King and King (No 2)

FAMILY COURT OF AUSTRALIA

KING & KING (NO. 2)

[2013] FamCA 1096

FAMILY LAW – CHILDREN – with whom children live – with whom children spend time – children strongly resistant to spending time with father – older child to spend time and communicate with father according to her wishes – younger children to spend no time with father but to undertake therapeutic counselling to explore possibility of re-establishing children’s relationship with father.

APPLICANT:

Ms King

RESPONDENT:

Mr King

INDEPENDENT CHILDREN’S LAWYER:

Bowlan Dunstan & Associates

FILE NUMBER:

MLC

9554

2011

DATE DELIVERED:

23 October 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

11 & 12 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Sevdalis

SOLICITOR FOR THE APPLICANT:

Mark M Morgan

COUNSEL FOR THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER

Mr Dunstan

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER

Bowlan Dunstan & Associates

Orders

1.That all previous parenting orders be discharged.
2.That the mother have sole parental responsibility for the children C King born … 1996, D King born … 2003, and E King born … 2006.
3.That the children live with the mother.
4.That the child C spend time and communicate with the father in accordance with her wishes.
5.That subject to paragraph 7 hereof that there be no face-to-face time between the children and the father.
6.That the father be at liberty to maintain communication with the children via letters, cards and presents on special occasions, the wife to ensure that all such communications are provided to the children.
7.That as soon as practicable the mother engage the children D and E in therapeutic counselling, such counsellor to be recommended by the Independent Children's Lawyer and the counsellor to explore with the children the following issues:-
(a)the nature of the children’s relationship with the father; and
(b)the possibility of the children establishing face-to-face time with the father.

8.That the mother provide copies of the children’s school reports to the father and advise him of any significant issues relating to the welfare of the children.
9.That the Independent Children's Lawyer have leave to forward to the counsellor, nominated pursuant to order 7 hereof copies of the following documents:-
(a)The Children and Parents Issues Assessment prepared by Mr V dated 15 March 2012;
(b)The Family Report of Mr V dated 16 August 2013;
(c)The report from XX Contact Centre dated 5 September 2012.

10.That the father and the mother be jointly responsible for the costs of the counselling provided in order 7 hereof.
11.That the appointment of the Independent Children's Lawyer be discharged on 12 March 2014.
12.That all extant parenting applications be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Ms King

Applicant

And

Mr King

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

introduction

These proceedings relate to the parenting arrangements for the children C, aged 17, D aged 10 and E aged seven years. They have lived with their mother since the parties finally separated in August 2011. Save for one occasion at a contact centre, the children have had no time with their father since his separation from their mother in August 2011.
The mother seeks orders that the children continue to live with her and that they have no time with the father. The mother alleges that the father has threatened physical violence against her, that the father has had little involvement in the children’s lives both prior to and since the separation, that the father has withheld all financial support from the mother and the children since separation, and further, that the children are strongly opposed to spending any time with the father.
The father alleges that the mother has alienated him from the children and that the children’s opposition to spending time with him stems from the mother’s influence.
The children’s strong opposition to spending time with the father has been observed by the contact centre and Mr V, the family consultant. What marks this case as unusual is that much of the criticism of the father levelled by the mother and the children arises as a result of the financial hardships she alleges he has visited upon them rather than any other form of abuse which is often the hallmark of cases in which one parent seeks orders for “no time”.

BACKGROUND

The children’s mother is Ms King (“the mother”), aged 40 years. She is the applicant in these proceedings. She resides with the children at an address disclosed to the Court but not known to the father. She is currently unemployed.
The father is Mr King (“the father”), aged 44 years. He is the respondent in the proceedings. He resides at Suburb G and his evidence was that he is self-employed. That evidence was the subject of criticism and I will refer to it later in this judgment.
The parties first married in 1994. They separated on 23 February 1997 and divorced in 1998. Subsequent to that divorce the parties resumed their relationship and married again in 2003. Final separation occurred in August 2011.
There are three children of the marriage, namely C born in 1996 (aged 17 years), D born in 2003 (aged 10 years), and E born in 2006 (aged seven years). The child C is in Year 11 and reported to be making good progress. The child D is in Grade four and is also making good progress. The child E is in Prep and has “isolated speech development delay”. As a consequence, she is repeating her Prep year. She is having speech therapy to assist her with her speech delay.[1]
[1] Mother’s Trial Affidavit filed 5 July 2013, paragraph 20.
Proceedings commenced in this Court on 24 October 2011 upon the Initiating Application filed on behalf of the mother. In that application the mother sought parenting orders and orders for final property settlement.
The father filed a Response to Initiating Application on 22 November 2011 also seeking final orders with respect to parenting and property. On 29 November 2011 parenting applications were adjourned for hearing before Senior Registrar FitzGibbon.
On 20 December 2011 interim orders were made for the appointment of an Independent Children's Lawyer (“the ICL”) and for the parties to attend upon a family consultant for the purposes of the preparation of a Children’s and Parent Issues Assessment pursuant to s 11F of the Family Law Act (“the Act”).
The parties’ competing interim applications with respect to parenting orders came before the Senior Registrar on 28 March 2012. Following a contested interim hearing Senior Registrar FitzGibbon made orders in the following terms:-
·Until further order the children live with the wife;
·Until further order the oldest child spend time with the husband as may be agreed or requested by C and the husband; and
·Until further order the children the younger children spend time and communicate with the husband at a contact centre nominated by the ICL and to take place on such day and times as the centre has available and nominates each fortnight.
In addition to the orders made by the Senior Registrar further orders were made that day by consent which provided:-
·That the mother access and attend upon a counsellor to assist her in accordance with the suggestions contained in the Children and Parents Issues Assessment dated 15 March 2012; and
·That the mother and the father enrol, attend and successfully complete the Parenting Orders Program at XX Services noting that the mother wishes to not attend at the same time as the father.
Pursuant to the orders of 28 March 2012 arrangements were made for the father to spend time with the children at XX Contact Centre. The first occasion of such time was scheduled to occur on 1 July 2012. As a result of the distress exhibited by the children during that scheduled time the workers at the contact centre terminated the visit and the visits were placed on hold. Subsequent to that terminated visit, the children commenced counselling with the XX child and family counsellor. The children attended several sessions with that counsellor and, notwithstanding those sessions, maintained their refusal to spend time with the father. Accordingly, the XX child and family counsellor made a recommendation that future scheduled time between the children and the father be cancelled due to the children’s refusal to attend.[2]
[2]Mother’s trial affidavit, paragraph 21 and Annexure TK3.
As a consequence of the termination of the involvement of the XX Contact Centre, the father has not spent any time with the children since 1 July 2012.
On 5 March 2013 the father filed an Application in a Case wherein he sought the following orders:-
·That the children be restrained from leaving the Commonwealth of Australia; and
·That the children spend two hours twice per week with the father, such time to be supervised by the children’s cousins.
Further orders were sought with respect to financial matters.
That application came before the Honourable Justice Cronin on 28 March 2013. That day his Honour listed all outstanding applications for hearing on 1 May 2013 and made directions for the filing and service of further material by both parties. In addition, that day his Honour made orders that all financial applications be struck out and that the wife have the right to reinstate those applications upon certifying to the Registrar that they are ready to proceed, such right of reinstatement to be exercised by no later than 4.00 pm on 27 March 2014. Accordingly, all financial matters then before the Court were struck out that day.
On 9 April 2013 the father filed an Application in a Case seeking inter alia:-
·That the father and the mother have equal shared parental responsibility for the long-term care, welfare and development of the children;
·Sole parental responsibility for short-term care and welfare of the children when in their parent’s respective care; and
·Orders that the children live with the parties on a week-about basis from Friday to Friday.
On 19 April 2013 the mother filed a Response to an Application in a Case seeking orders for sole parental responsibility and that the father spend supervised time with the children at a supervised contact centre. Those applications came before the Honourable Justice Cronin on 1 May 2013. His Honour reserved his judgment and made orders on 16 May 2013 which provided:-
·That the husband and the wife be restrained by injunction from removing the children from the Commonwealth of Australia;
·That the Application in a Case filed by the husband on 9 April 2013 and the Response of the wife filed 19 April 2013 both be dismissed;
·Listing all extant applications for final orders to a first day before the Honourable Justice Cronin on 5 June 2013.
It is those final applications with respect to parenting orders that are now before the Court.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The mother relied upon:-
·Exhibit A1, being a Minute of Proposed Orders sought by the applicant mother;
·Her Amended Initiating Application filed 28 May 2013;
·Affidavit of the mother sworn 4 July 2013 and filed 5 July 2013; and
·Case Outline emailed to the Court on behalf of the mother on 10 September 2013.
The father relied upon:-
·Response to Initiating Application filed 13 June 2013;
·Affidavit of the father sworn and filed 9 September 2013; and
·Financial Statement sworn and filed 9 September 2013.
The Independent Children's Lawyer relied upon the following documents:-
·Outline of Case filed on behalf of the Independent Children's Lawyer on 9 September 2013;
·Family Report of family consultant, Mr V, dated 16 August 2013; and
·Children and Parents Issues Assessment prepared by family consultant, Mr V, dated 15 March 2012.
The orders sought by the mother were as follows:-
·That all previous parenting orders be discharged;
·That the mother have sole parental responsibility for the children;
·That the children live with the mother;
·That the oldest child spend time and communicate with the father in accordance with her wishes; and
·That the children the younger children spend no time with the father.
The father, who was self-represented, did not file a Minute of Proposed Orders. In his Response to Initiating Application the father sought orders for “some visitation rights which the Court sees fit”. He also sought orders with respect to financial matters.
At the commencement of the hearing I informed the father that there were no current financial applications before the Court and that the only outstanding applications were in relation to parenting issues. I reminded the respondent of the orders made by the Honourable Justice Cronin on 28 March 2013 which struck out all extant financial applications. In light of that information, the father did not seek to proceed with the financial aspects of his Response to Initiating Application.
At the commencement of the hearing I invited the father to state with precision the orders sought by him. The father stated that he sought orders in the following terms:-
·That the child C live with the mother;
·That C spend time with the father in accordance with her wishes;
·That the children D and E live with the mother;
·That D and E spend time with the father, such time to be supervised by a contact centre for a period of three months;
·That the said contact centre provide a report as to the progress of the father’s time;
·That there be a gradual increase in the father’s time with the children;
·That the mother provide the father with information regarding the children’s schooling, copies of school reports and information regarding any health issues affecting the children;
·That the mother inform the father of any change of her residential address; and
·That the children D and E communicate with the father by telephone for a period of 30 minutes per week.
At the commencement of the hearing the ICL indicated that his preliminary view was that he supported the position of the mother. That preliminary view altered during the course of the hearing upon hearing the evidence of the parties and the family consultant and at the commencement of his closing submissions, the ICL tendered a Minute of Proposed Orders which detailed the orders sought by him (Exhibit ICL-1). The orders sought by the ICL at the conclusion of the evidence were as follows:-
·That all previous parenting orders be discharged;
·That the mother have sole parental responsibility for the children;
·That the children live with the mother;
·Subject to the following orders regarding the children attending counselling, there be no face-to-face time between the father and the children;
·That the father be at liberty to maintain communication with the children via letters, cards and presents on special occasions;
·That as soon as practicable the mother engage the children D and E in therapeutic counselling, such counsellor to be recommended by the ICL with the counsellor to explore the following issues:-
(a)the nature of the children’s relationship with the father; and
(b)the possibility of the children establishing time with the father in the future.
·That the mother provide copies of the children’s school reports to the father and advise him of any significant issues relating to the welfare of the children;
·The ICL to be discharged on 12 March 2014;
·The ICL have leave to forward to the nominated counsellor copies of the following documents:-
(a)The Children and Parents Issues Assessment prepared by Mr V dated 15 March 2012;
(b)The Family Report of Mr V dated 16 August 2013; and
(c)The report from XX Services dated 5 September 2012.
·The father and the mother be jointly responsible for the costs of such counselling.
At the commencement of the hearing, the parties had an agreed position with respect to the orders to be made in relation to the oldest child, C. All parties agreed that orders should be made in the following terms:
·That the oldest child live with the mother; and
·That the oldest child spend time and communicate with the father in accordance with her wishes.
As the father was unrepresented, at the commencement of the hearing I provided each of the parties with copies of s 60B, s 60CA, s 60CB, s 60 CC, s 60DC, and s 60CE of the Act. I informed all parties that in accordance with the provisions of the Act I must have regard to the best interests of the children as the paramount consideration. Further I informed all parties that in determining what is in the children’s best interests I would have regard to the considerations set out in s 60CC of the Act. I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each of the parties had to cross-examine the witnesses.
Mr Dunstan as the ICL was very helpful. He agreed to go first in the cross-examination of the mother so that he could cover some of the material and so that the father could collect his thoughts as to any remaining questions. As a result, the father had the opportunity to experience how questions were to be properly framed prior to his cross-examination of the mother and the family consultant.

THE RELEVANT LEGAL PRINCIPLES

Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure 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; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They 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); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

The parties in this matter seek parenting orders as defined pursuant to s 64B of the Act. That is, they seek orders with respect to:-
·With whom the children are to spend time; and
·The allocation of parental responsibility for the children.
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the Court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. The presumption may be rebutted by evidence that satisfies me that it would not be in the children’s best interests for their parents to have equal shared parental responsibility (s 61DA(4)). For the reasons set out later in this judgment, I am satisfied that it is not in the children’s best interests for the father and the mother to have equal shared parental responsibility.
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of the witnesses. In what follows, statements of fact constitute findings of fact.

THE ISSUES

The issues in this case, as identified in the parties’ affidavits, the Family Report and during the course of the hearing may be summarised as follows:-
·Allocation of parental responsibility;
·What weight should be attributed to the clear and adamant opposition displayed by all of the children with respect to spending time with the father;
·Whether the children’s views of the father have been impacted by the mother’s actions and/or attitudes;
·Whether the children should spend time with the father; and if so
·Whether the father’s time with the children should be supervised.
The issues can most conveniently be discussed within the s 60CC considerations. I will first consider the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
The children have lived with the mother since the parties finally separated in August 2011. Save for a brief period on 1 July 2012, the father has spent no time with the children since separation.
The report of Mr V, family consultant, dated 16 August 2013 (“the Family Report”) confirms that each of the children shares a close relationship with the mother, which is unsurprising having regard to her effective sole care of the children since the parties’ separation.
Mr V observes in the Family Report that each of the children is adamantly opposed to spending any time with the father. Such was their opposition to spending time with the father that Mr V was unable to persuade the two younger children, D and E, to see the father during a planned observation session for the purposes of the preparation of the Family Report. The child C was prepared to see the father in order to confront him regarding her allegations as to his conduct. However, in the context of the preparation of the Family Report, Mr V did not feel that it was appropriate to facilitate such a meeting.
Mr V observed each of the children display a high level of distress at the prospect of seeing the father, even for the purposes of the preparation of the Family Report.
In the decision of Mazorski v Albright (2007) 37 Fam LR 518 her Honour Justice Brown considered the question of what is a meaningful relationship and concluded at paragraph 25 that a meaningful involvement “is one which is important, significant and valuable to the child”. Ordinarily, it is in children’s best interests to have a meaningful relationship with both parents, that is one that is important, significant and valuable as defined by her Honour. However, in this case the extreme distress and opposition displayed by each of the children to spending time with the father calls into question how his relationship with them is to be supported, and ultimately what the benefit is to them of having a relationship with the father which engenders such anxiety and distress.
It is necessary to consider these issues in further detail below.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother seeks orders that there be no time between the father and the children. It was submitted on her behalf that such order was necessary to protect the children from the psychological harm they might otherwise endure should they be forced to spend time with the father.
In support of that submission the mother relied upon the evidence of Mr V, and particularly his observations of the children when faced with the prospect of spending time with the father.
The child C was observed by Mr V to be a “confident and articulate adolescent who was able to clearly express her views”.[3] C informed Mr V that during 2011 there were two instances when she self-harmed, making marks to her wrists. She alleges that those incidents arose from the pressure and guilt she felt in having to conceal the father’s behaviours from the mother and not being honest with the mother about alleged extra-marital affairs that the father was engaged in. C further alleged that the father was aware of the first incident of self-harm but that he had been dismissive of her.[4]
[3] Family Report paragraph 44.
[4] Family Report paragraph 46.
C alleged that the father was generally not at home or involved in family life. She also alleged that in mid-2011 there was an incident of physical aggression whereby the father threw her onto a bed and physically restrained her in an aggressive fashion.[5]
[5] Family Report paragraph 46.
As a consequence of all of the above matters C informed Mr V that she does not want to spend any time with the father or indeed to pursue a relationship with him. Mr V reports that “It was quite apparent from her comments that [C] saw no emotional or relational benefit for her in pursuing a relationship with her father.”[6] The only circumstance in which C was prepared to contemplate a meeting with the father was to enable her to:
…hear his explanation and see what he has to say. I would not expect him to give the right information. I would predict he will try and get us to feel sorry for him. He never owns up for his faults. He will deny things to the end.[7]
[6] Family Report paragraph 50.
[7] Family Report paragraph 51.
At the commencement of the hearing it was agreed between the parties that having regard to C’s age and her stated opposition to spending time with the father, which was accepted by all parties, the only orders to be made with respect to C were that she continue to live with the mother and spend time with the father only in accordance with her own wishes.
Mr V reported that the child D also holds an extremely negative view of the father. She reported to Mr V that during the parties’ relationship the father was rarely at home and was uninvolved in family life.[8]
[8] Family Report paragraph 55.
Mr V reported that D was adamant that she did not wish to see the father during the preparation of the Family Report. Indeed, Mr V reported that “She was ‘ten out of ten’ certain that she did not want” to see him. Further, he noted that D openly wept when explaining her reasons for not wishing to see the father. He observed that “Her emotional distress was significant, quite evident and appeared to be very genuine”. [9]
[9] Family Report paragraph 57.
The child E was described by Mr V as an “emotionally and developmentally immature child who at times had some difficulty articulating her comments”.[10] Notwithstanding those apparent difficulties E was also adamant insofar as she did not want to see the father as part of the report writing process or to spend any time with him at all. E was reluctant to discuss with Mr V her feelings in relation to the father. When Mr V informed E of his proposal to bring the father into the room to meet with herself and D, Mr V observed that E “became significantly distressed and openly wept”. Mr V asked E why she was so distressed and she reported “I don’t like him. I hate daddy.”[11]
[10] Family Report paragraph 59.
[11] Family Report paragraph 62.
It is against that backdrop that Mr V makes recommendations which include that at this stage the younger children do not spend time with their father. Ultimately, it was his view that the distress of the children arising from spending time with the father outweighs any potential benefit to them of seeing him. At paragraph 86 of the Family Report, Mr V observed that both are “young children who are developmentally and emotionally vulnerable”. At paragraph 88 Mr V concluded:
The level of distress they would experience would, in the writer’s view, significantly outweigh the benefits for the children of spending time with someone who effectively has not been a significant parenting figure for them. In addition, the children need the opportunity to be relieved of the emotional burden they are currently experiencing in relation to the parental conflict and dispute and how they feel about spending time with their father.
The family consultant confirmed that opinion during cross-examination by the ICL, counsel for the mother and the father. Mr V has prepared two reports in this matter and has had the benefit of interviewing the parties and the children on three separate occasions between February 2012 and August 2013. He has presented thorough and detailed reports of his observations. When his observations and recommendations were challenged in cross-examination his oral evidence was thoughtful and considered. I find that there were sound bases for Mr V’s recommendations and the reasons for those recommendations. I accept the evidence of Mr V as to the potential impact upon the children of spending time with the father.
Accordingly, I am satisfied that there is a risk of psychological harm to the children in the event that orders are made for them to spend time with the father.
I now turn to the additional considerations in s 60CC(3) and s 60CC(4) of the Act.
60CC(3)
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:-
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Each of the children has expressed in the strongest terms to Mr V their opposition to spending any time with the father.
As detailed above, due to the agreement between the parties that the oldest child will continue to live with the mother and spend time with the father in accordance with her wishes, I need not address C’s views.
At paragraph 53 of the Family Report, Mr V observed that the child D presented as “A confident child who was able to clearly describe her life experiences, as well as express her views on a variety of matters”. D was observed to speak positively about the mother and Mr V noted that “It was apparent that [D] views her mother as the primary source of practical and emotional care and nurture for her”.[12] Accordingly, I am satisfied that D enjoys a close relationship with the mother as her primary attachment figure.
[12] Family Report paragraph 54.
In contrast, D’s statements to Mr V regarding her experiences of the father and his role in her life were “primarily negative in nature and did not suggest that they had effectively shared an historically close relationship”.[13]
[13] Family Report paragraph 55.
As detailed above, D clearly stated to Mr V that she did not want to see the father and indeed that she was “ten out of ten” certain that she did not wish to spend time with him. D exhibited emotional distress and openly wept with Mr V when exploring the reasons why she did not wish to see the father. During the course of that discussion D explained that the father had not attended her eighth birthday party, that he did not telephone her for her birthday and that he did not call her or attend upon her when she was sick. [14] D completely opposed the prospect of seeing the father during the assessment by Mr V. Mr V observed that she appeared significantly distressed at the prospect of seeing the father and ultimately he made a professional decision not to proceed with an observation session between the child D and the father.[15]
[14] Family Report paragraph 57.
[15] Family Report paragraph 58.
Mr V was cross-examined as to the strength of D’s views held for so long after those events had occurred. It was his evidence that while objectively, those events do not appear of great moment, to a child of D’s age and sensitivities they assumed much greater importance. Seen in this context, Mr V formed the view that the strength of D’s opposition to seeing the father was understandable.
Mr V observed the child E to be emotionally and developmentally immature and to be a child who at times had difficulty articulating her comments. As a consequence Mr V noted that he had difficulty in ascertaining E’s views or exploring her experiences of the father in any great length.[16]
[16] Family Report paragraph 59.
The child E reported to Mr V a positive description of her life with the mother, explaining that she generally “has happy faces” when she is with her mother.[17] Accordingly, I am satisfied that E enjoys a close and positive relationship with the mother.
[17] Family Report paragraph 60.
At paragraph 61 of the Family Report, Mr V notes that E was reluctant to explore her current feelings and perceptions of the father, stating that she didn’t want to talk about it.
At paragraph 62 of the Family Report, Mr V noted that E was adamant that she did not want to see the father or to spend any time with him at all. E informed Mr V that she would “have a sad, no angry face” if she was required to see the father. As detailed above, when Mr V informed E of the proposed assessment of her with the father, Mr V observed that E became “significantly distressed and openly wept”. Mr V enquired as to why she was so distressed and she stated “I don’t like him. I hate daddy.” Mr V described E as becoming more distressed as she spoke about these matters and noted that she stated “I don’t want to (a reference to seeing the father). I don’t want daddy here. Please do not get my daddy”[18]. Mr V reported that E appeared relieved when informed that the proposed assessment with the father would not proceed.
[18] Family Report paragraph 62.
At issue, is what weight I should give to the strongly expressed views of both D and E, particularly having regard to their ages.
Mr V was cross-examined at length as to the genuineness of the expressed views of both children. At paragraph 76 of the Family Report, Mr V noted that there were a number of factors at play in contributing to how the children perceive the father and the idea of spending time with him. At paragraph 77 of the Family Report he noted that in relation to the child D, “She could see no valid reason why she would want to pursue a relationship with somebody who had effectively never really been actively involved in her life”. Further, he noted that D was clearly distressed by the two issues involving the father which had occurred for her at a vulnerable time, that being his failure to attend her birthday party or to attend to her when she was ill.
With respect to the child E, at paragraph 77 of the Family Report, Mr V noted that in circumstances where her primary emotional attachment is to her mother and siblings (whom she understands do not like the father) it would have been difficult for E to develop an independent and positive sense of the father. This is particularly so having regard to her emotional immaturity and apparent limited experience of the father as an active parent in her life.
During cross-examination by both the ICL and counsel for the mother, Mr V confirmed his assessment of each child’s views. Further, he confirmed the recommendations made by him at paragraph 90 of the Family Report.
During cross-examination by the ICL, Mr V confirmed that:-
·The two younger girls were highly distressed at the prospect of coming into contact with the father;
·That the child E is young and vulnerable and that it would be difficult for her not to be aware of her siblings’ view of the father or the mother’s view of the father;
·The children have not had their own positive experiences of the father;
·That the children’s distress appeared genuine; and
·The child D’s distress was quite heightened and was maintained over a period of time.
At paragraph 79 of the Family Report, Mr V observes that the anger and distress the children feel towards the father has resulted in their relationship becoming significantly estranged. Significantly, Mr V noted:
It is highly unlikely that they will be able to change their views in the immediate future, as their estrangement from him appears to have remained constant and significant since the parental separation in August 2011.
Mr V noted at paragraph 85 of the Family Report the impact upon the children of spending time with the father to be as follows:
The children D and E would experience heightened levels of emotional and psychological distress if they were required to spend time with their father in the future. In addition, the writer would foresee significant and possibly insurmountable difficulties emerging for any potential supervisor when seeking to facilitate the children spending time with their father given their presentation and the history of their past responses.
Having regard to the evidence of Mr V, I am satisfied that the children are estranged from the father. Further, given the evidence of Mr V as to the levels of distress experienced by the children when contemplating spending time with the father I am satisfied that significant weight must be given to the expressed views of each of the children, notwithstanding their young ages.

60CC(3)(c)The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; and
60CC(4) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
i.to participate in making decisions about major long-term issues in relation to the children; and
ii.to spend time with the child; and
iii.to communicate with the child

The mother alleged that the father has had little to do with the children in the period prior to the parties’ separation. During cross-examination by the ICL, the mother alleged that the father worked seven days per week and that his hours of work were from 7.00 am to 6.30 pm. Further she alleged that he was on-call in the evenings and often had to make deliveries to various locations in his role as a supplier of goods to the hospitality industry. It was her evidence that the father was not actively involved in parenting the children. She denied the father’s allegation that he took the children to school and observed that in fact the children’s school was “five minutes across the road”. Further, it was her evidence that generally the family had dinner on most evenings at 6.30 pm and that the children were in bed by 8.00 pm. Accordingly, the mother maintained that the father had little involvement in the children’s daily lives.

The father was cross-examined by counsel for the mother as to his level of involvement in the family’s life prior to separation. Under cross-examination the father conceded that he did work seven days per week albeit his evidence was that his hours of work from Monday to Friday were 9.00 am to 6.00 pm and that on Saturday and Sunday he worked from 10.00 am to 3.00 pm. When pressed, the father conceded that he was involved in the care of the children, but not as much as the mother would have liked.
The reports of both the younger children to Mr V as to the level of the father’s involvement in their care prior to separation is consistent with the mother’s evidence. At paragraph 49 of the Family Report, Mr V notes that the oldest child explained to him that the father “was generally not at home or involved in their family life”. Similarly at paragraph 55 of the Family Report, The child D’s description of life with the father prior to separation is that “[he] was rarely at home and generally did not involve himself in family life”. She stated:
He never actually did stuff [with the family]…he was really busy and not at home much. He would go to work early in the morning and come home late. Sometimes I saw him before I went to bed. Most of the time I did not see him.
I accept the evidence of the mother which is consistent with the statements made by the children C and D to Mr V. I am satisfied that the father had little involvement in the day-to-day care of the children prior to the parties’ separation.
Since separation the father has had time with the children on only one occasion, being 1 July 2012 at the XX Contact Centre. That time occurred in accordance with the orders of Senior Registrar FitzGibbon made 28 March 2012. Due to the distress exhibited by the children on that occasion the time was terminated by the supervisor after approximately 10 minutes.
The father was cross-examined by the ICL in relation to his actions in pursuing time with the children following the parties’ separation. In particular, it was put to the father that he had an opportunity at that hearing on 28 March 2012 to secure orders for time with the children commencing immediately on the basis that that time be supervised by someone known to the children (as had been recommended by Mr V). On that occasion the mother had proposed that either her neighbour, Mr W, or a family friend, Ms R, supervise the children's time with the father. Under cross-examination the father confirmed that he had rejected both of those persons as supervisors as they had been “nasty” to him. It was put to the father that that hearing presented to him a “golden opportunity” for him to spend time with the children with the mother’s consent commencing in March 2012. The father conceded that that was the position.
It was put to the father that his decision to insist upon a contact centre as opposed to a known supervisor of necessity meant that there was a delay in the commencement of this time with the children. In response the father alleged that his former neighbour Mr W had been harassing him at his home. Mr W was the parties’ next door neighbour prior to separation. The father conceded that he had known Mr W for a period of approximately 18 months at the time he was proposed as a supervisor. I do not accept the father’s evidence as to the conduct of Mr W which appeared to have been made up during the course of the cross examination.
The father appeared to take no responsibility for his role in the delay to the commencement of his time, instead preferring to make baseless accusations against the two supervisors proposed by the mother. I note from the Reasons for Judgment delivered by Senior Registrar FitzGibbon that day that each of the mother’s proposed supervisors knew the children well and were supported by the ICL as being persons appropriate to undertake supervision of the father’s time with the children. Instead the father sought the use of the contact centre with the consequential delays associated therewith.
In view of that conduct by the father I am satisfied that in relation to the issue of the commencement of his time with the children, he placed his own needs above those of the children, his own discomfort with the proposed supervisors taking priority over the security and comfort that the children would derive from having supervisors known to them as was recommended by V in his first report dated 15 March 2012.

60CC(4)
(c)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

A significant issue in the matter from the mother’s perspective is the alleged failure by the father to provide financial support for the mother and children following the parties’ separation. In her trial affidavit filed 5 July 2013[19] and in her oral evidence the mother alleged that by November 2011 (some three months after the parties’ separation) the father had stopped making payments to her. As a result of his failure to meet his obligations the mother defaulted on the lease of her home, her mobile telephone was cut off, the land-line telephone and other utilities to the home were also cut off. On the weekend the power to her home was disconnected, her neighbour, Mr W ran a power cord over the fence to provide electricity to the home occupied by the mother and the children.
[19] Mother’s trial affidavit filed 5 July 2013 paragraph 14.
Under cross-examination by the ICL the mother stated that the children were aware of the impact of the father’s failure to provide financial support. The mother and the children were forced to move from their rental accommodation to the mother’s parents’ home. Further, the children were present in the home when the electricity was cut off. The mother also alleged that because of the father’s failure to pay school fees for the children’s attendance at K School, the children were forced to change schools at the conclusion of the 2011 year. The child D had attended at that school since she was in Prep and the child C had been in attendance at that school since Grade six. The mother’s evidence was that both children had enjoyed attending that school and were progressing well in that environment.
On 29 November 2011 orders were made by his Honour Justice Cronin that until further order the father pay to the mother spousal maintenance in the sum of $475 per week. Further orders were made by his Honour on 24 January 2012 requiring that the father forthwith pay to the mother arrears of spousal maintenance fixed in the sum of $3,325. A further order was made that day that in the event that the payment of arrears was not paid by 4.00 pm the real estate agent acting as agent for the father with respect to an investment property be directed to pay all future payments of rent received by them on behalf of the father after deduction of their fees to the mother in part satisfaction of the father’s obligations pursuant to the orders of 29 November 2011.
It was the mother’s evidence that approximately four months after the order was made for the rental agent to direct rental payments to her, the father ceased engaging that agent to act on his behalf. As a consequence the mother ceased receiving payment of rental in part-satisfaction of the father’s spousal maintenance obligations. Further, it was the mother’s evidence that the father had failed to pay arrears of spousal maintenance and has paid nominal child support since the parties’ separation.
Counsel for the mother cross-examined the father as to the level of financial support provided by him to the family following the parties’ separation. Under cross-examination the father indicated that he was unsure as to the quantum of child support arrears, it having been put to him that those arrears were approximately $7,000. Further when it was put to him that there were arrears of spousal maintenance in the sum of $3,325 it was the father’s evidence that he was unaware of that liability. The father did eventually concede that he had not paid any of the outstanding spousal maintenance arrears.
Under cross-examination by the ICL the father conceded that he was the family’s sole breadwinner and that the family was fully dependent upon him for their financial support. He also conceded that the mother was reliant upon him to pay rental for herself and the children.
The ICL also sought to cross-examine the father as to his current financial circumstances. The father was evasive as to his current financial position. Whilst he disclosed his occupation in his financial statement filed 9 September 2013 as “sales” at the commencement of his oral evidence he described himself as a “broker”. The father stated that as soon as the mother put the family business into liquidation in the month following separation he stopped working. He stated that he was unemployed from late-November 2011 and that he resumed work in February or March of 2012. When asked as to when he filed his last tax return the father stated that he had last filed such a return last year. However he subsequently conceded that he had not filed a return for the last three years and when questioned as to why that was so he indicated that there was “no reason”.
I am satisfied that throughout the course of the parties’ relationship the mother was primarily engaged in home duties and that the father was principally responsible for the financial support of the family. I am also satisfied that after the parties’ separation the father ceased meeting his financial obligations towards the mother and the children. I am satisfied that notwithstanding the orders made by his Honour Justice Cronin that the father provide spousal maintenance for the mother and that subsequently he pay arrears of spousal maintenance, the father has failed to comply with those orders. Further, I am satisfied that the father has failed to provide appropriate child support for the children.
I find that the father’s failure to provide appropriate financial support for the mother and the children has had a dramatic and significant impact on the children. As a consequence of his failure to maintain the children they have been required to change their residence and move from private schools. Further, I am satisfied that they have felt the direct impact of the termination of utilities at the family home.
Based upon the evidence of the mother and Mr V as detailed above, I am satisfied that the father’s failure to meet his financial obligations has directly affected the attitudes of the mother and the children towards him. The mother displayed anger and hostility towards the father when describing the impact of the removal by the father of financial support for the family.
It is evident that all of the children have been made aware of the financial issues between the parties. At paragraph 56 of the Family Report, Mr V describes the child D’s knowledge of those issues. She describes her belief that the father had been “hiding lots of money”. Mr V reports that:
She was also aware that her mother perceived her father in a very negative light and regarded him as a ‘bad person’ because ‘he just had all these houses. He has lots of money but didn’t give it to us … mum told us’.
I am satisfied that the children are cognisant of the financial dispute between the parties by virtue of their personal experiences within the household (for example the disconnection of power and telephone to the home) and also because of matters discussed with them by the mother.

60CC(3)
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

The children’s vehement opposition to spending any time with the father poses a significant practical difficulty in facilitating them spending time with the father. When time was previously ordered to occur at the XX Contact Centre, such time was unable to be facilitated due to the children’s opposition to that time. The children exhibited high levels of distress on that occasion and as a consequence the service ended the visit prematurely. In particular, the child D was observed to refuse to engage with the father and asked the supervisors to call for the mother as she wished to leave the service. The child E requested to leave the service with D and the supervised visit was then cancelled. Following that visit the children attended a child and family counsellor at the contact service. However that service subsequently cancelled the supervised time due to the refusal of both children to attend.[20]
[20] Mother’s trial affidavit filed 5 July 2013 Annexure TK3 (summary – XX Contact Centre)
Mr V experienced similar difficulties when endeavouring to facilitate a meeting between the children and the father for the preparation of his Family Report. At paragraph 84 of the Family Report he observed that:
…it would be very difficult to facilitate [D] and [E] spending any time with their father or for any effective process to be identified that will serve to repair the father/daughter relationships. The attempts made in 2012 were clearly unsuccessful and apparently resulted in both children, to varying degrees, displaying highly resistant and distressing responses to seeing their father. During the writer’s interviews with them, both children became significantly distressed even when the proposition of seeing their father as part of the assessment process was put to them. Their emotional distress appeared to be genuine and not something that was contrived for the benefit of the writer or the primary product of directions or undue influence from their mother.
I am satisfied that the level of opposition exhibited by both children to spending time with the father will be a significant impediment to any future arrangements for them to spend time with him.

60CC(3)

(f) the capacity of:

(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

As outlined above it is my view that the father has demonstrated a poor attitude to his financial obligations with respect to the children. Further, having observed his responses to questions regarding the level of financial support provided by him to the children I formed the view that he had little insight as to the impact of his failure to meet his obligations upon the children.
There were other aspects of the father’s evidence which also illustrated his limited insight as to the effect of his conduct upon the children.
The father was cross-examined by the ICL as to the reasons why the children do not wish to see him. It was put to him that he does not accept any responsibility for the circumstances of his relationship with the children. The father confirmed that he was not responsible for the poor relationship and squarely lay the blame for the difficulties in his relationships with the children at the feet of the mother.
Given the financial pressures which the mother and the children were subjected to in the months following the parties’ separation, and the direct impact that had upon the children by virtue of the necessity for them to change their residence and their schools, it is evident that the father must bear some responsibility for the consequential anger and hostility exhibited by the children towards him in the aftermath of those actions.
The disclosures made by the oldest child to Mr V with respect to the father’s conduct in the latter stages of the parties’ relationship also raise concerns as to the father’s insight as to the impact of his behaviour upon the children. At paragraph 49 of the Family Report, Mr V notes statements made by C as to events which occurred in or about 2011. He reports that C stated that prior to the parties’ separation the father had begun to take her into his confidence and inform her about his associations with well-known criminal figures. C also stated that the father had introduced her to a number of younger females with whom she understood the father was having some form of relationship. C alleged that the father had told her she was not to tell her mother about these matters. It was those secrets that C alleged so burdened her that she began self-harming. At paragraph 46 of the Family Report, Mr V notes that C informed him that she had made the father aware of the cuts to her wrist on the first occasion but that the father had been dismissive of them.
These matters were put to the father by counsel for the mother. Whilst the father admitted that he spoke to the oldest child as though she were an adult he denied the allegations that he had informed her of his association with “criminal figures” or that he had introduced her to a number of young females with whom he was having relationships. His response to the latter allegation was that the younger women were in fact members of his staff. Further, the father denied that he had told C not to tell her mother about these matters. When asked whether C had simply made up these allegations the father agreed with that proposition.
The father’s evidence in relation to these matters was unconvincing. The father denied knowing anything about the secrets C alleged she was required to keep. Further he denied seeing the cuts to C’s wrists. He claimed that the first time he became aware of C’s issues was when he read Mr V’s first report. The father exhibited a dismissive attitude when responding to these allegations and his evidence was unconvincing.
I accept the matters contained in Mr V’s report as to the statements made by C regarding the secrets the father shared with her and as to C’s self-harming.
In light of those matters I find that the father has demonstrated little insight as to the children’s emotional needs and a poor attitude to the responsibilities of parenthood.
Since the parties’ separation the mother has been solely responsible for the care of the children. She has had little financial support from the father and save for the one occasion referred to when he saw the children at XX, the father has been absent from the children’s lives. Mr V reports that all of the children view the mother in a positive light. I am satisfied that the mother is a loving and devoted parent.
The mother was cross-examined in relation to her attitude to the children spending time with the father and as to the degree to which the children have been informed and involved in the financial issues between the parents.
When giving evidence in relation to her financial circumstances following the separation the mother displayed anger and hostility towards the husband. It is evident from her answers that she remains deeply affected by the circumstances in which she found herself and the children following the parties’ separation.
The mother conceded that at the time of the separation the children loved and respected their father and wanted to see him and further that the oldest child had contacted the father in order to have dinner with him. When asked whether she was supportive of the relationship between the children and their father at the time of separation she confirmed that she was supportive of that relationship and added that she would not stop the children seeing their father as “he hadn’t done anything wrong at that time”.
To her credit the mother acknowledges that she did involve the children in the dispute in the months following the separation and she conceded that by January 2012 she was not at all supportive of the children having a relationship with the father. She stated that she felt harassed by the father due to his conduct in relation to the financial matters. Further she acknowledged she had a part to play in how the children now felt about their father.

It was the mother’s evidence that the children knew of the financial pressures upon the family as the rent was not being paid, the utility bills were not being paid and they had to change school. Further the mother gave evidence that there was “no food in the fridge”.
In his first report, Mr V observed that:
Both [D] and [E] had been exposed to certain information and comments from their mother that negatively reflects on their father.
Further Mr V noted that:
It will be important for [the mother] to understand that whilst she may have legitimate reasons for being significantly angry and distressed with [the father] and his actions, it will nevertheless not be helpful for the children if they are exposed to her intense feelings and/or are provided with negative information about their father that would in many respects be confusing for them. [The mother] needs to access a counsellor and/or personal networks that will enable her to have an appropriate forum for expressing her emotions and thoughts that will shield the children from inappropriate information about their father and her intense feelings. It is understood that she plans to do so. It would also be important for her to understand the adverse implications for the children if they continue to be exposed to such experiences. A referral to an appropriate parenting program would assist her.[21]
[21] Children and Parents Issues Assessment of Mr V dated 15 March 2012 page 8.
In her trial affidavit, the mother deposed that since speaking with Mr V for the purposes of the preparation of his first report that she had not made adverse comments in relation to the father.[22] During her most recent interviews with Mr V, the mother confirmed that subsequent to the release of his first report she had attended a counsellor to assist her and further that she had attended a parenting orders program in accordance with his earlier recommendations and the orders made 28 March 2012.
[22] Mother’s trial affidavit filed 5 July 2013, paragraph 16.
Later in her evidence the mother admitted that she had not encouraged the children to spend time with the father and that she would not do so in the future. The ICL then asked the mother what steps she would take to facilitate time between the children and the father in the event they expressed an interest in seeing their father. The mother responded that she would probably organise for the children to see their father with the assistance of a friend or neighbour. She confirmed that she would facilitate the children receiving correspondence from the father stating that she did not “have a problem with that”.
The mother’s evidence in relation to whether she would support or encourage the children’s relationship with the father was most concerning. I am satisfied that the mother does not accept the potential benefit to the children of having the father meaningfully involved in their lives.
Mr V was cross-examined in relation to the mother’s attitude and the level of support that she provides to the children in having a relationship with the father. Mr V’s evidence was that without the mothers’ support it would be difficult for the children to have a relationship with the father.
Mr V was asked as to whether or not it was his view that the mother was still involving the children in the dispute between the parents. Mr V confirmed that it was his sense that she was no longer involving the children in the dispute. In addition to the statements made to him by the mother, Mr V stated that the child D had also confirmed that the mother was no longer talking about the father in her presence. Mr V indicated that he felt the mother had significantly improved in this area compared to the attitude displayed by her when he first met her in February 2012.
Notwithstanding the concerns as to the mother’s ongoing anger and hostility towards the father and her stated refusal to encourage the father’s time with the children, Mr V maintained his view that any benefit of the children spending time with the father is out-weighed by the extreme emotional distress that they would likely experience as a result of that time. Mr V confirmed the recommendations contained within the Family Report.
The ICL asked Mr V whether the children’s relationship with the father may be supported or encouraged by them having counselling directed towards the nature of their relationship with the father. Mr V agreed that such counselling prior to the children spending time with the father may be of benefit.
Whilst I have concerns as to the mother’s attitude towards the children spending time with the father I accept that she is no longer speaking of the father in the children’s presence or hearing.
I observed the oral evidence of Mr V and having heard that evidence I accept his recommendations. Mr V has had the benefit of interviewing the parents and the children on 21 February 2012, 7 March 2012 and 6 August 2013. He has observed first-hand the parents and the children, has had the opportunity to explore with them their feelings and attitude towards spending time with the father and further the manner in which the mother has dealt with those issues in her household. In light of his observations of the children and the mother and the observed changes in attitude which he has reported between February 2012 and August 2013 I accept his evidence that there has been a shift in the mother’s attitude and that such improvement is likely to continue.
60CC(3)
(j)any family violence involving the child or a member of the child’s family;
The child C has alleged that the father was physically aggressive towards her following an argument in mid-2011. C alleges that the father “threw” her onto the bed and physically restrained her in an aggressive manner.[23] These matters were put to the father. He denied those allegations. He admitted there was one occasion when he intervened between C and D when C was hitting her younger sister but denied he threw C as alleged.
[23] Family Report paragraph 49
I formed the view that the father sought to minimise this incident and indeed that he was rather dismissive of the incident.
In light of the manner in which the father gave evidence in relation to these allegations, I am satisfied that the matters alleged by C to Mr V did in fact occur. I am further satisfied that this event is likely to have influenced C’s attitude towards spending time with the father as reported by C to Mr V.
The father makes a number of allegations at to the mother’s conduct in his affidavit filed 2 December 2011, including that:-
·the mother screamed at and abused the oldest child (paragraph 38);
·the mother struck the father on the head with a hot titanium pan and grabbed a kitchen knife and chased him out of the house (paragraph 39);
·the mother used the kitchen knife and slashed the four tyres of the father’s car (paragraph 39); and
·on 31 August 2011 the mother woke the father at 5.00 am with a knife to his throat (paragraph 40).
Each of those allegations was put to the mother by the ICL. The mother denied each allegation. It was her evidence that the parties separated on 5 August 2011 and that the father left the home in an orderly fashion, that he was observed leaving by the next door neighbour, and that he left peacefully and quietly. The mother’s evidence was that the father was not living in the household on 31 August 2011 when she is alleged to have held a knife to his throat. She denies that incident occurred then or at all.
I found the mother to be an open and forthright witness who readily made concessions as to her conduct in relation to the children and her influence upon them in the period following the parties’ separation. Accordingly, I accept her evidence in relation to the alleged family violence contained in the father’s affidavit.
60CC(3)
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These proceedings have been on foot since October 2011 and there have been no less than nine interim hearings in relation to both parenting and financial matters. As detailed above, the children have been exposed to the conflict between the parents arising from these proceedings.
The orders I propose to make will end the parenting proceedings and I am satisfied will be least likely to lead to the institution of further proceedings in relation to the children.
They will give the children an opportunity to attend counselling which will address the nature of their relationship with the father and assist them in exploring the possibility of establishing a relationship with him in the future. The orders will also ensure that the father has the opportunity to communicate with the children by letters, cards and presents on special occasions. Further, the father will be kept informed of the children’s progress at school and in relation to any other significant aspect of their lives.
60CC(3)
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(m)any other fact or circumstance that the court thinks is relevant.
These factors are either not relevant in this case or have already been dealt with.

CONCLUSION

At the conclusion of the evidence the ICL informed the Court that his position had changed from the one with which he opened the case. The ICL provided a Minute of Order, being Exhibit ICL-1. The orders sought by the ICL are as follows:-
·That all previous parenting orders be discharged;
·That the mother have sole parental responsibility of the children;
·That the children live with the mother;
·That there be no face-to-face time between the children and the father;
·That the father be at liberty to maintain communication with the children via letters, cards and presents on special occasions;
·That as soon as practicable the mother engage the children D and E in therapeutic counselling, such counsellor to be recommended by the ICL, with the counsellor to explore the following issues:-
(a)the nature of the children’s relationship with the father; and
(b)the possibility of the children establishing time with the father in the future.
·The mother provide copies of the children’s school reports to the father and advise him of any significant issues relating to the welfare of the children;
·The ICL to be discharged on 12 March 2014;
·That the ICL have leave to forward to the nominated counsellor copies of the following documents:-
(a)The Children and Parents Issues Assessment prepared by Mr V dated 15 March 2012;
(b)The Family Report of Mr V dated 16 August 2013; and
(c)The report from XX Contact Centre dated 5 September 2012.
·That the father and the mother be jointly responsible for the costs of such counselling.
The ICL submitted that orders in the terms set out above were appropriate in light of the mother’s evidence as to her attitude towards the children spending time with the father and her lack of insight as to the need for the children to have a relationship with the father.
As detailed above I share the concerns of the ICL. The ICL further submitted that the proposal for the younger children to have therapeutic counselling was consistent with, and addressed the issues identified by, Mr V at paragraph 81 of the Family Report wherein he noted that:
It will not be helpful for [the younger children] if the current significantly problematic nature of their relationship with their father and their understanding of him is allowed to continue. For them to develop into emotionally and psychologically healthy children and young women who will be able to form positive relationships with males in the future, they will need to possess a more helpful and positive understanding of their father and their relationship with him.
Those identified concerns support the need for the children to have counselling to address the issues surrounding their relationship with the father. I agree with the ICL and accept those submissions.
The ICL has generously agreed to continue his role until 12 March 2014, notwithstanding that he is unlikely to be funded to continue in that role in order to oversee the implementation of the counselling process and ensure that the benefits to the children of such counselling are maximised. I thank the ICL for his dedication and commitment in this matter.
As detailed above, the children have for a period of at least 14 months since the time that Mr V first interviewed them up until 6 August 2013 when he most recently interviewed them maintained staunch opposition to spending any time with the father and have exhibited significant distress at the prospect of being forced to spend time with him. Such is their level of distress and opposition to spending time with the father that I am satisfied that any proposal for the children to spend time with the father in the current circumstances is likely to be unsuccessful. That this is so is evident from the previous attempts for the children to have supervised time with the father at XX Contact Centre.
I am satisfied that it would not be in the children’s best interests for them to spend time with the father in light of their vehement opposition to such an arrangement and having regard to the distress exhibited by them and observed by Mr V in both of his reports.
The ICL proposes that the mother should have sole parental responsibility for the children. The reality for these children since their parents’ separation is that the mother has effectively been exercising sole parental responsibility already. The parents have had a highly conflictual relationship since their separation in August 2011. This is evidenced by the number of interim proceedings heard in this Court and the evidence of each party in these proceedings. At this time, the children are strongly opposed to having any relationship with the father. I am satisfied in light of the overwhelming evidence as to the children’s strongly held views, the highly conflictual relationship between the parents and their consequential difficulties in communicating that the presumption of equal shared parental responsibility is rebutted and that it would not be in the best interests of the children for their parents to have equal shared parental responsibility in accordance with the provisions of s 61DA(4).
I accept the evidence of Mr V as to the difficulties in facilitating the younger children spending any time with the father. Further, I accept his evidence as to the emotional distress exhibited by the children being genuine and not something contrived for the benefit of Mr V or contrived at the direction or undue influence of the mother.
I accept that D and E would have difficulties in managing their heightened distress if required to spend time with the father. Accordingly, I accept the recommendations of Mr V that there should be no time between the children and the father.
Accordingly, the orders I propose to make are as follows:-
1.That all previous parenting orders be discharged.
2.That the mother have sole parental responsibility for the children C King born … 1996, D King born … 2003, and E King born … 2006.
3.That the children live with the mother.
4.That the child C spend time and communicate with the father in accordance with her wishes.
5.That subject to paragraph 7 hereof that there be no face-to-face time between the children and the father.
6.That the father be at liberty to maintain communication with the children via letters, cards and presents on special occasions, the wife to ensure that all such communications are provided to the children.
7.That as soon as practicable the mother engage the children D and E in therapeutic counselling, such counsellor to be recommended by the Independent Children's Lawyer and the counsellor to explore with the children the following issues:-
(a)the nature of the children’s relationship with the father; and
(b)the possibility of the children establishing face-to-face time with the father.
8.That the mother provide copies of the children’s school reports to the father and advise him of any significant issues relating to the welfare of the children.
9.That the Independent Children's Lawyer have leave to forward to the counsellor, nominated pursuant to order 7 hereof copies of the following documents:-
(a)The Children and Parents Issues Assessment prepared by Mr V dated 15 March 2012;
(b)The Family Report of Mr V dated 16 August 2013;
(c)The report from XX Contact Centre dated 5 September 2012.
13.That the father and the mother be jointly responsible for the costs of the counselling provided in order 7 hereof.
14.That the appointment of the Independent Children's Lawyer be discharged on 12 March 2014.
15.That all extant parenting applications be otherwise dismissed.

I certify that the preceding One hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 23 October 2013.

Associate:

Date: 23 October 2013

[2013] FamCA 1096

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