Keele and Nesci - [2010] FMCAfam 1318

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEELE & NESCI

[2010] FMCAfam 1318

FAMILY LAW – Parenting – application by a father to spend time with children aged 13 and 9 – children have lived with the mother since the parents separated in February 2005 – neither child spent time with the father between April 2005 and September 2009 – younger child currently spending supervised time with the father at a contact centre – older child refusing to spend time with father – father seeking orders that both children spend time with him on alternate weekends and during school holidays – where the father was violent to the mother during the relationship – where the children reported witnessing some violence – where the father denied the violence and said that the children’s ‘memories’ were the result of the mother’s influence – where the father has a deeply entrenched negative view of the mother – whether the children would be at unacceptable risk of psychological harm if they spent unsupervised time with the father – whether there would be any benefit to the younger child in continuing to spend supervised time with the father.

Family Law Act 1975, ss.60CC, 61DA

McCall & Clark (2009) FamCAFC 92
Mazorski & Albright (2007) 37 FamLR 518

Applicant:

MR KEELE

Respondent:

MS NESCI

File Number:

PAC 4192 of 2008

Judgment of:

Terry FM

Hearing dates:

17 & 18 May; 12 & 13 August 2010

Date of Last Submission:

13 August 2010

Delivered at:

Newcastle

Delivered on:

10 December 2010

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Haricharan

Solicitors for the Applicant:

Hunter Family Law Centre

Counsel for the Respondent:

Ms Burns

Solicitors for the Respondent:

Mullane and Lindsay

Counsel for the Independent Children’s Lawyer

Ms Conte-Mills

Solicitor for the Independent Children’s Lawyer

Legal Aid NSW

ORDERS

That all previous parenting orders concerning the children [X] born [in] 1997 and [Y] born [in] 2001 are discharged noting for the avoidance of doubt that order 16 of the orders made by the Federal Magistrates Court at Parramatta on 22 May 2009 which provides for the father to pay costs to the mother is a costs order not a parenting order and is not discharged.
That the mother have sole parental responsibility for the children.
That the children live with the mother.
That there be no orders in relation to the father spending time with the children.
That the mother is to provide the father with copies of the children’s half yearly and yearly school reports and the mother may exclude any information within those reports which might identify the location of the school.
That the mother is to notify the father as soon as practicable in the event of a medical emergency involving one or both of the children.
That the father is to keep the mother informed of his contact details including mobile telephone number and postal address and is to advise the mother of any change within 7 days.
That the mother is to keep the father informed as to her mobile telephone number and postal address and is to advise the father of any change within 7 days.
That the father be at liberty to send the children cards and gifts on their birthday and at Christmas time and otherwise communicate with them by letter on no more than four occasions each calendar year.
That the mother is at liberty to inspect any communications or gifts from the father to the children prior to receipt by the children and to refuse to provide the gift or communication if such gift or communication is inappropriate.
That the mother is to facilitate the children responding to any communications from the father if the children wish to do so.
That the father is restrained from approaching any school, sporting facility or other venue where the children may from time to time attend.
That the order made on 22 May 2009 in the Federal Magistrates Court at Parramatta placing the children’s names on the airport watch list and restraining each parent from removing the children from the Commonwealth of Australia is discharged.
That the mother is permitted to travel internationally with the children [X] born [in] 1997 and [Y] born [in] 2001 and to obtain a passport for the children notwithstanding the consent of the father has not been obtained.
That the Independent Children’s Lawyer arrange for a Family Consultant to speak to the children and explain to them the orders which have been made concerning their parenting arrangements.
That the Independent Children’s Lawyer has liberty to re-list the matter on seven days notice if the Independent Children’s Lawyer wishes to pursue an application for costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

PAC 4192 of 2008

MR KEELE

Applicant

And

MS NESCI

Respondent

REASONS FOR JUDGMENT

Introduction

[X], 13, and [Y], 9, have lived with their mother since their parents separated in February 2005.
Between April 2005 and September 2009 neither child spent any time with their father.
In September 2008 the father filed an application for parenting orders. An order was subsequently made for [Y] to start spending supervised time with the father at a contact centre and this time commenced in September 2009. No order was made for [X] to spend time with the father, presumably because of the mother’s evidence that [X] was strongly opposed to doing so.
At the final hearing the father sought orders that the children live with the mother and spend time with him on alternate weekends, for half of the school holidays and on special days.
The mother sought orders that the children live with her and spend supervised time with the father, but only if they expressed a wish to do so.
The Independent Children’s Lawyer proposed that there be no order about [X] spending time with the father, but that [Y] spend supervised time with the father once per month.
Initially the parties were in dispute with about the allocation of parental responsibility, with the father seeking an order for equal shared parental responsibility and the mother seeking an order for sole parental responsibility. The father subsequently consented to an order that the mother having sole parental responsibility.
The matter involved some complex issues.
The father’s case was that the mother had been violent to him during the relationship and that from April 2005 onwards had actively prevented him seeing the children. He had become disheartened for a while and had backed off, but had never ceased to believe that the children would benefit from having a relationship with him and in 2008 he commenced court proceedings in an attempt to re-establish himself in the children’s lives.
The father said that no weight should be given to the children’s views about spending time with him, as their views had been formed as a result of influence by the mother.
The mother’s case was that the father had been violent to her during the relationship and had made a deliberate choice not to see the children after the relationship ended. The mother believed that the father might have bi-polar disorder. She feared that his motive in commencing court proceedings in September 2008 was not to obtain time with the children but rather was to find and harass and stalk her.
The mother could see no benefit to the children in having a relationship with the father and was particularly concerned that the father would, if given the chance, denigrate her to the children and provide false information about her to the children. It was her case that the children’s views concerning spending time with the father should be given considerable weight, as they were the result of the children’s own memories and experiences of the father.

The evidence

The father relied on his affidavits filed on 27 October 2008 (first paragraph commencing “at around 3pm”), 12 May 2010 and 17 May 2010. The orders sought by the father were contained in his outline of case document filed on 17 May 2010.
During cross-examination the father was referred to his affidavits filed on 16 February 2009 and 1 September 2008. The affidavit of

16 February 2009 is of particular importance and I shall consider the contents of it in greater detail a little later in this judgment.
The father also relied on the affidavits of his partner Ms W, his friend Mr F, his brother Mr K and a psychiatrist Dr S, all filed on 17 May 2010.
The mother relied on her Response filed on 29 January 2009 and her affidavit filed on 7 May 2010.
At the conclusion of the hearing the mother’s counsel handed up a Minute of Orders sought, as did counsel for the Independent Children’s Lawyer.
A Family Report was prepared by Ms D, a Clinical Psychologist and Family Consultant.
All of the witnesses were cross-examined.

General history

The father and the mother are both 45.
The father is of Indian descent and is originally from Fiji. The mother is originally from Ireland. They both emigrated to Australia as adults and met in Sydney in 1994.
The parties commenced a relationship in 1994 but it did not endure. They recommenced their relationship in 1996 and married in 1998. They have two children: a son [X], born in 1997, and a daughter [Y], born in 2001.
During the relationship the parties lived in Sydney. The father claimed that the mother had a long running affair throughout the relationship and that he was a victim of sporadic violence at her hands. The mother denied these allegations and said that it was the father who was violent, controlling and abusive.
I shall consider these allegations in greater detail later in the judgment.
The parties separated on 18 February 2005. They had an argument during the morning. The mother left the home and father followed her down the street and forcibly took her mobile telephone from her. The police were called and the father was charged with assault. An interim apprehended violence order (AVO) taken out against him and the parties were separated from that day.
The children remained with the mother after separation. It is difficult to get a clear picture of how much time they spent with the father during the next couple of months, but it certainly appears that he took them to the local park for an hour on one occasion and may have taken them to the cinema on another occasion.[1]
[1] See father’s contravention application filed on 1 September 2008
The father’s time with the children ceased altogether as of April 2005. The parties disagreed about why this occurred and I shall consider this issue further later in the judgment.
At some point the mother filed an application for parenting orders in the Local Court at Sutherland and on 27 April 2005 orders were made which provided for the children to live with the mother, for the father to have reasonable contact with them and for the children’s names be placed on the airport watch list. The father was not present when the orders were made although he certainly became aware of them.
The father pleaded not guilty to the assault charge but after a hearing in the Magistrates Court in July 2005 the charge was found proved. The father was placed on a good behaviour bond and a final AVO was made for a period of 12 months.
In October 2005 the mother filed an application for a property settlement. The father filed a response and various court events in relation to this application took place between October 2005 and October 2007.
In about 2006 the mother and children relocated from Sydney to Newcastle.
On 1 September 2008, after having spent no time with the children for 3 ½ years, the father filed a contravention application in the Federal Magistrates Court at Parramatta alleging that the mother had contravened the 27 April 2005 orders. On 27 October 2008 he filed an application for parenting orders, seeking final orders that the children live with him and spend time with the mother. At a later time he withdrew the contravention application.
The mother filed a response to the parenting application and an affidavit in support. She sought orders that [X] spend no time with the father and that [Y] spend supervised time with him. The father reacted to the contents of the mother’s material by filing an amended application and a further affidavit on 16 February 2009.
An interim hearing was conducted on 22 May 2009. By that time the mother’s position was that neither child should spend time with the father. FM Dunkley who heard the application made no order about [X], but ordered that [Y] spend supervised time with the father for two hours once each fortnight at [omitted] Children’s Contact Centre in [omitted]. He transferred the proceedings to the Federal Magistrates Court at Newcastle.
On 17 August 2009, while the family was still on the waiting list for a place at [omitted] Contact Centre, the father had a brief encounter with the children outside their school. There was a dispute about what occurred on that occasion and I will consider this matter also in greater detail later in the judgment.
In September 2009 a place became available at [omitted] Contact Centre and the father commenced spending supervised time with [Y]. This time was still ongoing when the final hearing commenced in May 2010. [X] has not spent any time with the father since April 2005.

Current circumstances

The father lives in [suburb omitted] in Western Sydney with his brother Mr R and Mr R’s wife and son. He is a [occupation omitted].
The father has a large extended family in Australia which includes the paternal grandmother and the father’s brothers Mr R and Mr K. The children spent time with the father’s extended family while the parents were together but have spent very little time with them since separation.
The father is in a relationship with Ms W, whom he met in 2008. Ms W lives on the Central Coast with her sister and her sister’s daughter [name omitted], aged 3. The father stays at Ms W home approximately every second weekend.
The mother lives with the children in a comfortable home in Newcastle. She has no family in Australia. The mother works in her own small business and has flexible hours. She has not re-partnered.
[X] is in Year 7 at high school and [Y] is in Year 4 at primary school. They are both excellent students.

The matters which require further consideration

I shall now deal in turn with each of the matters identified earlier as requiring further consideration namely:
a)The contents of the father’s 16 February 2009 affidavit.
b)The allegations of family violence.
c)The reason the children did not see the father after April 2005.
d)The incident at [omitted] School on 17 August 2009.
I shall also consider in further detail the allegations by each party that the other has mental health problems.

The contents of the father’s 16 February 2009 affidavit

The father’s 16 February 2009 affidavit contains 286 paragraphs and is devoted solely to a sustained attack on the mother. The father alleged among other things that:
·the mother was very false, a fraud and a diseased person with a NARCISSISTIC PERSONALITY DISORDER (father’s emphasis).
·the mother was an alcoholic, a drug addict, violent and a human killer.
·the mother was an organised psychopath seeking power and control over others. She was the father’s only direct enemy (father’s emphasis) in Australia and was dangerous and evil to the core.
·the mother had been engaged in an affair throughout her relationship with the father.
·the mother had threatened him with bodily harm, threatened to shoot him between the eyes and kicked him while he was on the ground.
·the mother had pushed him aggressively against the door and wall, bitten him on the arms, pulled his ears, finger nailed his chest and arms, scratched his back, pinned him on the bed and held a pillow over his face, threatened him with a knife and on one occasion raped him. While the mother was raping him the father called out for [X] and [Y] to come and help him.
·the mother had belted, slapped and hit [X] around his backside because [X] wanted something to eat while she was chatting away on the phone and whipped [X] with a belt and flung him onto the tile floor to teach him manners. [X] suffered bruising as a result and was usually terrified of the mother.
·the mother dunked [Y]’s head in cold water and threw her onto the tile floor of the bathroom.
·the mother had sexually abused both [X] and [Y];[2]
[2] Graphic details of these allegations are contained in the affidavit at paragraphs 138-143 ([X]) and 151-157 ([Y])
The father made allegations about the mother’s family members in Ireland including allegations of incest occurring within that family.
At the final hearing the father sought to distance himself from this affidavit. He said as follows:
In the Affidavit I prepared for myself, I had made certain remarks in relation to the Mother. I have reflected upon these remarks and realised that referring to the Mother [sic] “narcissistic personality disorder” is highly inappropriate. I was highly emotional at the time that I prepared my affidavit and I regret making these remarks. I sincerely apologise to the Mother.[3]
[3] Father’s affidavit filed 12 May 2010 paragraph 81
However the father did not retract any of his allegations and during cross-examination said that everything in the affidavit was true. When asked how, if he believed those things about the mother, it could be in the children’s best interests that they continue to live with her, he did not answer. Later in cross-examination he said that the only reason he was seeking an order that the children live with the mother and spend time with him was that the court would order that the children live with the mother regardless because the court favoured mothers.
When asked whether he would show the children the affidavit and tell them these things about the mother if he got the chance he responded that if the children wanted to know the truth when they grew up he would show it to them.

The allegations of family violence

Each party alleged that the other committed acts of family violence during the relationship.
The father alleged that the mother used to:
Pull my ears, push me and often apply pressure to the pressure points behind my ears and jab me in the ribs….Incidents of this nature would occur once per week.[4]
[4] Father’s affidavit filed 12 May 2010 paragraph 34
He also alleged that the mother had kicked and smashed the [object omitted].
The father’s brother Mr K gave evidence in support of the father. He said that he had lived with the parties at a number of different locations in Sydney over a period of several years and that at least twice a week he would see the mother approach the father and “push him, scratch him with her fingernails or pull his ears.”
The mother denied the allegations. It was her case that it was the father who was violent, verbally abusive and controlling during the relationship.
Details of the mother’s allegations are contained in the statements she made on 16 February 2005 and 27 February 2005 in support of her application for an apprehended violence order.[5] She alleged that the father was extremely jealous and possessive, was convinced that she was having an affair, often took her mobile telephone in order to check on her calls and messages, sometimes kept her under surveillance when she left the home and frequently called her ‘whore’ and ‘slut.’ The mother alleged that the father sexually and physically assaulted her on occasions, although interspersed with the assaults and abuse were apologies and professions of love.
[5] Annexure E
The mother said that the father was so obsessed with the idea that she was having an affair that he indulged in bizarre behaviour such as pulling a hair from his head and taping it to the window ledge, telling the mother that if she tried to get out the window to see her lover he would know that the hair had been moved.

The mother repeated the allegations of violence to Ms D. She told

Ms D that father’s conduct escalated over time from screaming at the mother and spitting in her face to pushing her down on the bed, pinning her with his knee and putting his hands around her throat. The mother told Ms D that at first the father would apologise and buy her flowers after incidents of violence and abuse and everything would then be good between them for a while, but that the violence and abuse became got progressively worse and toward the end the father “seemed to be mad all the time.”
The mother said that she tried to change her own behaviour to avoid provoking the father.[6]
[6] Family Report paragraph 23
[X], who was 7½ at separation, told Ms D that he had a memory of looking up from his Gameboy and seeing his father holding his mother up against the fridge door and yelling at her while he had his hands around her neck, choking her. He informed Ms D that his father was ‘always hurting her.’ Ms D reported that [X] became very upset at this point of the interview.
There was also some corroboration from [Y]. In the note she wrote at school following the children’s encounter with the father on 17 August 2009 [Y], who was four at separation, made reference to observing the father assaulting the mother during the relationship.
The father’s solicitor questioned the mother about her failure to make any complaints to the police, implying that this suggested that the mother was fabricating the allegations of violence. The mother said that she did not involve the police because the father promised not to do it again and “you want the marriage to work.”
The mother did seek help at various times from people other than the police. She organised counselling for herself and the husband and she rang a mental health helpline and subsequently a domestic violence helpline for advice.
The father denied that he had ever “physically emotionally or sexually harmed the mother.” Although he was found guilty of assault in July 2005 he did not accept that an assault had really occurred, and he said that the mother was fabricating the remainder of her allegations.
I prefer the mother’s evidence about the violence and abuse during the relationship to that of the father.
The mother was an impressive witness overall. She was frank when answering questions. She was not unreasonably condemnatory of the father and described her relationship with him as one which had its good and its bad times.
The mother’s responses when cross-examined by the father’s solicitor about the family violence issues were detailed, internally consistent and convincing.
The father’s 16 February 2009 contains ample evidence of the fact that the father was as the mother claimed obsessed with the idea that the mother was having an affair, and there was some corroboration for the mother’s claims about violence in statements made by the children.
The father’s evidence was not convincing and there were some internal inconsistencies in his evidence. He said that the children did not observe arguments between he and the mother, but this conflicted with paragraphs of his 16 February 2009 affidavit.[7] His evidence that the children were never in the house when he and the mother argued was also contradicted by his brother Mr K.
[7] Father’s affidavit filed 16 February 2009 paragraphs 113, 135
Mr K said he saw or heard many arguments between the parents and that the children were at home when the arguments occurred. He said that one argument was so distressing to him that he came out of his room and left the house, but at the same time he insisted that the children would not have been aware of any arguments between the mother and father because they were babies and were in their rooms when the arguments occurred.
In support of his case the father called Mr F. Mr F gave evidence for the father during the criminal proceedings in 2005 and his evidence went to that incident. I can place no weight on Mr F’s evidence. He was strongly in the father’s camp and had a rosy view of the father. When asked if he would be surprised to know that the father had described the mother as (words from the 16 February 2009 affidavit) he insisted that the father would never have said any such thing.
I accept the mother’s evidence about the conduct to which she was subjected to during the relationship and I am satisfied that the father was abusive to the mother and committed many acts of violence which come within the definition of family violence in the Family Law Act.

I reject the father’s evidence (and that of Mr K) that the father was subjected to abuse and violence by the mother.

The reason why the children did not see the father after April 2005

It was the father’s case that from April 2005 onwards the mother thwarted his efforts to spend time with the children. Her behaviour included failing to answer her phone, answering but hanging up, threatening to call the police if the father came around and agreeing to the father spending time with the children but then failing to turn up at the agreed venue.
The mother relocated from Sydney in 2006 which put another obstacle in his way. He tried to find her by speaking to her former employer, the police and the Child Support Agency and he also travelled to Ireland and spoke to her family but nobody could/would tell him where the mother was. It was not until he commenced court proceedings in September 2008 and obtained a Location Order that he was able to make any progress toward obtaining time with his children.
Mr K corroborated some of the father’s evidence. He said that in 2005/6 he rang the mother to try to make arrangements for the father to see the children but the mother would not agree to anything.
The mother’s evidence about why the time ceased was as follows:
On the last occasion he saw the children in 2005 the father said to me “…if you aren’t there I don’t want to see them. If I can’t have them with me every day I don’t want to see them at all…”
The father also said words to me to the effect of “…what are you going to get up to if I take the children? If I leave them with you 7 days a week then there will be no time for you to be your lovers…”[8]
[8] Mother’s affidavit filed 7 May 2010 paragraphs 94, 95
The mother said that the father was true to his word and thereafter ceased making any effort to see the children and that when [Y], who missed him, rang the father, he would not come to the phone and did not return her calls.
The mother said that while she did relocate, she did not disappear. Her mobile number remained the same and indeed the father rang her in 2007. It was her evidence that during that conversation the father said that he wanted to take the children on a holiday to Fiji and Ireland and he also said that he wanted them to live in Brisbane with him. The mother did not agree with either of these proposals. The father then asked to speak to [Y]. The mother said “Before I put her on, I don’t want [you] calling me a slut to her…” the father said ‘of course I’m going to all you a slut, what else am I going to all you” and started swearing and yelling and hung up the phone.[9]
[9] Mother’s affidavit filed 7 May 2010 paragraph 80, 81
The mother said that she also had a missed call from the father’s home number in 2008 and she rang the number and left a message for the father but he did not call her.
The mother gave some very balanced and credible evidence on this topic which revealed her conflicting feelings about the children spending time with the father immediately after separation. On the one hand she was upset that the children came home from seeing the father in 2005 telling her that she was evil, but on the other hand she agonised over whether [X], who did not speak about the father, was secretly missing him, and she recognised that [Y] clearly missed her father and encouraged [Y] to ring him.
The father’s evidence was far less credible. In particular he said that he did not know where the mother was after she relocated and that this prevented him doing anything about seeing the children, but he and the mother were engaged in property proceedings between late 2005 and 2007. It is very difficult to accept that the father would not have contacted the mother’s solicitor or applied for parenting orders during this period if he genuinely felt that the mother was obstructing him seeing the children.
The father also provided no credible explanation for failing to do anything about parenting matters between October 2007 when the property decision was handed down and September 2008 when he filed an application for contravention in the Federal Magistrates Court at Parramatta.
I prefer the evidence of the mother on this topic to that of the father and Mr K. I am satisfied that the father’s time with the children ceased after April 2005 because he did not pursue it, and I do not accept that it ceased because the mother was obstructive.

The incident at the children’s school on 17 August 2009

On 22 May 2009 FM Dunkley made orders that:
The child [Y] shall spend time with the father at a supervised contact centre known as [omitted] Contact Centre Newcastle.
He made no order about [X] spending time with the father.
The parties completed the necessary intake procedures with [omitted] Contact Centre and were placed on a waiting list and on 17 August 2009 were still on the waiting list. That morning as the children approached their school they saw the father standing out the front.
The father made light of the incident. His evidence was that when he saw the children he greeted them and asked them if they recognised him. [X] said “Daddy” and then said “We have to go to school.” The children went into the school and the father left.
The children’s version of events was very different.
Upon entering the school the children went straight to the school office and were asked to write down an account of what had happened. The mother attached a copy of their accounts to her affidavit.
[X] said that when the father saw the children he asked them where they lived. Neither answered and both started crying. The father told [Y] not to cry and kissed her on the cheek. He again asked the children where they lived and asked them to get into his car, saying that he had pictures to show them. [X] said that he was scared and that he told [Y] to run into the school.
[Y]’s version of events was similar in content although differently expressed. At the end of her account [Y] said as follows:
I’m scared! I remember when I was little dad used to get mum by the neck and put her on the wall and then I would come and grab dad’s leg and pull as much as I could and [X] would put his head down on the lounge.[10]
[10] Annexure C affidavit of the mother filed 7 may 2010
[Y] mentioned the incident at the school to Ms D. She told Ms D that she had found the encounter frightening and she repeated to Ms D that the father had asked the children to get into his car and had asked them where they lived.
The father denied that anything of the nature described by the children had occurred and particularly denied that he had asked the children where they lived or asked them to get into his car.
It defies belief that the children would have gone into the school that morning and immediately written down a completely false account of something which had happened outside the school only a short time before. I am satisfied that the children’s accounts are accurate. I do not accept the father’s evidence about this issue.
The father was of course supported on this issue by his partner Ms W, who said that she was with the father that day. In her affidavit Ms W described the incident in identical words to those of the father. Ms W added that in her observation the children were happy to see the father.
The mother disputed that Ms W was even present. I have no particular reason to doubt that Ms W was somewhere around, but she was not a satisfactory witness. On several occasions during cross-examination she took a long time to answer a question, saying that she needed to think about it. I consider that Ms W was intent on supporting the father and was being careful not to say anything which might offend or upset him. I place no weight on her evidence about what occurred on

17 August 2009.

The allegations by each party that the other has mental health problems

The father’s allegations about the mother’s mental health are contained in his 16 February 2009 affidavit. Although the father did not seek to rely on this affidavit as he did not retract the allegations and as the future well being of the children is at stake, I need to consider whether there is any reason to be concerned about the mother’s mental health.
The father’s evidence on this issue did not go beyond bare assertion and there was nothing in the evidence at the hearing which raised any concern about the mother’s mental health.
The mother believes that the father might be suffering from bi-polar disorder but she produced no evidence which could support a finding that the father suffered from this condition.
Ms D was concerned about the father’s mental health. She said as follows in the Family Report:
The father’s behaviour during the marriage and around the time of the break up would seem to indicate that he was having significant mental health problems at that time. The father’s subsequent actions with regard to the mother and the children, as well as the material he has provided to the court in the form of affidavits, would seem to suggest that these problems are ongoing.[11]
[11] Family Report paragraph 59
The phrase “mental health problems” could be used to refer to any number of conditions, from schizophrenia to depression, and different conditions have different implications for a person’s parenting capacity.
Ms D did not attempt to assess whether the father was suffering from any particular condition, saying (fairly) that this was not within her brief, and the father does not have a history of having been diagnosed with a mental illness by a medical practitioner nor has he ever been admitted to hospital as a result of mental health issues. In those circumstances the only value of the view expressed by Ms D’s in the above paragraph is to alert the court to a potential problem and to the need to perhaps proceed cautiously pending a proper assessment of the father’s mental health.
Neither the Independent Children’s Lawyer nor the mother’s solicitor pressed for the father to have a mental health assessment after the release of the Family Report. The father however went to see Dr S, a psychiatrist, to obtain such an assessment and Dr S prepared a report and gave evidence in the proceedings.
Dr S said that he saw the father in his rooms for one hour on 11 May 2010. He took a history from the father and he also had regard to clinical notes and a letter from a Dr M who conducted a psychiatric assessment of the father on 25 July 2005. It emerged during cross-examination that Dr S also seen the father on two other occasions.
Dr S expressed the view that:
There is no evidence of major mental illness. Specifically, the available evidence is essentially inconsistent with a diagnosis of Bipolar 1 disorder. He has had 2 comprehensive psychiatric assessments in 5 years with no treatment and there has been no evidence of mental illness on either occasion.
Despite the stress caused by this situation Mr Keele does not appear clinically depressed.[12]
[12] Page 3 report of Dr S attached to his affidavit sworn on 14 May 2010
Ms D’s opinion was that in order for a psychiatrist or clinical psychologist to conduct a proper assessment of the father’s mental health they would need to see the father in more than one setting and to observe how he reacted when challenged about his version of events. There is merit in this opinion, and Dr S saw the father only in his rooms, and accepted at face value the history given to him by the father. The father told Dr S for example that he had never been violent to the mother and Dr S accepted that assertion.
As a result I can place little weight on Dr S’s opinion about the father’s mental health, but it does not follow that I can make a finding that the father has mental health problems, whatever that term might encompass, and I decline to do so.

[X] & [Y]’s best interests

I must treat [X] and [Y]’s best interests as the paramount consideration in determining appropriate orders. Ss.60CC(2) & (3) of the Family Law Act set out the matters to which I must have regard in order to determine what is in the children’s best interests.
The primary considerations in s.60CC(2) are as follows:
a) the benefit to the children of having a meaningful relationship with both of the children’s parents; and
b) the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The Full Court considered the meaning of s.60CC(2)(a) in McCall & Clark[13] and said that the courts task was to craft orders which would facilitate children having a meaningful relationship with each of their parents if that was in their best interests (my emphasis).
[13] McCall & Clark (2009) FamCAFC
The Full Court observed that:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests. [14]
[14] McCall & Clark (2009) FamCAFC 92
It was the father’s case was that it would be of positive benefit to the children to have a meaningful relationship with him. He was their father, he could offer them support, guidance and encouragement in their education and sporting endeavours and through him the children would be able to re-establish a connection with their Fijian Indian extended family.
It was the mother’s case was that there would be no positive benefit to the children in them re-establishing a relationship with their father, because there were serious deficiencies in his parenting capacity and a particularly serious risk that if he saw the children unsupervised he would be unable to refrain from denigrating the mother and providing the children with false information about her.
The mother questioned whether simply putting the father and children together in one place (supervised or unsupervised) would result in the children developing a relationship with their father which was important, significant and valuable to [the children].[15] The father had not been able to develop much of a relationship with [Y] even after seeing her at the contact centre for seven months, and [X] was so strongly opposed to seeing the father that putting the father and [X] together in one place was likely to be counter-productive.
[15] Mazorski & Albright (2007) 37 FamLR 518.
I cannot make a proper assessment of whether it is in [X]’s and [Y]’s best interests to have a relationship with the father or about whether an order that they spend time with him would actually lead to the formation of a meaningful relationship until I have considered all the s.60CC(2) & (3) factors.
The second primary consideration is the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.
The father committed acts of family violence during his relationship with the mother and the children were exposed to some of these acts of violence.
However the father and mother are no longer in a relationship, and there was no evidence that the father was a person with violent propensities generally. There was nothing to suggest that the children were likely to be exposed to family violence between adults if they spent unsupervised time with the father.
There was also nothing to suggest that the children were likely to be exposed to family violence in the separate care of the mother. During cross-examination it emerged that the mother had been subjected to a sexual assault by a male friend after separation, but this was an isolated incident which happened some time ago and the mother is not currently in a relationship.

In his 16 February 2009 affidavit the father made allegations that the mother had physically and sexually abused the children. At the hearing he did not press these allegations but neither did he withdraw them.
The father was not a witness of credit on the issue of the mother’s conduct during the relationship. I am satisfied that these allegations are false and that there is no reason to be concerned that the children are likely to be abused by the mother.
There was no evidence that the father had ever physically abused the children, but in 2005 the mother did become concerned that he might have sexually abused them.
The mother’s concern was aroused by comments of a sexual nature made by the father about the children and by her observing sexualised behaviour by the children.
The mother’s concern led to her taking the children to a doctor but she accepted the doctor’s advice that there was no evidence of sexual abuse.
The mother did not mention possible sexual abuse of the children by the father as one of her current concerns either in her affidavit or when speaking to Ms D.
During cross-examination the father’s solicitor suggested to the mother that she still (wrongly) believed that the father had sexually abused the children and that this was her motivation in opposing him spending time with the children.
The mother said that the father’s 16 February 2009 affidavit had reawakened her concern about this issue, as she wondered if the sexual abuse of the children the father alleged she had committed had in fact been committed by him. She denied however that this was a centrally important issue for her or was motivating her to oppose the father spending time with the children.
I cannot be satisfied on the balance of probabilities that the children were in the past sexually abused by the father nor does the evidence support a finding that the children might be at unacceptable risk of sexual abuse if they spent unsupervised time with the father in the future. I cannot safely conclude that the father’s allegations in his

16 February 209 affidavit are evidence that he might have done things of this sort himself. The sexualised behaviour the mother observed could have been normal exploratory behaviour and the comments by the father inappropriate rather than sinister.
I also do not consider that a (secret) concern by the mother about the possibility of sexual abuse is a hidden motivation in her opposing the children spending time with the father. I found the mother a frank and honest witness and I accept her denials in this regard.
There were no allegations that either party had neglected the children or were likely to do so in the future.
I must also have regard to the additional considerations in s.60CC(3).
The first of these is any views expressed by the children and any factors (such as the children’s level of understanding and maturity) that the court thinks are relevant to the weight to be given to those views.
Ms D interviewed the children in April 2010. She reported that [X]
was able to state firm views on the subject of parenting arrangements: he said that he wanted things to ‘stay as they are’ in that he would continue to live with his mother and not spend any time with his father. When asked why he did not want to spend time with his father he said that he didn’t want to see him because he remembered how his father had treated his mother when they were all together.[16]
[16] Family Report paragraph 45
At the time of the report interviews [Y] had been spending supervised time with the father once a fortnight for about seven months. [Y] described feeling anxious before the supervised visits.
Ms D said that:
When asked whether she would like to spend more time with her father she shook her head and when asked if she would like to have some time with him outside of the Centre she burst into tears and became very distressed.[17]
[17] Family Report paragraph 55
Both [X] and [Y] declined to see the father at the time of the report interviews. [Y] declined the invitation despite being told that the observation would not take long and that two family consultants would also be present.
The father’s solicitor submitted that little weight should be given to the children’s views because the mother had influenced the children and implanted in their minds false memories of witnessing family violence.
The father’s solicitor was also critical of Ms D’s interviewing technique, suggesting that she had already accepted the mother’s version of events before she interviewed the children and that this influenced her interviewing technique which in turn resulted in her receiving answers from the children consistent with her pre-existing beliefs.
I do not accept these submissions.
There was no evidence that Ms D adopted a flawed interviewing technique, and there was no evidence that the children’s memories were other than their own.
Some of the matters supporting a finding that the children’s memories are their own are: that I am satisfied that the father did commit many acts of family violence during the relationship, making it likely that the children did witness family violence at some point; that [Y] spontaneously wrote down one of her memories on 17 August 2009 but did not repeat it to Ms D; and that [X] gave quite different information to Ms D from that written down by [Y] and was considerably emotionally affected while describing what he recalled.
[X]’s views about the father have also been shaped by the fact that he resents the father having made no effort to spend time with the children between 2005 and 2008 and resents the fact that he has not sent the children birthday presents or Christmas presents.
[Y]’s views have also been shaped by the fact that she found the incident outside the school on 17 August 2009 frightening, and by the fact that she has been disturbed by one or two things said to her by the father at the contact centre suggesting that the father might have been keeping the family under surveillance.
The father’s solicitor submitted that limited weight should be to [Y]’s statement that she did not want to see the father outside the contact centre because the report interviews were conducted on 20 April 2010 and the contact centre notes showed that there had been a number of visits between [Y] and the father after that date during which [Y] was noted to have been “smiling and relaxed.”. The court could not be certain, he implied, that [Y] would still have the same view if asked now.
I do not accept this submission. The contact centre notes record [Y] as being ‘smiling and relaxed’ during the visits with the father as far back as January 2010. The notes continue to say the same thing after the family report interviews in April 2010 and the notes do not record a marked change in [Y]’s presentation at the centre between January 2010 and July 2010.
[X] has been refusing to see his father since these proceedings commenced in 2008 and his views are strongly held. His views are based on his own experiences and I am satisfied that weight should be given to his views. [Y]’s views have also been shaped by her own experiences of her father and I am satisfied that weight should be given to [Y]’s views. However the views of both children are only one matter to be taken into account in determining which orders would be in their best interests.
I must consider the nature of the relationship of the children with each of the children’s parents and any other persons (including grandparents of the children).
[X] has no relationship with the father.
The father has been seeing [Y] at the contact centre since September 2009 and they have a relationship but it is difficult to assess the quality of it.
It was the father’s case that after initially feeling shy of him, [Y] had warmed to him and that they now were developing a good relationship. He produced a bundle of photographs showing him hugging [Y] and showing [Y] smiling.
Certainly the contact centre notes record [Y] as being “smiling and relaxed” during visits, but the fact that [Y] accepts the visits with the father for two hours at the contact centre and returns hugs he initiates and poses for photos at his request is not evidence that they have a close and warm relationship or the possibility of developing one.
The answers the father gave to Ms D when she asked him about [Y] do not suggest that he has a warm and close relationship with her. Ms D asked the father, who had by then being seeing [Y] for about seven months, to share his impressions of her and responded:
Well, she always has a stuffy nose and she has some insect bites on her.[18]
[18] Family Report paragraph 41.
Ms D told the father that [Y] had mentioned to her that she had taken her guitar to the contact centre so she could play a song for her father that she had learned for him. His response was ‘yes, that was the guitar I bought for them.’[19]
[19] Family Report paragraph 41
Ms D in the conclusion to her report said that:
The father has had an opportunity to reconnect with his daughter and see her for the wonderful child she is. Unfortunately the best he could do to describe his daughter was to say that she had a stuffy nose and insect bites on her legs.
There is nothing in this evidence which inspires confidence that given more time the father’s relationship with [Y] would develop into one which was beneficial for [Y].
As to the mother’s relationship with the children Ms D reported that:
During the observation session with the children and the mother it was observed that they appeared to have a loving and affectionate relationship with one another.[20]
[20] Family Report paragraph 53
The children do not have a relationship at present with any members of the father’s extended family.
I must consider the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent.
The father’s counsel submitted that the mother lacked the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father. I am satisfied that this correct.
The mother was not responsible for the fact that time between the father and children ceased in 2005, which removes one plank the father’s counsel relied to support his argument and certainly the mother has complied with the court orders for [Y] to spend supervised time with the father.
However it was apparent during cross examination that the mother can see many possible detriments and no benefits to the children in having a relationship with their father.
When asked during cross-examination about her attitude to the children spending time with the father she said as follows:
He plays with their minds, he plays mind games. I have two wonderful children who are healthy and happy and I don’t want him to mess with their heads.
The final orders sought by the mother, although couched in terms of the children being able to see the father if they wished, in reality proposed an end to contact between the children and the father. [X] is not going to express a wish to see his father, and in all likelihood the father’s time with [Y] would dwindle away to nothing if it was only to occur if [Y] expressed a wish.
As to the father, he has an exceptionally poor opinion of the mother and I am satisfied that he lacks the willingness and ability to facilitate and encourage a close and continuing relationship between the mother and the children.
The father made extremely serious, and I am satisfied unfounded, allegations about the mother in his 16 February 2009 affidavit.
When asked by Ms D to comment on the mother’s qualities as a parent he replied:
I’m happy the children are still there and still alive.
During cross-examination the father said that his son and daughter had the same personality as him: calm, placid and friendly. When asked if his son’s success at school did not suggest that the mother was parenting the children well the father replied that the fact that his son was doing well at school was probably due to his [the father’s] education and to [X]’s genetic inheritance from the father.
Not only does the father lack the willingness and ability to facilitate and encourage a close and continuing relationship between the mother and the children, there is a strong likelihood that he would do things calculated to undermine the relationship if the opportunity arose. It is impossible to believe, given the depth of the father’s ill feeling toward the mother and his inability to see a single positive quality in her, that he would be able in an unsupervised setting to refrain from denigrating her to the children and from providing the children with (false) information about her of the nature contained in his 16 February 2009 affidavit.
I must consider the likely effect of any change in the children’s circumstances including the likely effect on the children of any separation from:
(i)either of their parents; or
(ii)any other child, or any other person (including a grandparent or relative of the children), with whom they have been living .
The father asked me to make an order that [X] spend unsupervised time with him on a regular basis. If such time occurred it would represent a considerable change in [X]’s circumstances.
It was the father’s case that this change would be a beneficial one for [X]. The father saw himself as someone who had much to offer his son in terms of assistance with his education, encouragement with his sport and guidance in making good choices in life.
I am not however satisfied that making an order that [X] spend time with his father either as the father proposed or at all would be beneficial for [X] or would lead to him developing a meaningful relationship with his father.
Firstly there is an unacceptable risk that [X] would be exposed to the father’s extremely negative views of the mother and to the receipt of false information about her character and activities.
Secondly the father continues to deny that [X] witnessed the father’s violence to the mother and to deny that [X] accurately described the events of 17 August 2009. It is difficult to see how father and son could develop a productive relation in face of this disjunction of beliefs.
Thirdly, such is the strength of [X]’s opposition to spending time with the father that he might simply refuse to do so in spite of orders, which would lead to further court proceedings and would create tension and unhappiness for [X] and that in turn would inevitably have a detrimental flow on effect in his life.
As to [Y], she is younger than [X] and might display less overt resistance to going on unsupervised visits, but her views as expressed to Ms D suggest that she would be miserable and anxious if required to do so. It is highly likely that she would be exposed to denigration of her mother and receipt of false information about her mother, and her father does not accept the reality of [Y]’s beliefs about the violence and about what happened on 17 August 2009 either.
[Y] unlike [X] however is currently spending supervised time with the father and the issue which arises for [Y] is whether it would be beneficial or detrimental for her if this was changed so that she spent no time with the father.
The mother did not actually propose this, rather she sought an order that [Y] spend supervised time with father if she expressed a wish to do so. In my view however if the matter was left at this time between [Y] and the father would cease. [Y] would be living in a household where neither her mother nor her brother were keen on the time occurring and further, if in the face of this [Y] did express a wish to see her father, the positive efforts which would be required to organise a time and a venue for ad hoc visits would almost certainly quickly result in it all becoming too hard and the time dwindling away.
It is difficult to predict the effect on [Y] of all time ceasing. The father has shown an interest in her by attending regularly at the contact centre and giving her pocket money and gifts and [Y] might miss this attention. She might also miss the opportunity to know her father even while having some reservations about him.
[Y] is doing extremely well in her mother’s care however and even if the end of the visits caused [Y] some regret it does not seem likely that it would have a detrimental effect on her home life with her mother and brother or her schooling or her adjustment generally.
I must consider the practical difficulty and expense of the children spending time with the father and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
A practical difficulty which will arise if I order that the children, or [Y], spend supervised time with the father, is that I was informed that the contact centre usually only provides supervised visits for one family for a maximum period of twelve months, and this family was close to reaching this limit when the hearing concluded.
The parties could move on to using a private supervisor if the contact centre became unavailable, but this would come at some additional cost to the parties, and the difficulty of agreeing on a private supervisor, and the additional cost involved in paying for that private supervisor, could either cause the matter to come back to court or result in the arrangement dwindling away.
I am required to consider the capacity of each of the children’s parents, and any other person (including any grandparent or other relatives of the children) to provide for the needs of the children, including their emotional and intellectual needs.
The father’s capacity to provide for the children’s needs on a day to day basis in terms of feeding them, clothing them and sending them to school has not been tested in recent years. However there is no reason to suppose that he could not provide for those needs.
A central issue in the case however was whether the father had the capacity to provide for the children’s emotional needs.
The mother raised numerous concerns in this regard. It was her belief that the father’s true interest was in [X], his son, and that he was persisting with spending time with [Y] only in order to achieve his goal of being able to spend time with [X]. She said that this was part of the father’s cultural background. She pointed to the fact that during early visits at the contact centre the father gave [Y] gifts for herself and [X] and that the gift for [X] was considerably more valuable. The mother was concerned that [Y] would ultimately be hurt if her father’s interest in her dropped away, either because he achieved his goal of seeing [X] or because he gave up and stopped seeing [Y] because he realised he would never achieve his goal of spending time with [X].
The mother was also concerned that the father’s real agenda (in whole or in part) might be to get to her and that he still had no real interest in spending time with the children at all. The picture of the white van he showed to [Y] aroused the mother’s suspicion that the father was trying to track her down. The father demonstrated little empathy for the children and was able to tell Ms D nothing personal about his daughter after seeing her for six months, suggesting that he was not really interested in the children are all.
The mother was also deeply concerned that if the father spent unsupervised time with the children he would denigrate her to the children and tell them some of the things which were in his

16 February 2009 affidavit. The mother said that immediately after separation the father had been unable to restrain himself from denigrating her and had told the children someone else was sleeping in her bed and that she was evil.
There is insufficient evidence to support a finding that the father’s primary interest is in [X] and that he is likely to drop [Y] once he either achieves that goal or finds it to be unachievable. The fact that the father gave [Y] a less expensive gift than he provided for [X], and the mother’s assertion that persons of the father’s cultural background value sons more than daughters, is not sufficient to allow me to make such a finding.

I also cannot be satisfied that the father’s true motive in seeking time with the children is to find and possibly stalk and harass the mother. The fact that the father has been endeavouring to find out where the children live (and I am satisfied that he did ask the children that on 17 August 2009) and the fact that he produced a photo of a van and asked [Y] about it are not sufficient to allow me to make that finding, because it might also have been part of a misguided attempt by the father to find out more about where the children themselves were living.
The fact that the father shows little empathy for the children could simply be a facet of his personality and a limitation on his ability to relate to others generally. It is not necessarily evidence that he has an ulterior motive in seeking orders permitting him to spend time with the children.
The issue of possible denigration of the mother however does create concern.
There is a very high risk that if the father saw the children in an unsupervised setting he would denigrate the mother to the children and make them aware of allegations of the nature of those contained in his 16 February 2009 affidavit.
I am satisfied that there is a high risk of occurring not only because the father has such a strongly negative opinion of the mother that he might have difficulty restraining himself, but because he shows little empathy for the children or recognition of them as individuals separate from himself. I cannot be satisfied therefore that a concern for the children’s welfare would put a brake on the father’s intense desire to see himself vindicated in their eyes and to reveal to them what he believes to be the true nature of their mother.
I am satisfied that the father lacks to a marked degree the capacity to provide for the children’s emotional needs.
The mother is a capable parent. The current educational achievement, adjustment and happiness of [X] and [Y] is evidence this. I do not accept the father’s evidence that the children’s educational achievement is simply down to his education and to the children’s genetic heritage.
There could be no higher endorsement of [X] than the following from his 2009 end of year school report:
What a student! [X] has been an absolute pleasure to teach. He is a fantastic student who loves learning and involving himself in all facets of school life. He has proven himself to be an extremely dedicated, hardworking student who inspires others around him.
[X] has been a very popular school member as he kind, fair and trustworthy. He is very clever and possesses talent in everything he attempts from academics to leadership to creative and practical arts. He has been an outstanding Prime Minister this year.
[X], you have matured into a responsible, reliable young person. You have left very big shoes to fill! Have a wonderful time at high school and keep aiming for the moon.[21]
[21] Annexure G Mother’s affidavit filed 7 May 2010
[Y] received a similarly glowing endorsement in her 2009 end of year school report, as follows:
[Y] is an excellent student. She participated enthusiastically in a wide range of class and school activities. She has achieved outstanding results in all areas, but literacy is where her main talent lies. She writes beautifully! Her narratives are particularly entertaining.
[Y] willingly takes on responsibility. She does her job of organising the food scraps into the compost bin every day. She is also reliable in any other jobs she is given. She has been a considerate, hard working member of our class, always keen to learn. It has been a privilege to teach her.[22]
[22] Annexure H Mother’s affidavit filed 7 May 2010
I do not consider that the mother’s lack of willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father is evidence that she lacks the capacity to provide for the children’s emotional needs. I am satisfied that the mother is being appropriately protective of her children in taking the stance she has about the children spending time with the father.
I have to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant.
The children have an Irish heritage through their mother and a Fijian Indian heritage through their father. They have ample opportunity to connect with their Irish heritage but little or none to connect with their Fijian Indian heritage. The opportunity to connect with that heritage is unlikely to arise in the immediate future unless they commence spending regular time with the father and through him commence interacting regularly with his extended family.
In theory the children could interact with the father’s extended family independently of spending time with the father, but they are young and are dependent on their mother to arrange this.
The mother indicated that she would not oppose the children spending time with members of the father’s extended family if those family members initiated it, but it emerged that the mother had in mind that she would be present when any visits occurred. She is distrustful of the paternal family, considering them in the father’s camp.
It is unlikely that any meaningful time between the children and the father’s extended family will occur if it is left to the mother and members of the father’s family to organise it.
The best that can be said is that despite her distrust of the paternal family the mother does not denigrate them to the children. The children are by appearance connected to their Fijian Indian family. I do not consider that the children are likely to form a negative view of the paternal family if I decline to make the orders sought by the father, but there can be little doubt that the children’s opportunity to interact with the paternal family will be limited if these orders are not made.
I must consider the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents.
I am satisfied that the children’s time with the father dwindled away in 2005 and did not revive thereafter because the father deliberately let this happen. He did not take any steps to reverse this situation until 2008. To this extent the father failed to fulfil his responsibilities to the children and did not show a good attitude to the responsibilities of parenthood.
The father has also demonstrated and continues to demonstrate a poor attitude to the responsibilities of parenthood by his failure to pay an adequate amount of child support.
The father runs his own business. He is assessed to pay $50.00 per fortnight child support.
The father became defensive when Ms D asked about his child support payments. Ms D said as follows:
[The father] was asked to explain his views on child support, given that his Amended Application includes a request that all child support payments made to the mother since 2005 be reimbursed with penalties. He explained that ‘if you buy a car you get to use that car – and similarly, if you pay child support you should be able to see the children.’ It was put to him that the child support is a means to provide for the needs of the children and that a parent has an obligation to ensure that these needs are met regardless of any parenting arrangement that may be in place. He said that he was more than happy to ‘buy groceries or give the children money or presents’ but he wasn’t prepared to ‘pay for a service I am not being provided with.’
The father’s case seemed to be that he ought not to be criticised for failing to pay child support to the mother because he was making contributions in cash and in kind direct to the children. He said that when he visited [Y] at the contact centre he
[brought] fruit and gifts for [Y] to take home for herself and [X]. On each occasion the food and gifts that I bring for the children are valued at approximately $100.00.[23]
[23] Father’s affidavit filed 12 May 2010 paragraph 76
The notes produced by the contact centre confirmed that on at least

10 occasions the father had brought bags of food for [Y] to take home. The mother described the bags as containing items such as Weetbix, skim milk and potatoes. At the beginning of the school year the father brought school supplies such as pens for [Y] to take home for herself and [X]. He gives [Y] at least $20.00 or $30.00, with a similar amount for [X], on every visit. He recently purchased [Y] a bed for $1,200.00.
The father is also quite unable to see that his behaviour in bringing bags of food (of his choice) to the contact centre for the mother and [Y] to carry home is demeaning and controlling and is not an acceptable substitute for paying an appropriate level of child support. In addition the mother has epilepsy (a fact well known to the father) and cannot drive. She described with some exasperation how she difficult it was for her to carry home on public transport a number of heavy bags containing items such as potatoes.
While the father has given money and food and expensive gifts to the children in recent times, he still owes the mother $1200.00 of the costs he was ordered to pay her on 22 May 2009. During the hearing he was not able to give any assurance about when this money was likely to be paid.
In failing to pay an adequate amount of child support to the mother the father has demonstrated a poor attitude to the responsibilities of parenthood
I am satisfied that the mother has shown a good attitude to the responsibilities of parenthood. She has been available to parent [X] and [Y] since 2005 and is doing an excellent job bringing them up.
I must consider any family violence involving the children or a member of the children’s family.
I am satisfied that the father committed many acts of family violence during his relationship with the mother. I do not accept that the father was a victim of family violence at the hands of the mother.
There was no evidence however that the father was a person of violent propensities generally, and no evidence that the children were likely to be at risk of exposure to or being subjected to family violence (as it is defined in the Family Law Act) if they spent unsupervised time with the father.
The particular significance of the violence in this case is that [X] and [Y] both remember it and this has helped to shape their attitude to their father. The father’s refusal to acknowledge that the violence occurred places a significant barrier in the way of him ever establishing a meaningful relationship with his children.
I must consider any family violence order that applies to the children or a member of the children’s family if the order is a final order or the making of the order was contested by a person.
There are no family violence orders currently in place.
The mother applied for an AVO for the protection of herself and the children after the incident at the school on 17 August 2009. An interim AVO was made on 2 September 2009 and a further interim AVO was made on 14 October 2009.
The mother’s application was listed for final hearing on 4 January 2010. On that day the mother agreed to withdraw her application in exchange for the father giving an undertaking not to contact her other than through her lawyer and to strictly comply with the terms of any family law orders concerning contact with the children.
I must consider whether it would be preferable to make the order least likely to lead to further proceedings.
The orders sought by the mother are the orders least likely to lead to further proceedings, in that they will dispose of the issue of the father spending time with the children.
If I make the orders sought by the father he may be satisfied and no further proceedings might be commenced by him, but if he denigrated the mother to the children or if the children did not cope with the change to their circumstances the mother might initiate further proceedings.
A long term order for supervised time for [Y], one of the options open to the court, is potentially the order most likely to lead to further proceedings, because it is highly likely that one or other of the parents would seek to vary the order, the father because he believed that he had grounds for moving onto unsupervised time or the mother because she believed that [Y] did not want to continue regular supervised visits..

Parental Responsibility

Pursuant to s.61DA of the Family Law Act 1975 I am required to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the children or another child who at the time was a member of parent’s family, or family violence.
I am satisfied that there are reasonable grounds to believe that the father has engaged in family violence and the presumption does not apply.
The mother sought an order for sole parental responsibility, and the Independent Children’s Lawyer supported this proposal. During the course of the hearing the father’s solicitor advised that the father would not oppose the making of such an order.
I am satisfied that it is in the children’s best interests that I make the order sought by the mother. The mother has done a good job of bringing up the children and can be trusted to make good decisions for them. The father’s attitude to the mother is so negative that it would be unreasonable to expect her to discuss major long terms issues with him and attempt to reach agreement, and any discussion would almost certainly be unproductive.

Conclusion

The father sought orders that the children spend time with him from Friday until Sunday on alternate weekends during school terms, for half of the school holidays and on special days.
The submissions in support of this outcome were effectively as follows.
The orders the father sought would represent a big change for [X] and [Y], but it would be beneficial change because it would allow the children to develop a relationship with their father, something they had been denied between 2005 and the present time, and the father had a lot to offer them in terms of parental guidance, help with homework and encouragement to participate in sport.
While spending time with the father the children would be able to

re-connect with their paternal extended family and their Fijian Indian heritage.
The children might be saying at the moment that they did want to spend time with the father/spend unsupervised time with him, but their views should not be given weight. They had been fed false information about the father by the mother and it was implicit in the father’s case that once the ice was broken and the children began to spend time with him and get know him for what he was, their reluctance to spend time with him would disappear.
The father would not denigrate the mother to the children or allow them to see his 16 February 2009 affidavit, at least not until they were adults. The children were old enough to report straight back to their mother which would put a brake on the father’s behaviour in the event that he was tempted to say negative things about the mother.
I do not accept these submissions.
I am satisfied that the father was violent to the mother during the relationship. The father continues to deny it, to dispute that the children witnessed the violence, to maintain that all of the allegations he made about the mother in his 16 February 2009 are true and to maintain that the children lied about what occurred outside the school on 17 August 2009. It is difficult to see how the father could form a meaningful relationship with his children in those circumstances.
There is a high and unacceptable risk that if the children spent unsupervised time with the father they would be exposed to denigration of their mother and receipt of false information about her. The father’s views of the mother are so extreme and so strongly held that I do not accept that he would be able to restrain himself or that the spectre of the children reporting back to the mother about things the father said would act as a brake on the father exposing the children to his negative views.
There is nothing in the father’s attitude to the children themselves which might act as a brake on his behaviour. He seems incapable of empathising with them. He was prepared to assert that [X] had lied to Ms D about seeing family violence during the relationship and he contradicted the children’s written reports about the events of

17 August 2009.
Both children are opposed to spending unsupervised time with their father.
[X] is 13. His views are strongly held and he might well resist going on the visits even if ordered to do so. Alternatively he might go but behave badly as a result of resentment and anger at the outcome. Confronted with the orders he could feel betrayed by his mother and feel that no-one was listening to him. Any of these outcomes and others which could also occur would be damaging for [X]. This is a particularly grave concern given that [X] is doing so well socially and educationally at present.
The fact that the father might better be able to do maths homework with [X] than the mother would not make up to [X] for the damage which would be inflicted on him by the father denigrating the mother, passing on to [X] false allegations about the mother or denying the truth of [X]’s own memories of past events.
[Y] is 9 and also has very definite views that she does not want to spend unsupervised time with her father and does not want to spend any more time with him than the two hours per fortnight which are occurring at the moment.
[Y] may be more amenable to pressure to attend unsupervised visits if an order was made, but if she did not want to be there, if her mother was denigrated and she was provided with false information about her mother and if her father continued to maintain that her memories of witnessing violence were false and her version of the events on

17 August 2009 was false, and was unable to empathise with [Y] if she felt scared and anxious during the visits, then the order that [Y] spend time with the father as the father proposed would have a detrimental effect on [Y].
Ms D’s recommendation was as follows:
These children will not benefit from any further time with the father due to his ongoing mental health issues and his inability to identify and support the needs of the children (as opposed to his own wishes and needs). [24]
[24] Family Report paragraph 64
I have declined to find that the father has mental health issues but in my view this does not invalidate Ms D’s recommendation.
During cross-examination Ms D referred to the fact that the father insisted on having a relationship with the children on his terms and that the children might not be ready to have a relationship with him on those terms. The evidence supports a finding that the father does indeed insist on having a relationship on his terms, in that he is not willing to acknowledge his violence to the mother.
Therefore despite the fact that I cannot make a finding that the father has mental health problems, I place weight on Ms D’s recommendation.
I am not of course bound by the father’s proposals and could make an order that [X] & [Y] spend supervised time with the father. The father’s solicitor indicated during submissions that the father would accept this if it was the best he could get.
I do not consider however that such an outcome would be in [X]’s best interests either. It would still be contrary to his strongly held views, and I can have no confidence that the father and [X] would develop a meaningful relationship in this setting given the father’s denial of [X]’s realities.
The situation with [Y] is a little more complicated because she has been spending unsupervised time with the father for more than a year and a real issue arises as to whether this at least should continue.

The Independent Children’s Lawyer proposed that regular supervised time continue between [Y] and the father for two hours on one day each month for twelve months supervised by a contact centre or a private accredited supervisor and thereafter for a similar period once a month at a venue agreed between the parties and failing agreement at a contact centre or supervised by a private accredited supervisor.
This proposal has some attraction. [Y] has now been re-introduced to the father and it would perhaps be puzzling to her if the time suddenly ceased. [Y] would be protected from any denigration of the mother if the time was supervised. No occasion would arise for father and daughter to confront their different beliefs about the violence and the events of 17 August 2009.
Finally while Ms D’s recommendation in her report was that the children spend no time with the father, she said in answer to a question during cross-examination that if [Y] was happy to spend the supervised time then there was no reason why it should not occur, and the contact centre records suggest that [Y] is coping with the supervised time.
After very careful consideration however I do not intend to make an order for continuation of the supervised time between the father and [Y].
There was no evidence that long term supervised visits would be of any benefit to [Y]. The supervised visits have not led to [Y] regaining confidence in her father and when she spoke to Ms D in April 2010 she was still not willing to contemplate seeing her father unsupervised. The father had not been able to form more than a superficial relationship with his daughter. While the issue of the father’s violence to the mother and his false beliefs of an extreme nature about her remains unresolved, it is difficult to see how the relationship between father and daughter could ever be more than superficial.
[Y] is a bright 9 year old and the activities available at contact centre or even under the eye of a private supervisor in a different setting are limited. There is no prospect of the time moving to unsupervised at any given point in the future, because there are no signs of the father being willing to acknowledge that he behaved violently during the marriage and no signs that his opinion of the mother is likely to change.
Another factor mitigating against an order for supervised time in the longer term is that while the father’s solicitor advised during submissions that the father would be willing to travel to the contact centre to see the children (plural) if that was the only way that he would be able to see them, his willingness to commit to this arrangement indefinitely, and in respect of [Y] only, must be open to question. The likely outcome is either that the time would cease or that the father would apply to the court bringing on a fresh round of proceedings.
Finally the contact centre visits are a vehicle through which the father is able to continue his demeaning and controlling behaviour with the bags of groceries and school supplies rather than paying a proper level of child support.
In all the circumstances I do not consider that there is any long term benefit for [Y] in the supervised visits continuing. I intend to make the same order for [Y] as for [X] namely that there be no order for her to spend time with the father.
The mother sought an order that the children spend time with the father in accordance with their wishes. I do not intend to make this order, which is virtually incapable of enforcement. However rather than ordering that the children spend no time with the father, I will simply provide that there is no order for the children to spend time with the father. This leaves it open to the mother to arrange time in the future if something changes.
I accept that the objects and principals set out in s.60B(1) & (2) of the Family Law Act emphasise the importance to children of having two parents in their lives. These sections provide in part as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
I accept that as a result of the orders I intend to make the children will spend no time with father and very likely no time with the paternal family. They will to an extent be cut of from contact with his Fijian Indian heritage.
The emphasis is however on the best interests of children, not on the rights of parents. An outcome which results in the children having no relationship with the father and little interaction with the paternal extended family is a sad one, but if making an order that the children spend time with the father would expose the children to risk of psychological harm and no demonstrable benefit, and I am satisfied that it would, then I cannot make that order.
I intend to make the orders proposed by the Independent Children’s Lawyer about the mother passing on to the children any letters and gifts sent by the father, providing him with information about the children and encouraging the children to write to him. If the father continues to hear from the children and be made aware of their achievements there is always the chance that he will be motivated to examine his own attitudes and beliefs, out of a desire to demonstrate at some future time that it would be beneficial for the children to spend time with him. The children despite their reluctance to see him may be glad to receive letters and gifts from him which show that he has a continuing interest in them.
The mother sought an order for a continuation of the interim airport watch order restraining the father from removing the children from Australia.
Leaving children’s names on the airport watch list unnecessarily is undesirable because it has the potential to cause all sorts of problems, such as where one of the children at the age of 16 or 17 finds himself or herself unexpectedly unable to board the plane with a school group or a sporting team.
The father will be spending no time with the children and does not have their passports and I do not intend to continue the airport watch order.
The mother sought an order that she be permitted to obtain passports for the children without the father’s consent.
There was virtually no evidence about this issue, but if I refuse to make the order further litigation may become necessary in the future. The mother has lived in Australia for 16 years and there was no suggestion that she would leave Australia permanently. It would be beneficial for the children if they were able to go on an overseas holiday with the mother on occasions, including a holiday to Ireland where the mother was born. The children may also need a passport in the future for some other reason, such as an excursion overseas with a school group or a sporting team.
I intend to request the Independent Children’ Lawyer to arrange for the orders to be explained to [Y] and [X]. My particular concern is that [Y] be made aware of the court’s decision concerning the end of unsupervised time, but I intend to include [X] in the order.
I do not intend to make a ruling at this time on the Independent Children’s Lawyer’s application for costs but I will give the Independent Children’s Lawyer liberty to re-list the matter if the Independent Children’s Lawyer wishes to pursue that application.
For all of the above reasons the orders shall be as set out at the beginning of this judgment.

I certify that the preceding two hundred and seventy-five (275) paragraphs are a true copy of the reasons for judgment of Terry FM

Date: 10 December 2010