and if a long weekend falls on an access weekend to 9.00am Tuesday of that weekend.
That the husband to have access to the children each Wednesday from 7.45am until Thursday at 9.15am.
That for the purposes of the access set out in order 2 hereof that the husband collect the children from school at 3.00pm each Friday and deliver the children to school each Monday at 9.00am, or Tuesday at 9.00am as the case may be, and that the wife be available at the school at 3.00pm Friday to deliver Billy for the purposes of access and be at the school at 9.00am on Monday or Tuesday as the case may be to receive Billy after the conclusion of access.
That for the purposes of the access ordered in order 3 hereof the wife deliver the children the husband's residence at 7.45am each Wednesday and the husband deliver the children to the children's school each Thursday morning at 9.00am. The wife to collect Billy from the school at 9.00am each Thursday.
That the husband have access for half of each school holiday period at times to be agreed in writing between the parties.
That the husband have access to the children from 9.00am to 5.00pm on each alternate Christmas day, commencing on Christmas day 1994.
That the husband have access to the children each Father's day from 9.00am on that day until 5.00pm on that day in the event that Father's day does not fall on an ordinary access weekend.

As to the husband's proposals, it is only necessary to mention that he presents himself as a loving and involved husband and his description of his proposals emphasise that he will be personally attending to the children's needs (see his affidavit, especially paragraphs 41 to 47). He says that both children have a "very close and loving relationship" with his parents, that they have maintained that relationship since separation, and that when the children see them on Saturdays, Sundays and Mondays they rush over to them throwing their arms around them and hugging them, laughing happily. He says that his parents spend considerable time playing with the children and reading them books and teaching them educational games. He also says in paragraph 51 and in his oral evidence that both children have and benefit from a close relationship with all members of his extended family.

The relevant law

The relevant law is contained in section 64 of the Family Law Act 1975 (Cth), which relevantly provides as follows:-

s 64.(1) In proceedings in relation to the custody, guardianship or welfare of, or access to, a child -

(a) the court must regard the welfare of the child as the paramount consideration;
(b)the court shall consider any wishes expressed by the child in relation to the custody or guardianship of, or access to, the child, or in relation to any other matter relevant to the proceedings, and shall give those wishes such weight as the court considers appropriate in the circumstances of the case;
(ba)subject to paragraphs (a) and (b), the court shall, unless in the opinion of the court it is not practicable, make the order that, in the opinion of the court, is least likely to lead to the institution of further proceedings in relation to the custody or guardianship of the child;
(bb)the court shall take the following matters into account:
(i)the nature of the relationship of the child with each of the parents of the child and with other persons;
(ii)the effect on the child of any separation from:
(A) either parent of the child; or
(B) any child, or other person, with whom the child has been living;

(iii)the desirability of, and the effect of, any change in the existing arrangements for the care of the child;
(iv)the attitude to the child, and to the responsibilities and duties of parenthood, demonstrated by each parent of the child;
(v)the capacity of each parent, or of any other person, to provide adequately for the needs of the child, including the emotional and intellectual needs of the child;
(va)the need to protect the child from abuse, ill treatment, or exposure or subjection to behaviour which psychologically harms the child;
(vi)any other fact or circumstance (including the education and upbringing of the child) that, in the opinion of the court, the welfare of the child requires to be taken into account; and

(c) subject to paragraphs (a), (b), (ba) and (bb), the court may make such order in respect of those matters as it considers proper, including an order until further order.
Children's welfare paramount: para (a)

The basic principle of the law governing guardianship custody and access is that the children's welfare must be regarded as the paramount consideration. This principle has been analysed in many reported authorities. It has been given its full force by decisions of the Full Court of the Family Court and the High Court of Australia.[1]

[1] See eg Marriage of Smythe (1983) 8 Fam LR 1029; Gronow v Gronow (1979) 5 Fam LR 719; ZP v PS (1994) 17 Fam LR 600.

This principle means that decisions about custody and access are not about the rights and wrongs of the parties' conduct towards each other. An award of custody of children to one parent does not mean that the court has found that parent to be a better person. It does not mean that the other parent is treated as being of less importance or worth. It is not a vindication of one or a condemnation of another. Nor does it mean that as a matter of justice between the parents that parent should have custody. It only means that the court thinks that it will be best for the child if he or she is placed in the day to day care of that parent.

Family violence
In this case there are a number of allegations against the husband relating to physical and verbal violence. The husband's counsel argued that some of the passages in the affidavits relied on by the wife were inadmissible as being irrelevant. There was also argument as to the importance of the various incidents alleged to involve violence.
The significance of family violence in children's cases has been the subject of recent public discussion. The Australian Law Reform Commission has reported that many submissions to it took the view "that evidence of violence against a spouse is often excluded or discounted at different stages of the legal system and that the Family Court often does not give proper weight to the existence and effects of violence".[2]
It is not appropriate in this judgment to consider whether this is true, or to comment on the analysis or recommendations of the Commission. I note, however, that the issue of family violence has arisen in a number of family law contexts.[3] The Full Court has recently said, in connection with sentencing:[4]
... in the last 20 years increasing attention has been focused on the prevalence of crimes of violence within the family and attitudes which tolerate family violence are now condemned by the law... The Crimes (Family Violence) Act 1987, like its counterparts in other States and the Territories, underlines the view that instances of family violence should not be seen as less than crimes and that violence must not be trivialized simply because it occurs within a domestic or "private" context. This view is also reflected in the law's rejection of any distinction between rape within marriage and rape outside marriage (see R v L (1991) 15 Fam LR 122, a decision of the High Court). Personal relationships, especially within the family, are rightly protected by privacy, but that privacy must not be allowed to hide violence. Family violence is not a private matter and must be treated seriously by the courts, not only when prosecuted as a criminal offence in the ordinary way, but also where violence is an element of a breach of an order of the Family Court.
The importance of the topic, as indicated by such developments, as well as the importance of ensuring that the parties understand the basis for the decision, suggests that it might be appropriate to identify and state the legal principles relevant to allegations of violence in the context of proceedings relating to guardianship custody and access.
Relevance of family violence
The legal relevance of family violence varies according to the nature of the proceedings. Physical assaults are crimes and are not tolerated by the law. They are subject to punishment under the ordinary criminal law and to the extent that they cause injury, proceedings in tort may be taken by the injured party for damages for those injuries.[5] As emphasised by the Full Court in the passage quoted above, the wrongfulness and criminality of assault is as great when it is committed in the home as when it is committed in the street. In some legal contexts, however, violence between the parties is irrelevant. The clearest example is the granting of a divorce. Here violence is irrelevant once the ground of divorce (the irretrievable breakdown of the marriage, evidenced by one year's separation)[6] is established.
What is the relevance of family violence in proceedings relating to children? In contrast with criminal proceedings or proceedings in tort, it is not the objective of the law in custody and similar proceedings to punish wrongdoers or to provide compensation or redress for victims.[7] But family violence is by no means irrelevant, as it is with divorce: it is to be taken into account if it is relevant to the determination of the child's welfare, which is the paramount consideration. The standard of proof is the civil standard of proof on the balance of probabilities, not the criminal standard of proof beyond reasonable doubt.[8]
There are relatively few Australian decisions which expressly deal with family violence in this context, but the principle has been well established in decisions dealing with other forms of parental behaviour and misbehaviour.

In Barnett v Barnett[9] Hutley JA said:
The issue is not what is justice to the parents but what is for the welfare of the child, and the welfare of the child can best be weighed by disregarding entirely any concept of claim, just or unjust, on the part of the parents. It is their conduct, in so far as it bears on welfare, which is important.
In Marriage of Kress (1976)[10] 2 Fam LR 11,230 Goldstein J said:
Given the overriding consideration of the welfare of the child, the court must consider the conduct of the parents, not with a view to rewarding one or punishing the other, but to ascertain from such conduct whether the welfare of the child will be better served in the custody of one or the other.
In Marriage of Smythe[11] Evatt CJ and Asche J summarised these and other authorities as follows:-
... matrimonial fault or conduct is relevant in relation to custody or access only if it has some bearing on the fitness of the person as a parent and, as a consequence, on the welfare of the children (see Barnett v Barnett (1973) 2 ALR 19 at 25-6 per Hutley JA; In the Marriage of Heidt (1976) 1 Fam LR 11,576; [1976] FLC 90-077 at 75,360 per Murray J; In the Marriage of Kress (1976) 2 Fam LR 11,330; FLR 508; 13 ALR 309; [1976] FLC 90-126 at 75,601 per Goldstein J; In the Marriage of Lythow [1976] FLC 90-007 at 75,075 per Watson SJ). This principle applies not only to issues of fault, such as adultery, cruelty, or desertion, but also to other aspects of a party's behaviour which may have a bearing on the justice of the situation (for example In the Marriage of Schenck (1981) 7 Fam LR 170; [1981] FLC 91-023 at 76,240).
In this context, behaviour can include the attitude of one parent towards the other and the willingness of a parent to make unfounded allegations against the other (Mills and Mills [1978] FLC 90-404 at 77,080 per Tonge J; E and E [1979] FLC 90-645 at 78,388-89 per Strauss J; Cuncliffe and Younger (1983, Full Court, unreported) to the extent that a child's welfare may be adversely affected by the influence and attitude of such a parent . . . the overriding principle is whether the evidence and the conduct are relevant to the welfare of the child.
It is necessary for the court to distinguish between matrimonial conduct which has little or no bearing on the welfare of the child and which therefore cannot be seen as a disqualifying factor (eg Rose and Duroux (1976) 2 Fam LR 11,101 at 11,112; [1976] FLC 90-064, p 75,322; Barker (1976) 1 Fam LR 11,199; [1976] FLC 90-069; Chandler and Chandler (1981) 6 Fam LR 736 at 737; [1981] FLC 91-008; pp 76,107-109) and conduct which amounts to neglect of the child or otherwise has a bearing upon the fitness of the parent (eg Lythow (1976) 1 Fam LR No 3; [1976] FLC 90-007; Heimstra (1976) 2 Fam LR 11,208 at 11,213; [1976] FLC 90-087, 75,417). There must be limits upon the amount of material which can be produced about the parties' history and which has any real bearing on the custody issue; Baines and Baines (No 2) (1981) 7 Fam LR 232; [1981] FLC 91-063. The overriding principle is whether the evidence and the conduct are relevant to the welfare of the child.
The court will not embark upon an investigation of whether a party committed adultery, was cruel to or deserted, or constructively deserted the other party when such an inquiry could not lead to a finding which would of itself disqualify[12] that party as a custodial parent. If there are facts relating to the causes of separation or to marital misconduct which have a real bearing on the fitness of a parent or otherwise affect the child's welfare, these will be considered and given appropriate weight.
Similarly, in In the Marriage of Schenck[13] the Full Court said:-
... There is to be no departure from the basic principle that the welfare of the child is the paramount consideration: see Reihana and Reihana (1980) 6 Fam LR 134; [1980] FLC 90-835 and the cases there cited. That welfare is to be determined having regard to what each parent can offer in respect of the care and upbringing of the child. It is, of course, relevant to consider the past behaviour of each parent in so far as this has a bearing on the wellbeing of the child.
I now turn to consider some reported authorities specifically dealing with allegations of violence in the context of custody proceedings.[14]
In an early decision, Marriage of Heidt (1976), Murray J distinguished between violence directed at the wife and violence directed against the children.[15] In that decision Murray J said that the conduct of a parent in relation to custody is relevant only in so far as it reflects upon his or her fitness to take charge of a child. She added "Mr Heidt's affection for his children is evident, and in assessing his potential as a custodial parent I have largely disregarded his behaviour as a husband". Murray J took a similar approach to the wife's allegation relating to the husband's adultery, saying that it was "only relevant to the question of the welfare of the children".[16]
In Chandler and Chandler[17], Nygh J dealt with a variety of allegations which he regarded as irrelevant. The relevant passage is as follows:
A number of matters were placed before me which, it was alleged, were relevant to the issue of custody. One was the allegation that the husband was a violent man. Whatever may or may not have been the relationship between the parties themselves, as I have indicated in the course of the hearing, I am only concerned with the acts and conduct of the parents insofar as these directly affect the welfare of the children. There was no evidence of violence directly affecting the children, even if the wife's allegations were accepted as true.
In both Chandler and Heidt the court ruled that the matters were relevant only insofar as they related to the welfare of the children, and proceeded to identify what matters it considered to be so relevant in the light of the particular circumstances of those cases. The approach applied is, with respect, clearly correct. I do not find it appropriate to express a view on whether the particular matters under consideration in those cases should or should not have been regarded as relevant to the children's welfare: forming such a view, of course, would require an assessment of the evidence as a whole. The only present relevance of these authorities is to illustrate the correct principles.
It may be possible to read Heidt as if Murray J intended to suggest that a partner's conduct towards another cannot be relevant to the welfare of the children, and to read Chandler as if Nygh J intended to lay down a rule of law to the effect that violence is relevant only if it "directly" affects the children. I am by no means sure that either judge intended to go so far. Each was concerned to emphasise the important point that the Family Law Act strictly limits the relevance of marital misconduct. In the context of custody cases, the Court has always been properly concerned to prevent parties from engaging in general attacks, or smear campaigns, that are unrelated to the children's welfare. The Court no doubt felt that it was important to emphasise this in the early years of the Act's operation. This is clearly correct: the principle that the child's welfare is paramount has an exclusionary aspect, excluding material that has no relevance to the welfare of the children. But it also has an inclusionary aspect, by which I mean that admissible evidence that is relevant to the children's welfare should be taken into account. It may be that in their concern to discourage parties from using custody proceedings as an occasion to engage in a general criticism of each other's behaviour, unrelated to the children's welfare, Murray J and Nygh J somewhat overemphasised the exclusionary aspect of the principle. If so, then I must respectfully differ. I believe it is clear law that matters truly relevant to the child's welfare, whether indirectly or directly relevant, should be taken into account.
In Smith v Swinfield[18] a wife made allegations of violence against her by the husband, and each parent alleged excessive drinking by the other. Needham J said,
The relevance of these matters lies solely, I think, in the decision as to which of the parties is the more desirable custodian for the child because as will appear the child is fond of both of them and the evidence seems to indicate that he would be happy to live with either.
The matters alleged by the wife against the husband were, in part, that having discovered that the wife was out with another man he had gone to the place where the wife was living and sought entry; when this was refused he broke the door down violently, picked up the child, and took him away. On another occasion, the husband again took the child away, after having apparently told the child that if the child went to live with the wife, the husband would kill himself.
Needham J held that the wife should have custody, in part for the following reasons:-
In the first place, I think the wife is a more suitable custodian in the sense that the defendant's aggressiveness and outbreaks of violence are undesirable characteristics to have in a person who is bringing up a young boy...
In Marriage of Jaeger,[19] the child lived with the husband and his wife.   The husband sought to adduce evidence of violence by the wife's de facto partner towards her. The trial judge refused to admit the evidence, and made favourable findings about the wife's de facto partner, finding that he would make a suitable surrogate husband. The trial judge awarded custody to the wife. On appeal the Full Court held that the evidence should have been admitted. It was relevant because it involved the question whether the child might go to "a household where violence may be occurring towards an important figure in his life, namely his wife" (p 10).
Determining when family violence is relevant to children's welfare
The authorities, then, require the court to make a judgment about the relevance of family violence to the welfare of the children. In what circumstances is family violence relevant to children's welfare? Its relevance may be more obvious in some situations than in others.[20] Where the violence is directed at the children themselves, it is obviously and directly relevant to their welfare. Section 64(1)(va), quoted above, expressly requires the court have regard to the need to protect the child from abuse and ill treatment. Similarly, when the violence is committed in the presence of children, it will obviously have the potential to frighten and distress them.
I do not think it can be said as a matter of law that other forms of family violence are incapable of being relevant to the welfare of the children. Violence occurring between household members, even though occurring away from the children, may have the potential to cause them distress and harm, for example where it affects the parenting of the custodial parent. Similarly, threats of violence may have an impact on the welfare of children. The nature and extent of such harm must of course be assessed in the light of the evidence and findings in each case. In some cases, the court may be assisted by expert evidence on the impact of violence on the children.[21] Violence may take many forms and have a quite different significance in different cases. It might be, for example, a single outburst, out of character, caused by a stressful situation, for which the violent persons feels immediately regretful and apologetic. It might be the result of mental instability or disease. It might stem from a person's inability to control his or her temper. It might represent a deliberate pattern of conduct through which the violent person exercises a position of dominance and power over the other. It might be associated with a particular situation, and be unlikely to be repeated in different situations, or it might be a recurrent pattern of behaviour occurring in many situations. The violent person may deny the violence, or seek to justify it, or alternatively might accept responsibility for it and be willing to take appropriate measures to prevent it happening again.
These and many other aspects of violence may be highly relevant to the court in its task of attempting to determine the relevance of the violence to the children's welfare. The court's ability to make this determination will of course depend on the evidence available to it. Violence associated with a pattern of dominance, for example, may be particularly serious. For children to grow up in a climate of a potentially violent and dominating relationship between their parents seems to me to be an unacceptable model of family relationships, and would be very likely to create a situation of stress and fear that may well be damaging over a period. It is quite wrong, in my opinion, to assume that violence can be relevant only if it is directed at the children or takes place in their presence. It is equally wrong to assume that violent behaviour will necessarily be repeated, or to assume too readily that it will harm children, or to give it excessive importance; it is of course only one factor relevant to the assessment of what the child's welfare requires, and it will be more important in some cases than in others.
Whether to make findings
In Chandler, Nygh J said[22]
It is a fundamental principle in this Court that where it is clear from the evidence that the relationship between the children and each of the parents is going to continue, the Court should refrain from making any finding, unless absolutely necessary, which adversely reflects upon the self-esteem or integrity of each of the parties.
This quotation raises an important issue, namely to what extent the court should proceed to make findings on matters of violence or other alleged parental failings. There are of course situations in which the court is unable to make determinations of particular factual matters, even on the balance of probabilities, because of evenly balanced, insufficient or unreliable evidence.[23]
The court has spoken out against the use of "smear tactics" in children's cases.[24] However where allegations are made which have an important impact on the children's welfare, it will be necessary for the court to make appropriate findings where it is able to do so.[25] This is perhaps particularly the case where they are strenuously denied and where, in effect, the court is asked to find that they have been concocted. In such cases if the allegations are false the fact that they have been made may itself be an important matter for the court to consider: the making of knowingly false and serious allegations against a parent is something that may well cast into question the maker's attitude to the responsibilities of parenthood.[26]
In some cases, it may be important to make findings about family violence in order to determine other issues. In the present case, for example, the wife was criticised for failing to introduce the children to her boyfriend, and for unreasonably seeking to terminate the husband's access. Her position was, in brief, that she feared the husband's reaction if she introduced the children to her boyfriend, and that the orders she sought from the court were appropriate in the context of the violence that had occurred. Thus it is necessary in the present case to make findings about the allegations of violence in order to determine a number of other issues that are important to the welfare of the children.
There may however be cases in which it is possible for the court to reach a firm conclusion on what the child's welfare requires on the basis of evidence other than the allegations in question. Is it open to the court in such circumstances to refrain from making findings on allegations of family violence even though, had the other evidence been more evenly balanced, such findings would have been necessary?
The decision in Chandler may perhaps support the view that the court has such a discretion, although as I have indicated it may merely hold that on the facts of that case the court decided that making findings on the allegations would not assist it to determine what orders would promote the child's welfare. Although I am inclined to think such a discretion exists,[27] I do not need to determine this question in the present case, because for reasons that will appear it is clearly necessary for me to make findings in relation to family violence.
If the court does have a discretion to refrain from making findings on relevant matters where it can determine the case without reference to them, on what basis should such a discretion be exercised?
It might be thought that in the above quotation from Chandler, Nygh J's reference to the parties' self-esteem and integrity, and especially his use of the phrase "fundamental principle", was intended to mean that these matters have an independent relevance, separate from the welfare of the child. Whether Nygh J meant this might be arguable,[28] but in any case in my view the only "fundamental" principle is that the child's welfare must be treated as the paramount consideration.   While the court will of course seek to avoid any unnecessary findings which would damage parties' self-esteem, ultimately all decisions, including the decision what findings to make, must be related to the central question of the child's welfare. Recent decisions have emphasised the pervasive character of this principle, which applies, for example, to questions of evidence[29] and exercise of jurisdiction.[30] The question what findings to make, and how they should be expressed, must turn in the end on the court's assessment of what the child's welfare requires.
The child's welfare may, of course, be affected by a parent's self-esteem and reaction to the proceedings. It may also be affected by whether the court has dealt appropriately with the whole matter. It may be, for example, that in some cases it is important that the child should understand that violent events were not the child's fault, or the fault of some other person.
If it is open to the court to refrain from making findings on relevant matters on the ground that the court is confident on the basis of other evidence what orders should be made, the question whether to do so will require careful consideration in each case. On one hand the child's welfare might be promoted if the parties leave the proceedings without undue loss of self-esteem, and so the court should refrain from making the findings. On the other hand such findings may be of benefit to the child in formally and appropriately allocating responsibility for what has happened, and providing a climate in which future relationships can be worked out on a proper basis.   Making judgments on such matters may well be very difficult.
Summary
I would summarise the law as I understand it in the following way:-

[2] Equality Before the Law: Justice for Women (Report 69, Part 1), 167. I should add, lest the wrong inference be drawn from this citation, that violence is of concern in custody cases whether it is perpetrated by men or by women. For a recent United States discussion, see NR Cahn, "Civil images of battered women: the impact of domestic violence in child custody decisions" (1991) 44 Vanderbilt Law Review 1041.

[3] See eg Marriage of Marsh (1993) 17 Fam LR 289 (damages); Schwartzkoff and Schwartzkoff (1992) 15 Fam LR 545 (sentencing); and the Chief Justice's Directions as to the Management of Cases Involving Family Violence (15 January 1993).

[4] Schwartzkoff and Schwartzkoff (1992) 15 Fam LR 545, 554-5.

[5] Marriage of Marsh (1993) 17 Fam LR 289.

[6] See Family Law Act 1975 (Cth), 48.

[7] See eg Smythe and Smythe (1983) 8 Fam LR 1029.

[8] Neat Holdings v Karajan Holdings (1992) 67 ALJR 170, 170-171, per Mason CJ, Brennan, Deane and Gaudron JJ.

[9] Barnett v Barnett (1973) 2 ALR 19; 21 FLR 335 at 343.

[10] Marriage of Kress (1976) 2 Fam LR 11,230.

[11] Marriage of Smythe (1983) 8 Fam LR 1029, 1035.

[12] The context, and in particular the following sentence, makes it clear, I think, that the Court did not mean that the finding would be made only if of itself it would lead to the conclusion that the parent should not have custody.

[13] Marriage of Schenck (1981) 7 Fam LR 170, 178.

[14] See eg Smythe and Smythe (1983) 8 Fam LR 1029.

[15] Marriage of Heidt (1976) 1 Fam LR 11,576, at 11,579.

[16] In support of this approach Murray J cited Barnett v Barnett (1973) 2 ALR 19 and Marriage of Jurss (1976) 1 Fam LR 11,203.

[17] Chandler and Chandler [1981] FLC 91-008, at p 76,107.

[18] Smith v Swinfield (1981) 7 Fam LR 757, 758 (NSW Supreme Court).

[19] Marriage of Jaeger (1994) 18 Fam LR 126.

[20] Recent discussions of the research literature on this issue include Janet Johnston, "Domestic Violence and Parent-Child Relationships in Families Disputing Custody" (paper presented at National Family Court Seminar, Sydney, May 1994; forthcoming in Aust J Fam Law); Patrick Parkinson, "Children Who Witness Domestic Violence" (paper given at Macquarie University, February 1994).

[21] As for example in the Canadian decision Young v Young (1989) 19 RFL (3rd) 227 (Ontario Sup Ct).

[22] Chandler and Chandler [1981] FLC 91-008, at p 76,107. This statement was quoted with approval in Marriage of Cullen (1981) 8 Fam LR 35 (Watson J, 37).

[23] M v M (1988) 12 Fam LR 606 (HC).

[24] Mills and Mills [1978] FLC 90-404; Keaton and Keaton [1986] FLC 91-745.

[25] McLean and McLean [1991] FLC 92-196 at 78,357; In the Marriage of Power (1988) 12 Fam LR 97.

[26] Marriage of Smythe (1983) 8 Fam LR 1029, 1035.

[27] See In the Marriage of Power (1988) 12 Fam LR 97, 100 ("... it is not necessary for a judge, in exercising a discretionary judgment, to detail each fact which he has found to be relevant or irrelevant, or to make an explicit finding on each disputed piece of evidence").

[28] He may, for example, have assumed that where a finding is relevant to a child's welfare it is "absolutely necessary" for the court to make it.

[29] Hutchings v Clarke (1993) 16 Fam LR 52 (FC).

[30] ZP v PS (1994) 17 Fam LR 600 (HC).

In proceedings relating to custody, guardianship and access evidence of family violence is relevant insofar as it assists the court in determining what orders will best promote the welfare of the children.[31]
[31] Marriage of Jaeger (1994) 18 Fam LR 126, (Fogarty McCall and Finn JJ). See also Barnett v Barnett (1973) 2 ALR 19; Marriage of Heidt (1976) 1 Fam LR 11,576; Marriage of Jurss (1976) 1 Fam LR 11,203; Marriage of Schenck (1981) 7 Fam LR 170; Smythe and Smythe (1983) 8 Fam LR 1029.
The court will have regard to the fact that family violence may be directly or indirectly relevant to children's welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children.
So far as the evidence allows, the court will attempt to understand the nature of any family violence that has occurred and its potential effect on the children.
Where the evidence permits the court to make findings of contested allegations of family violence, and where such findings are necessary in order to determine what orders will promote the child's welfare, the court will make the findings.[32]
[32] McLean and McLean [1991] FLC 92-196 at 78,357; In the Marriage of Power (1988) 12 Fam LR 97.
Where the court is in a position to make findings on allegations of family violence which are relevant to the children's welfare, but does not need to do so in order to determine what orders will promote the welfare of the children, it may be open to the court to refrain from making the findings.[33] If such a discretion exists, the court will exercise it on the basis of a consideration of whether the children's welfare is most likely to be promoted by making or declining to make such findings.[34]
In the present case, it is necessary in my view to make findings on the serious allegations made by the wife (and Mr M) in order to arrive at a conclusion as to what orders will best promote the welfare of the children. It is not necessary, however, to make findings on all the criticisms that each parent has made about the other.
credit
The resolution of this case depends, more than many cases do, on what lawyers call "credit", that is, on whose evidence is accepted. The parties, and their respective witnesses, differ greatly on many matters of importance to the resolution of this case. It is convenient, therefore, to consider this question at this point. With some exceptions in the case of the husband, both parents gave their evidence in an acceptable fashion, and it was not obvious where the truth lay. However on one significant issue there is corroborative evidence which in my view makes it clear that the husband's evidence was untrue, and indeed deliberately untrue.
The matter to which I refer is the circumstances surrounding the breaking of the husband's jaw in November 1991. The wife's account of this incident is set out in her affidavit as follows (paragraph 140):[35]
In or about November 1991 I was at home with my sister, ---. The husband and Tommy went out and returned about half an hour later. The husband walked in the door holding Tommy and clutching his jaw. Tommy was crying. There was blood all over the husband's face. He shouted: "That bastards got me." I was distressed and said: "What the hell has happened." The husband said, "[W] got me. He came from behind when I was holding Tommy and I fell to the ground with Tommy." I drove the husband to --- Hospital, leaving Tommy with my sister, ---. I stayed with the husband while he was treated at --- Hospital for approximately three or four hours. He had a broken jaw and I saw he was treated in surgery by having his jaw plated and wired.
The husband's response in his affidavit was to deny sentences 4, 5, 6, 7, 8 and 9. He says:
As to the balance of the paragraph, I admit the contents thereof. I admit I broke my jaw but this was done when I slipped on a step at my parents home at --- while I was watering the garden.
In his affidavit Mr J. G., the grandfather, does not respond to paragraph 140 but does respond to paragraph to 141, in which the wife had said that she heard the husband say to his parents "Piss off. You've let [W] get away with breaking my jaw. You've done nothing. I feel that half of my face is numb and [W] has to pay for it. I've paid for it and I've got this for the rest of my life." Mr J. G. denies the contents of this paragraph and says
There were no frequent fights between myself and [the husband] between November 91 and the end of 92. We have always had and maintained a very close and loving relationship.
The grandmother's response is similar.
It is part of the husband's case that the children will benefit from contact with all members of the extended family. Thus the grandmother says in her affidavit (paragraph 13): "I have a close relationship with the husband as I do with all my family. The family is very loving and close." Similarly the grandfather says, in paragraph 3, "I have a very close and loving relationship with all my family, and all members of the family are very close to each other. I am in regular contact with all members of the family." The husband says in his affidavit, paragraph 51, that both children have a close relationship with all members of his family. In cross-examination the husband also said that his loving relationship with his parents was relevant and that exposure to a loving family was a good thing for the children and was important to his case. He specifically said that the relationship between him and his brothers was also important to his case, although he said that the relationship with the grandparents was more important for the children. For this reason, I regarded evidence about this incident as relevant to the welfare of the children, and I rejected an argument put on behalf of the husband that I should exclude it on the ground of irrelevance.
When the husband was confronted in cross-examination with the wife's account as set out in paragraph 140, he said that [W] did not break his jaw. He was then asked whether the wife must be lying and gave the curious answer that he did not recall saying that it was [W] who broke his jaw. He then said that he did not believe that he said that. This seems to me to be an odd answer if the husband's version is true. If in fact he broke his jaw in the way that he indicated he would surely not have conceivably said that [W] had broke it, and he would have firmly denied that he made such statement, rather than saying that he did not recall making it.
The wife tendered documents from the --- Hospital relating to the husband's treatment at the time. In my opinion these documents are admissible as business records. The relevant pages are marked with yellow stickers. The first such page, headed "Accident and Emergency U-L dated 28 November 1991" records the husband's arrival time as being 14.51 and states
gentleman presents following domestic dispute, presents with obvious fractured jaw.
The second document headed "Accident and Emergency Nursing Admission and Assessment Sheets" states the following under the heading "Present Problem"
"Pt presents after allegedly being assaulted - hit on right side of jaw from behind ..."
The next identified entry is dated the following day, 29 November, and is an entry by a social worker. It reads as follows:
Thank you for referral 40 y.o. [man] says allegedly assaulted by his brother. Spoke to Pt & wife & husband today about his legal stand & referred to approp Centres if they pursue this. Also discussing Detox/Counselling for this Pt's abuser/brother.
Even when confronted with this evidence the husband did not change his story.
The husband gave limited further evidence on this subject in re-examination. He was asked who did the talking at the hospital and he said that the wife did and he could not talk and was sedated. This evidence, however, did not establish that he was unable to talk on the second day, and it was not put to the wife that she or anybody else gave false information to the hospital personnel.
I am quite satisfied that in relation to this matter the wife's version of events is correct and the husband has deliberately intended to mislead the court. Apart from the evidence from the hospital records, I have had regard to the husband's equivocal answers in relation to this question and his manner of giving them; the husband's failure to provide any supportive or corroborative evidence for his version of events; and the husband's incomplete and implausible attempt to suggest that he was unable to communicate with the hospital personnel.
This is a most serious matter. In the first place it illustrates that the husband is willing to deliberately mislead the court about something which, on his own case, is relevant to the welfare of the children. It has the further conclusion of preventing the court from understanding what was, and is, the relationship between the brother [W] and the husband. Because of the way the husband presented his case, he has said nothing about the significance of this incident. The court therefore does not know whether there is a continuing pattern of violence between the husband and [W] or whether this was a particular incident. If it was an isolated incident the court has no information about why it took place. More generally, having regard to my finding on this matter, I am reluctant in general to accept the evidence of the husband and in general prefer the evidence of the wife on matters that are in dispute between the parties.
applying the legislative guidelines
I shall now deal with the various matters set out in section 64(1), quoted above, and deal with the relevant evidence under each heading.
Paragraph (b) - Wishes of the Child
This paragraph is not applicable to the present case. Given the children's age, their wishes are not of the kind that can be of great assistance to the court, and, as it happens, the older child is clearly unwilling to discuss the matter. There is no satisfactory evidence about what their wishes are. Of course, the relationship between the children and other people is of great importance and will be given considerable weight.
Paragraph (ba) - Reducing Further Proceedings
This paragraph is not of assistance in the present case, since I see no reason to think that either the husband's proposals or the wife's proposals would be more likely than the other to provoke further litigation.
Paragraph (bb)(i) and (ii) - The Children's Relationships with Parents and Others and the Effect of any Separation
These paragraphs are important in the present case. There is considerable evidence relating to the question whether the husband or the wife has been, and is, the "primary caregiver." It is appropriate to consider two aspects in this connection. The first aspect is the amount of contact and responsibility and care that each parent has provided over the term of the children's lives. The second matter to consider is evidence as to the children's present attachments to both parents.
As to the first aspect, the wife gives detailed evidence about her involvement with the children and her attention to various matters in paragraphs 26 to 59 of her affidavit. A brief summary of these paragraphs would be that she played the major part in caring for the children and attending to the various household tasks and that the husband tended to be preoccupied with his own affairs, indulging in relatively set routines, and spending a considerable time gambling and affected by marijuana or alcohol. I do not find it necessary to consider all these criticisms of the husband.
There is considerable evidence from other witnesses supporting the view that the wife played a large part in the care of the children. I refer in particular to the affidavit by [B.B.], the wife's sister, paragraphs 3 to 6.
I refer also to the affidavit by [A.B.], the Play Session Co-ordinator of the --- Leisure Centre. I found her to be an impressive witness, and I note that she is a Play School Co-ordinator rather than a personal friend or relative. Her evidence, notably paragraphs 6, 13 and 18 of her affidavit, presents a picture of a very involved and attentive wife. She speaks highly of the wife's interaction with the children in her presence. I note that she says in paragraph 13
I have never seen the wife lose her temper with either of the children. In my presence she has always handled the children with patience and understanding.
The affidavit by [R.K.], a Nursing Sister and close friend of the wife, contains further supportive material based on her observations of and communications with the wife. I refer in particular to paragraphs 9, 16 and 17.
Finally, I refer to the affidavit by another friend of the wife, [K.N.]. Her affidavit, in particular paragraphs 8, 23 and 24 contain material that also supports the close relationship between the wife and the children.
Some of these witnesses are friends or relatives of the wife and no doubt supportive of her in these proceedings. Nevertheless I found them all convincing witnesses and I accept their evidence. I take into account the fact that in various ways their direct observations of the wife were limited to particular periods and times of day. I also take into account that they were in communication with the wife and may well have tended to see things from her point of view. With all these reservations, however, I regard their evidence as persuasive and I accept it.
The evidence of Doctor W is from a professional person rather than a person who is a friend or relative of either side. I found him an impressive witness. In paragraph 10 of his affidavit he says this:
I have observed that the children are strongly bonded to their mother. On 18 December 1993 I had a consultation with the wife and Billy. I observed that Billy was distressed at any time he was away from his mother and that she was unable to put him down without him crying. He was happy while in his mother's arms. The wife said to me: "I think he may have a middle ear infection." I could find no physical problem but noted that he was distressed at any separation from his mother. I discussed the concept of separation anxiety with the wife on that occasion.
For his part, the husband gave evidence to the effect that he was very involved with the children's lives and claims to have been at least an equal caregiver for both children. His evidence is supported by that of his parents. Although much of their affidavits relates to the periods when he had access with the children, and to problems arising on access changeovers, it also includes some material that is relevant in the present context. For example, the grandfather's affidavit, paragraph 8, is in the following terms.
On occasions when we were invited to dinner it was always the husband who cooked the dinner and prepared the food. From my observations on these occasions, I observed that the husband also prepared Tommy's' food and fed him and bathed him prior to us having dinner. The wife lent only minor assistance in the preparation of the food for the household from my observations. Although, she assisted with the bathing, I was also aware from my observations, the husband did the majority of the shopping for the household and attended to the majority of the domestic cleaning.
In paragraph 9 he says, in part
... After the birth of Billy, the wife left Tommy predominantly in the husband's care. Up to the time of separation the wife from my observation spent very little time with Tommy, spending the majority of her time sleeping or with Billy. It appeared to me from my observations that the wife's attention and affection towards Tommy diminished substantially over this period of time. Tommy's needs and every day care was left largely to the husband I recall the wife saying to me on a number of occasions after Christmas 1992, words to the following effect: "I can't cope with the children, I need a trial separation, I need space.
Similarly, the father's mother, Mrs L. G., says in paragraph 21 that
the husband was predominantly responsible for all the household duties including the washing, cooking, shopping and cleaning.
Not all of this material is in conflict. For example, it is quite possible that the husband played a larger part in preparing the meals and doing other things on the occasions when his parents came visiting than he did on other occasions. It is not necessary or indeed possible to make precise findings on these matters. However, broadly speaking I accept the evidence of the wife and her witnesses as to her contributions during the whole period of the marriage leading up to the time of separation. To the extent that her evidence is in conflict with his, I prefer the wife's evidence.
Responsibility for children's care is not only a matter of spending time but also accepting responsibility for decisions. There is considerable evidence for the view that the wife took responsibility for decisions relating to the children, and that the husband accepted this. I refer in particular to the evidence that it was the wife who, almost always, took Tommy to Doctor W. The husband's evidence is that he came with her and would wait either in the car or in the waiting room. I have some doubts about this but even assuming it is true, and even assuming that, as the husband says, the subsequent decisions were reached after discussion between the husband and wife, it seems to me that the arrangements relating to visits to Doctor W indicated that the wife played a somewhat larger part than the husband in the management of Tommy's   health problems. Similarly, the husband's departures on several occasions to go on holidays in [---] and [---] at around the time of separation shows, I think, that he was willing to leave the wife with responsibility for one and on some occasions both children.
There is considerable evidence for the view that the wife was under some stress following the birth of Billy. In my view it is reasonably clear that following Billy's birth she found it difficult to cope with both children. It is also clear, I think that not long after this the relationship between her and her husband was becoming increasingly difficult. There is no doubt that during this period the husband took a larger part in the care of Tommy than he had previously done. I am however, not inclined to accept his evidence to the effect that the wife said that she could not cope and asked him to take over. Even if she did make such comments, however, in my view they related to a particular period of difficulty following the birth of Billy and did not represent a permanent attitude towards the children or the allocation of responsibilities between the parents.
In terms of the past involvement of the parents, therefore, my findings are as follows. Both parents have been considerably involved with the children, spending time with them and playing a part in their care. Broadly speaking, however, I find that the wife played the major role, both in terms of time and effort and in terms of taking responsibility for decisions. I find, however, that the husband was very considerably involved and I note in this connection that he was involved in consultations with the specialists about Tommy's health. It is probably true that his involvement was greater than that of many husbands and I am sure that it was of benefit to both children. I also find, as I have indicated, that during the difficult period following the birth of Billy he played a particularly valuable role in taking responsibility for Tommy and allowing the wife to attend to the baby's needs. I note his success in settling Tommy on the occasion referred to below when he returned to the home and found the wife drinking champagne with a friend.
Turning then to the question of the children's current primary attachments, it is important to stress that the evidence makes it clear that the children have close attachments to both parents. However, it seems to me that the evidence suggests a particularly close attachment with the wife. The counsellor's observations of the children in the presence of their husband, and the grandparents (pages 16 to 18), show, as the counsellor concludes, that the children had a close relationship with them. Commenting on the observations relating to Billy, the counsellor's report includes the following passage:
Unlike Tommy, Billy was not interviewed separately because he became distressed pursuing his wife on the several occasions when invited to join the counsellor in the assessment room. Of greater significance was the ease at which he was easily comforted by the wife, later pushing away the counsellor fearing that the counsellor would separate him from the wife. Such behaviour indicates that Billy has a strong attachment to the wife and feels safe in her presence.
This passage in the report, and the related findings, were the subject of considerable criticism. It was suggested on behalf of the husband that this represented an unfair test, since the counsellor had not apparently done the same thing when Billy was with the husband. The counsellor conceded that no similar event had occurred in the presence of the husband. However, she said that it was not a test but that she simply drew the conclusion from the child's behaviour that there was a strong attachment to the wife. In my view the particular incident was only part of the evidence on which the counsellor relied in forming her conclusion; she said as much in her oral evidence.
The force of the criticism, I think, is that had the same exercise been carried out in the presence of the husband, the child's behaviour might have been the same. However, the counsellor relied on other evidence. In particular, at page 17, referring to the interview with the children and the husband, the counsellor says this:
... despite not having previously met the counsellor, the children easily responded to the counsellor, climbing over her while the husband was making their lunch, possibly indicating that while in the husband care they attached to any adult.
It seems to me that the counsellor was entitled to take into account the behaviour referred to along with all the other observations and interviews on which she relied. Her conclusion, which I may briefly summarise by saying that the children were strongly attached to both parents but more strongly attached to the wife, seems to me to be consistent with the other evidence available, and I accept it.
I should add that the phrase "primary attachment" should not be treated as some kind of magical or overwhelmingly important finding. Children have attachments of varying strengths to a number of people. The fact that one parent may be characterised as having the children's primary attachment does not mean that other attachments are unimportant. In the present case, in particular, it seems to me that the most important finding is that the children have strong attachments to both parents. It is of significance, but by no means a decisive matter, that the children have a somewhat stronger attachment to the wife than to the husband.
I should also refer to the children's relationship to each other. It seems to me clear that their relationship is a close one and that whatever orders are to be made relating to custody, they should remain together. I accept, in particular, the counsellor's evidence on this matter.
I also take into account the children's relationship with other significant people. It is clear that they have no significant relationship with Mr M at this stage. On the other hand they do have a close relationship with the paternal grandparents.
Paragraph (bb)(iii) - The Desirability and Effect of any Change in the Existing Arrangements for the Care of the Child
There is of course considerable overlap between this paragraph and other paragraphs but it is of particular use in that it requires the court to give consideration to the existing situation and the various alternatives that are proposed. In my opinion the existing situation involves too much changing of care. I believe that the evidence shows that the children are affected by the unsettled nature of the present arrangements in the context of the hostility between the parties and many of those close to them. In these circumstances I am satisfied that it is desirable that one parent or the other should have custody and the other parent should have generous but regulated access.
Paragraph (bb)(iv) and (v) - The Attitude to the Child and to the Responsibilities and Duties of Parenthood Demonstrated by Each Parent; and the Capacity of Each Parent or any Other Person to Provide Adequately for the Needs of the Child
Since there is considerable overlap between these paragraphs it is convenient to take them together. It is necessary to deal in some detail with the incident occurring in March 1994.
On 19 March the husband had taken the children for access. Tommy had a cough and the husband's evidence is that during the night of Saturday 19 March he was coughing. The husband went to the medicine chest to prepare the nebuliser machine to administer his drugs and discovered the Bricanyl solution was out of date and could not be used. However, he then administered Bricanyl through a volumatic puffer and this seemed to relieve the child's symptoms. The husband said that he remained up with the child for the rest of the night. The next morning at 8.00am he telephoned the wife at the N... premises and told her that the solution was out of date and she said that she would get some more and ring him back later. He contacted her at about 4.00pm that afternoon and she said that she would leave the Bricanyl and a steroid puffer in the letterbox. The husband collected those materials from the letterbox later that afternoon, at about 4.20pm. The husband's evidence is that at about 12.30am on Sunday 20 March Tommy started coughing again and when the husband went to prepare the nebuliser machine he found that the vial was missing. He telephoned the wife without success and then administered Bricanyl using the volumatic and stayed up with Tommy for the rest of the night.
At 5.30am he tried to telephone the wife but again there was no answer. He was concerned for Tommy as the child was distressed and was having difficulty breathing and the husband wanted the nebuliser machine in working order in case he needed it although, as he says in his affidavit, the child's condition was "under control." He says that at 5.45am both children were awake so he decided to drive to the N... premises to see if the wife was there to get the vial.
He arrived at 6.00am. Her car was in the car port. He took the children to the rear of the house and "tapped" several times on the bedroom window. The blinds were down so he could not see if the applicant was there or not. After about 10 or 15 seconds he heard the bedroom door close and the applicant appeared at the window next to the back door wearing a dressing gown. He says that a conversation then took place as follows:
[33]         McLean and McLean [1991] FLC 92-196 at 78,357.
[34]         See Hutchings v Clarke (1993) 16 Fam LR 52 (FC); ZP v PS (1994) 17 Fam LR 600 (HC).
[35]         The husband's counsel objected unsuccessfully to paragraph 140 in its entirety on the ground that it was not relevant.

Respondent"I have been up most of the night with Tommy. Can you let me in. The vial for the nebuliser is missing."

Applicant      "You can't come in."
Respondent   "I need the vial."
Applicant      "You look very stressed. You can't have it."
Respondent   "Please give it to me [...], Tommy is not well."
According to the husband's version she then walked away from the window. He could see it was unlocked from where he stood on the stairs and he reached up and pulled it open. He then climbed through the open window. He went into the kitchen as he knew the vial would be in the cupboard where the medicines were kept. He says that he did not touch the applicant or go near her. When he was in the kitchen he heard a noise "like a thud" from the bedroom which is adjacent to the kitchen. He opened the door of the bedroom and saw a naked man he had never seen before crouching down beside the far side of the bed. The wife was standing in the hallway. He then went to leave and as he went back through the kitchen "on impulse", he picked up a brown bag which was on the kitchen bench and took it with him. He opened the back door withe the keys that were in the lock and took the children, who had remained outside, back up the side passage. He says he dropped the keys somewhere there. He then left the premises and returned to M--. He says that he was in the N-- house for no more than thirty seconds.
The wife's version is as follows. She says she heard a "banging" on the bedroom window at about 6.00am and heard her husband yelling "let me in, let me in." She went to the back door and saw him and the two children. He asked her to open the door and she refused. He then said "You've got someone in there and you had someone in there last night." The husband then admitted that he had been watching her. (The wife says that at about 2.00am on the Sunday she heard noises outside her bedroom but did not do anything at that time).
She says that the husband then became very angry, jumped on to an air conditioning unit outside and forced open the rear window, breaking the lock by forcing it open with his hands. The wife was then yelling at him "get out." She says he climbed in the window and pushed her and she fell against the wall. He went into the main bedroom, forcing the door open and rushing in. She saw Mr M sitting on the floor. The husband went up to Mr M and the wife saw him hit Mr M twice with a closed fist, once on the face and once on the upper chest. She ran to ring the police and the husband followed her into the hallway. He grabbed the telephone and returned to the main bedroom. He then grabbed the wife by the arms and hit her under the arms around the ribs.
According to the wife she then saw the husband rip two brass knobs off the brass bed and throw them at Mr M. Both knobs hit him on the body. While this was happening, says the wife, the two children were standing outside on the back porch and she could hear Tommy crying and Billy was also crying. She said that she did not let them in as she did not want them to see what was happening. She says that after he left the house she saw him pick up Billy and say to the boys "You're mother has a man in there. Your mother is a slut" and as he left the building she heard him yelling out "You fucking slut."
There are two important issues that arise in relation to this matter. The first is which version of the incident is to be believed. The essential difference between the two incidents, it seems to me, that on the wife's version the husband broke into the house and assaulted her and Mr M, whereas on the husband's account he did nothing of the kind. Even on the husband's version, however, a second issue arises namely whether his behaviour was appropriate.
Turning to the question which version of the incident is true, I should refer to the evidence by Mr M. This evidence is contained in his affidavit (paragraphs 3 to 11). Broadly speaking his version of events is similar to that of the wife. There are some inconsistencies. For example he refers to a "tapping" on the bedroom window and says that he heard a mans voice "calling." I do not regard these differences as having much significance.
The police were duly called and the husband prosecuted. The proceedings were heard in the Local Court at Hornsby on 5 September 1994. The result of the proceedings was that the court made an order, both in relation to assault on the wife and assault on Mr M, discharging the husband conditionally upon his entering into a good behaviour bond. This order was made under section 556A which allows the court to make such orders without proceeding to a conviction. Such orders are only made, however, where the court finds that the offence has been committed.
Returning now to the incident on 20 March, and having regard to the serious damage to the husband's credit arising out of my finding relating to his broken jaw, and having regard to the other evidence, I prefer the evidence of the wife and Mr M to that of the husband in relation to the incident of 20 March 1994.
This incident shows the husband in a poor light. It is not necessary to decide whether or not he had been waiting outside the house, as the wife suggests. Nor is it necessary to decide whether he went to the house with a deliberate intention of invading the wife's privacy and causing trouble. It is sufficient to find that he took the children out and in their presence, climbed in the window and assaulted the wife and Mr M. This is an incident which must have caused great distress to the children. It shows that the husband was willing to resort to violence in order to achieve his objectives. In my view it was completely unjustified by any consideration of the needs of Tommy from a health point of view.
The wife gives evidence of a number of complaints she has about the husband's behaviour during the marriage and after the separation. They include allegations about his drinking and use of marijuana and his comments to her during the marriage. It is not necessary to set out all the details but an example is contained in paragraph 35. In that paragraph the wife says:
In 1992 when the husband attended the Real Estate course at --- Tafe I continued to do all the cleaning and shopping and cooking. When he came home I saw him check that all the housework was done. If it was not done to his satisfaction he would say: "My mother managed with three children. What's your problem?" This was said in front of the children. He frequently turned to Tommy in the middle of these outbursts and said: "You have a hopeless mother." Tommy often cried and often wet his pants after arguments between the husband and myself.
At paragraphs 74 and following the wife gives evidence of an incident in February 1990. The wife's version is that she was sitting with a friend at about 11.00pm when the husband returned from a local pub. Tommy had been crying all day with colic and she had nursed him for most of the day. When the husband walked in Tommy was crying in his bed. The husband went to his room and the wife followed him. The husband then said to her "You negligent wife. How can you leave this child crying?" He then punched her in the back. When she went into the bedroom later that night she saw her wedding photos ripped into tiny pieces in a pile on the ground and a silver oval frame was smashed.
The husband's version of this incident is that he found the wife and her friend [J.C] drinking champagne, talking loudly, laughing, slurring their words and smelling of alcohol. When he entered the room he found Tommy in
an extreme state of distress. His colour was bright red, he was screaming and crying and appeared to me to be in considerable distress.
He says that he did not punch the wife. He says that he remained in the room and stayed with Tommy for ten or fifteen minutes and succeeded in settling him down. The wife admits that the husband succeeded in settling Tommy down. I prefer the wife's evidence relating to this incident.
The next allegation by the wife is that in about May 1990, in the course of an argument, the husband "grabbed my hair and pulled a large piece of it out. All of the time repeatedly shouting at me: "You slut, you ungrateful bitch." The wife's version of this incident is supported by the evidence of her sister, who states in paragraph 11 of her affidavit that she saw the bald patch on the wife's head. The husband denies it, but again I prefer the wife's version of this event.
There are some other allegations by the wife which I may summarise briefly. She says that the night of the incident with her hair the husband kicked her hard in the ribs in bed and she saw Doctor C at the --- Medical Centre and her ribs were painful for a three months after the incident.
In 1990, about July, she says that the husband tipped soup that the wife had made all over the kitchen floor. When the wife screamed at him he waved his fist close to her face and shouted "I'll smash your face in. Charity begins at home."
In November 1992 the wife says that the husband ripped a piece of the brass bed and said "This is your head", and then turned to Tommy who was in the room and said "You're wife is a fucking cunt, cunt, cunt, cunt". She also alleges that in February 1993 the husband broke an antique copper kettle and also smashed a Lladro figurine and that he also picked up a vacuum cleaner and threw it across the room, damaging a chair.
There was also an incident on 21 March 1993 involving verbal abuse and some physical violence. The police were called on this occasion. This incident, according to the wife, involved other members of the husband's family as well. She says in her affidavit, paragraph 84:
My sister... and her husband... arrived and I left with them for about twenty minutes. When I returned I saw the husband's mother, father and brother .... Mr G. senior said to me: "I will fight you through every court in the land. [The brother] said to me: "I've met scum like you who make up things that happened when they don't." I said to the wife: "You know this is not made up. Look what's he's done. He frightens me." The wife replied: "Oh, you've got such a thing about material objects."
On 30 May 1993 on an occasion when Tommy was crying, the husband put Tommy to bed and then "pushed the wife down the length of our glass enclosed verandah" and "cornered" her. He "repeatedly spat all over me including my face and chest, for approximately five minutes." He then pushed her out the front door, using abusive language and slammed the garden door shut and shook his fist at her. There was further verbal violence, and at one point the husband threw a cup of hot coffee at the wife and then threw the coffee cup across the road where it smashed.
These allegations of violence are, with one or two inconsequential exceptions, denied by the husband. However, on these allegations I prefer the evidence of the wife to that of the husband.
I also accept the wife's evidence relating to the incident on 2 February 1994 when the husband threw the stroller at her and hit her in the view of the children (paragraph 93) and on 14 March 1994 the husband hit her on the arm in front of the children (paragraph 95).
It follows from these findings that the husband has engaged in acts of violence at various times during the parties' relationship. Some of these have involved or been in the sight and/or hearing of the children. The court's understanding of the nature of the violence and its potential impact on the children has been greatly limited by the approach taken by the husband, who has, in substance, simply denied that the violence occurred. The court is therefore unable to know whether the husband now regrets the violence, how likely it is to recur in particular situations, and how it affects the husband's parenting. I would be more comfortable about the children's welfare if I had some indication that the husband accepts responsibility for past violence and has taken measures to prevent it recurring and, perhaps, to attempt to minimise any damage already done to the children. But unfortunately due to the husband's approach in these proceedings no such evidence is available. In these circumstances, I conclude that the violence that has occurred is a serious reflection on the husband's attitudes to the responsibilities and duties of parenthood and his capacity to provide adequately for the emotional needs of the children.
Another matter that has been canvassed in evidence is the husband's handling of a number of incidents in which he apparently thought at the time that the children might have been physically or sexually abused by the wife, or at least that she had failed to respond adequately to physical problems. On these matters it seems that the husband was eventually satisfied that no abuse or neglect had occurred. However, he did make contact with the welfare authorities in relation to some of these matters. I do not regard these events as having a great deal of relevance in these proceedings but they do cast some light on the husband's attitudes to parenting. I think that he would have been better advised to have communicated with the wife, if necessary by letters through his solicitors, to find out her version of the story before notifying the authorities. More importantly, I was unimpressed with his evidence to the effect that he did not know whether the wife was angry about the notification to the welfare authorities and his comment that if she had nothing to fear "why would she be angry?" In my view this shows either a remarkable lack of understanding of the impact of such a notification on a parent or an indifference to it. On any view it shows a limited appreciation of the obligations of a parent.
Looking at the husband's case overall, I am struck by the fact that it seems to have attempted to make the most of all possible perceived failings on the part of the wife, mentioning quite a number of matters that the husband accepted that he now realised were not reasons for concern.   His persistence in these criticisms is consistent with the counsellor's comment in her report to the effect that the husband could find little or nothing positive to say about the wife. Yet towards the end of his evidence, the husband said that he had no criticisms to make of the wife's parenting.
Another aspect that was canvassed in evidence was the criticism that the husband made in Tommy's presence of the medication and dietary requirements. I do not attach much importance to this but on the whole I am inclined to agree with the counsellor that a more sensitive approach would have been to provide positive reinforcement for the children relating to Tommy's special food requirements.
Another matter mentioned by the counsellor was that the husband's proposal which involved a co-parenting arrangement was, in the light of the ages of the children, such as to indicate "that his understanding of parenting and needs of young children is limited." I accept this evidence. It seems to me that the husband was not sufficiently sensitive to the stress that can be caused to children by the kind of unsettled relationship that is created when parents who are in great conflict attempt a co-parenting arrangement. In this respect, it seems to me that his mother may also have a somewhat insensitive approach. In cross-examination, when the grandmother was speaking of Billy as a "sad and sorry little boy" she attributed this to the wife's handling and did not appear to understand or concede that some difficulties might have arisen for the child by the access arrangements. Again, she was asked about concerns arising from the split custody arrangement and she said that she felt it was "fair" that each parent had the same time with the children. This seems to me to be an attitude that reflects the view that these arrangements should be fair as between the parents rather than maximise the welfare of the children.
For these reasons, I accept the evidence of the counsellor that the husband's understanding of parenting and needs of young children is "limited". As to matters on which the husband and the counsellor are in conflict as to what was said, I prefer the evidence of the counsellor.
A related matter is the capability of the husband to sustain a positive image of their wife. I do not propose to deal in detail with all the evidence relating to this aspect. In particular I do not find it necessary to make specific findings about remarks made by Tommy and the extent to which the husband may have contributed to them. However, it is sufficient to say that the husband's presentation of his case in these proceedings, combined with the evidence of the wife about many of the abusive and insulting things that he said to her and about her in the presence of the children leads me to agree with the counsellor that it is doubtful whether if he were to have custody he could sustain in the boys a positive image of their mother.
Before leaving this topic I should emphasise something that I have said earlier in this judgment. This is that although it has been necessary for me to be critical of his parenting in a number of ways, the father is unquestionably a father who loves his children and who should remain in contact with them. It is necessary in this case to compare the relative merits of both parents, and for that reason I have felt it necessary to explore in some detail the husband's attitudes to parenting and his capacities as a parent: the Act, indeed, requires me to do so. Despite these criticisms, however, I would stress that the husband is in my view quite capable of caring for the children adequately and it is in their interests to maintain a close relationship with him. The same applies to his parents. The evidence makes it clear that the husband has a capacity to attend to the needs of the children. I am impressed by his attention to Tommy's medical needs and to the fact that he has built up a separate supply of medical equipment, having regard to the wife's occasional failings in this area. I also take account of the husband's success in settling Tommy down on the occasion where the wife was entertaining a friend. I am satisfied that both the husband and his parents have provided a great deal of love and happiness to the children and will continue to do so.
I now turn to the position of the wife in relation to this paragraph. The wife's case is significantly different to that of the husband. In her affidavit material, she acknowledges that at particular times the children's behaviour has been a significant concern. She has also admitted in her oral evidence that she did on some occasions fail to keep the medical equipment complete and up to date in the medicine chest. She also admitted that she overlooked a note from the school relating to Tommy.   spots. It may well be, too, that she was less than thorough in identifying the spots, or rash, on Tommy's body.
A matter of particular significance relates to the occasion when she was drinking champagne with a friend. As I have indicated I prefer her evidence on this matter to that of the husband, and I am not prepared to find, therefore, that the child Tommy was in such a distressed state as the husband indicates. It may be, however, that she was less attentive to Tommy than she might ideally have been. However, I accept her evidence that she had been caring for Tommy during the whole of a difficult day. I do not accept the husband's evidence to the effect that she was drunk, and she was not out of earshot or unwilling to return to look after Tommy when it was necessary or appropriate to do so.
Another area of criticism of the wife relates to her behaviour at access changeovers. There is detailed evidence on this matter by both the wife and the husband's parents. It is quite clear that these changeovers have been marked by arguments and conflict. I do not find it necessary to make detailed findings on which version to accept in relation to these various incidents. On the whole, I am inclined to the view that on these occasions there were angry interchanges among many of the adults involved. On the whole, however, I think that the wife's version is more likely to be true. The main relevance of this evidence, in my view, is that the court should take care to make orders relating to access which minimise the chance of such angry interchanges recurring. Although it is correct to say that on such occasions those involved with the children should not behave in ways that will disturb the children, I think that the behaviour of the adults with the children on the access changeovers is likely to be different from the way they cope with the children on their own. I am satisfied that in general all the adults concerned look after the children well when they have the care of them.

I have given careful consideration to the evidence relating to the bruising of Tommy, the rash, and the massage incident, and I am satisfied that there has been no abuse by the wife and no failure to obtain appropriate medical attention. In this connection I note that the husband in his evidence said that he had no complaints to make of the parenting provided by the wife of the children.
In my view the wife's parenting of the children has not necessarily been ideal. She herself has admitted that her attention to the medical equipment has not been perfect. I think it is clear that after the birth of Billy she went through a difficult period and I think that she appreciated the assistance of her husband in taking Tommy with him on occasions during this period. I am impressed, however, by the wife's evidence to the effect that she responded to her problems by seeking assistance from appropriate sources. I accept her evidence relating to her seeking advice relating to techniques to be used with children, and I note in this connection that there is corroborative evidence in the records of the --- Child and Family Health Clinic (exhibit W2).
The wife was criticised in cross-examination on the grounds that she wished to restrict access to the husband. However, in view of the findings that I have made relating to the husband's violence, I think there is no substance in this criticism. Nor do I think that it is true, as was suggested in cross-examination. that her attitude to the proceedings was marked by a vendetta against the husband.
I note that there is evidence that the children's behaviour, which has been worrying at times, has improved in recent months. In relation to the wife's care of the children I accept the evidence of her witnesses as well as her own evidence. In particular I accept the evidence of []. In my view the wife has not always found it easy to manage the children but has, as I say, obtained appropriate advice, has developed sensible techniques which appear to work well, and the children's behaviour has improved in recent times.
It is part of the husband's case that Tommy was ill more often when with the wife than when he was with the husband and that the inference to be drawn is that the care that they received from the husband was more robust and sensible and less anxious. I am satisfied, however, on the basis of the wife's evidence and that of Doctor W that the wife's care has been appropriate.
It is also said that the children have behaved very well and been no problem while in the husband's care whereas the wife has indicated that their behaviour has been difficult at times when they were with her. For reasons already given, I am very reluctant to accept the husband's evidence on such matters and I am not prepared to find that they are as well behaved with him as he has suggested.
Another criticism of the wife has been in relation to Mr M. It has been suggested that she has only continued the relationship with Mr M in order to obtain custody in these proceedings. She was also criticised for not having introduced the children to Mr M. Her explanation was that she did not wish to do so for fear that this would provoke a response by the husband. In view of the findings that I have made relating to family violence, this seems to be a reasonable fear and I accept the wife's evidence on this point. It was not necessarily the appropriate or wisest course for her to pretend that Mr M was a computer repair man, and it may be that she would have been better advised to introduce the children to Mr M, notwithstanding her fears about the husband's reaction. Nevertheless, I regard the decision that she and Mr M have made in this matter as a reasonable one in the light of the situation that confronted them. I accept the evidence of the wife and Mr M that their relationship is a serious and potentially permanent one, and that Mr M intends, once the position has become settled, to play a larger part in the children's lives. Having seen Mr M in the witness box I believe that it is likely that he would be a positive influence in the children's lives.
The wife was also criticised for her attitude to the husband. It is quite obvious that her attitude to the husband is a critical one. In my view she has a genuine fear of him. However, I accept the evidence of Mrs V that her view of him is not completely negative and this coincides with my own view of her, having seen her in the witness box.
Considerable effort was made on the part of the husband to show that Mr M regarded the children as a "hindrance". Mr M attempted to explain that when he gave evidence in the local court on 5 September he was asked questions about whether he was making allegations only in order to help the wife in her application for custody. It may be that he said that the children are a hindrance but he said that if he did say that it would have been in a particular context namely that he was seeking to explain that the children would have been a hindrance in his relationship with the wife, and therefore that it would not have been sensible for him to support the wife's claim for custody. I am not prepared to make any finding about the precise words used by Mr M in the proceedings before the Local Court but I am satisfied that whatever he said he does not in fact regard the children as a nuisance or a hindrance to him and that he is willing to enter into a full relationship with them when he and the wife think it is appropriate to do so, namely after the upset caused by these proceedings has settled down.
Paragraph (va) The Need to Protect The Children From Abuse etc
I have already indicated that I am satisfied that the wife has not abused the child and I note that in these proceedings the husband does not make that allegation. However two matters require consideration.
The first is the denigration of one parent by the other. Such denigration, especially if repeated, can, I think, psychologically harm the children. I have taken into account the evidence relating to such denigration. It is sufficient to say that the evidence suggests that there have been angry and unfavourable comments made by both parents about the other, sometimes in the presence of the children, and between the grandparents and the wife. It is not necessary to make specific findings but on the whole I am inclined to think that the amount of denigration of the wife coming from the husband and his parents is at least as great, and probably greater, than any criticism of the husband by the wife.
The most important aspect of this is that such denigration must cease. It is quite inconsistent with the welfare of the children. I hope that the resolution of these proceedings will create a stable situation in which both parents, and other members of their families will not perceive any such denigration to be in their interests.
The other aspect that comes within this paragraph has to do with violence. There is no suggestion that the husband has been or will be violent directly towards the children, but I have found that on occasion he has been violent in their presence. Although this is a matter of concern, I note that the wife does not seek to suspend or unduly restrict access on this ground. I would emphasise that any further physical or verbal violence by the husband will be taken very seriously in connection with any applications that may be made relating to access. However, on the evidence before me I am satisfied that there are advantages to the children of maintaining a close relationship with him.
Paragraph (vi) - Any other fact or circumstance
There are no factors arising under this paragraph that have not already been taken into account. I should add that I have taken account of all the evidence in these proceedings but it has not been necessary for me to refer in this judgment to all of it. I have attempted to deal with the matters which seem to me to be of the greatest importance in resolving the questions that I am required to resolve.
Custody: conclusions
Having regard to all the matters mentioned above, I am satisfied that it is in the children's welfare to be placed in the custody of the wife.
Guardianship
I note that the wife reserved her position relating to guardianship. No detailed submissions have been made to me about this matter. Despite the findings I have made, in my view it is appropriate that the court's orders should retain the position as set out in the Act, namely that both parents are guardians of the children. It is appropriate that he should continue to play an effective part in their lives, and share in the long term-decisions that have to be made, although the wife, as the person with custody, will have responsibility for the children's day to day welfare. I believe that the children have much to gain from their relationship with him, and it is an important acknowledgment of this that he should retain the guardianship given to him by the Act. It is therefore appropriate, given the close relationship between the husband and the children and his undoubted love for them and concern for their welfare, that he remain a guardian.
Access
I now turn to the question what access arrangements should be made. The proposals of the parties have already been set out. I note that the husband's proposals are more detailed than those of the wife. I propose to make orders to the effect that until Tommy goes to school the husband shall have access to both children every second weekend from 4pm on Friday till 5 pm on Sunday (and 5 pm Monday on long weekends) and for half the school holidays. After Tommy goes to school, the access should commence after school on the Friday. I am inclined to the view that the arrangements for changeover as set out in the husband's proposals are suitable, but if necessary I will hear argument on this. I am not inclined to make an order for access on Wednesdays (as sought be the husband) against the wishes of the wife, but if there is agreement I think that such access would be desirable and I invite the parties to give consideration to this. I think the husband should also have access on Father's Day each year as provided in the husband's proposals, paragraph 8, and on alternate years on Christmas Day, as provided in paragraph 9. I invite the parties to consider whether agreement can be reached on the appropriate access orders; if not I will hear argument and make orders.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established