LENNOX & LENNOX

FAMILY COURT OF AUSTRALIA

LENNOX & LENNOX

[2016] FamCA 367

FAMILY LAW – CHILDREN – Best Interests – Where the children’s relationships with the mother are important and valuable to them – Where the nature of the eldest child’s relationship with the father means she derives little, if any, benefit from it and maintenance of that relationship is liable to cause her psychological harm – Where much the same may be said of the relationship between the youngest child and the father – Where the evidence proved the father was an oppressively violent domestic partner – Where the evidence of family violence stops around the time of the parties’ separation, well over three years ago, and accordingly there is no current need to protect the children from any psychological harm from exposure to family violence committed by the father – Where the father demonstrated no tangible change in his attitude or insight into his past actions – Children to live with the mother – Where orders requiring the children to spend more, unsupervised time with the father would certainly be detrimental to the mother’s emotional stability – Where the children should not be treated differentially and so the orders must be a compromise between the needs and desires of both children – Children to spend supervised time with the father on two occasions each year – Where occasional written communication between the father and the children is permitted – Where otherwise the father is restrained from approaching the mother’s residence or any school attended by either child

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply because of the proven family violence between the parties – Where such an order would not be in the children’s best interests – Where the party with whom the children live should have exclusive parental responsibility – Mother to have sole parental responsibility

Family Law Act 1975 (Cth), ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B

Hepburn & Noble (2010) FLC 93-438
Marriage of Sedgley (1995) 19 Fam LR 363
Miller & Harrington (2008) FLC 93-383
Re Andrew (1996) 20 Fam LR 538
Schorel & Schorel (1990) FLC 92-144

APPLICANT:

Ms Lennox

RESPONDENT:

Mr Lennox

INDEPENDENT CHILDREN’S LAWYER:

Foat Roberts Lawyers

FILE NUMBER:

NCC

1411

2013

DATE DELIVERED:

19 May 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

2, 3 & 4 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms V Carty

SOLICITOR FOR THE APPLICANT:

Oliver Campbell Heslop Lawyers

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr P Davies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Foat Roberts Lawyers

Orders

All former orders in respect of the following children (“the children”) are discharged:
(a) B, born … 2007; and
(b) C, born … 2010.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The parties shall take all reasonable steps to ensure that the children spend supervised time with the father for two hours on the first Saturday in the months of June and December each year.
For the purpose of implementing Order 4 hereof:
(a)The supervisor of the time spent by the children with the father shall, in the event of disagreement between the parties, be staff at Relationships Australia or some other person or entity nominated by the principal of Relationships Australia (“the supervisor”);
(b)Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;
(c)The time that is to be spent by the children with the father shall commence at the time designated by the supervisor;
(d)The venue at which the time is to be spent by the children with the father shall be designated by the supervisor;
(e)The parties shall pay in equal shares any costs due to the supervisor;
(f)The mother shall cause the delivery of the children to, and the collection of the children from, the supervisor at the commencement and conclusion of the time spent by the children with the father;
(g)The mother and father shall comply with all reasonable requests and directions of the supervisor; and
(h)Leave is granted to the mother and father to provide to the supervisor a sealed copy of these orders.
Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:
(a)The mother’s residence; and
(b)Any school attended by either child.
The parties shall each take all reasonable steps to ensure that the children are able to communicate with the father in the following manner:
(a)By the father being able to send letters, cards, and/or gifts to the children on or about dates proximate to their birthdays, Father’s Day, and Christmas Day; and
(b)By the mother promptly sending to the father:
(i)Written acknowledgement of receipt of the father’s written communication, and
(ii)Any letters, cards, photographs, or other written communication that the children, or either of them, wish to be conveyed to the father.
For the purposes of implementation of Order 7 hereof, the parties shall, within 7 days hereof, notify the other in writing of the postal addresses to which they may direct the written communication.
The parties shall, within 7 days hereof, notify the other, and keep the other informed, of their respective mobile telephone numbers.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lennox & Lennox 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 NEWCASTLE

FILE NUMBER: NCC 1411 of 2013

Ms Lennox

Applicant

And

Mr Lennox

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These proceedings concern parenting orders that should be made for the two children of the applicant mother and respondent father pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
There were many factual conflicts in the evidence, but relatively few issues to be determined. The principal issues in the case engaged the two factors of primary importance used in the determination of how the children’s interests would be best served under s 60CC of the Act. The first concerned the state of the children’s relationships with the father and the extent to which they do or should derive benefit from such relationships (s 60CC(2)(a)). The second was the history of family violence between the parties and whether the children now require protection from harm they might suffer from exposure to such conduct (s 60CC(2)(b)).
On the recommendation of the Family Consultant, the mother and Independent Children’s Lawyer both contended for virtual elimination of the father from the children’s lives, save for some occasional written communication. Although the father railed against such an outcome, the evidence led inexorably to it.

History

The parties met in 1989 when they were teenagers and they began cohabitation in 1990. They married in 2005 and the two children were born in 2007 and 2010. The children are currently aged eight and five years respectively.
The parties separated in January 2013. There was some discrepancy in the evidence about the circumstances under which the separation occurred, but it was certainly the mother’s decision. Either she decided to leave the relationship to avert further family violence, as she told the Family Consultant,[1] or because she was so dissatisfied with the relationship that she actively sought out alternate partners, as the father alleged.[2] The mother vacated the former matrimonial home with the children, leaving the father in occupation of it.
[1] First Family Report, paras 44, 128
[2] Father’s first affidavit, paras 77-79
The parties’ bitterness over the disintegration and termination of their relationship crept into their parenting decisions. For a number of months they were unable to agree upon the circumstances under which the children could spend time with the father so, until May 2013, they did not see him at all.[3]
[3] Father’s first affidavit, para 128
The mother only agreed to restitution of the children’s relationships with the father if their visits with him were supervised, which supervision she provided herself for a time, but which supervision was later provided by staff at a contact centre.[4] In July 2013, interim parenting orders were made for the children to live with her and to spend supervised time with the father at a contact centre.[5] The father submitted to such supervision, but only to “kick start the process”, not because he considered it was warranted.[6]
[4] Mother’s first affidavit, paras 97-99; Father’s first affidavit, paras 129-133
[5] Orders made on 25 July 2013
[6] First Family Report, para 80
In August 2013, the parties affirmed their commitment to the interim parenting orders,[7] though the orders were slightly adjusted in December 2013 to designate use of alternate professional supervisors.[8]
[7] Order 7 made on 27 August 2013
[8] Orders made on 11 December 2013
The Family Consultant prepared the first Family Report in April 2014 and therein expressed the view that, for a variety of reasons, it was too soon to abandon the supervision of the children when in the father’s care.[9]
[9] First Family Report, para 143
In apparent response to that report, more interim orders were made in

May 2014,[10] with the parties’ consent, requiring the father to complete a domestic violence educational program, the father to undertake testing for alcohol misuse and illicit drug use, and the parties to participate in “family therapy”.[11] Compliance with some of those orders was perfunctory at best.
[10] Orders made on 29 May 2014
[11] Second Family Report, paras 7-9
In June 2015, the contact centre used by the parties declined to continue providing supervision services to the family.[12] After some negotiation, the parties agreed the children’s visits with the father could continue, subject to use of an independent supervisor.[13]
[12] Mother’s first affidavit, paras 100-101; Father’s first affidavit, para 138
[13] Mother’s first affidavit, paras 103-111
The proceedings could not be heard in October 2015 as planned and so the trial was re-listed for May 2016, though more interim orders were then made with the parties’ consent requiring use of the independent supervisor,[14] who has since been used successfully.[15]
[14] Orders made on 26 October 2015
[15] Mother’s second affidavit, para 32; Father’s second affidavit, paras 54-68

Proposals

The mother abandoned the orders proposed in the Further Amended Initiating Application she filed on 8 July 2015 and in the Case Outline Document she filed on 21 October 2015. Instead, she embraced and sought the same orders proposed by the Independent Children’s Lawyer.
The father pressed for the orders set out in the Amended Response he filed on

9 October 2015. In essence, he proposed that the parties have equal shared parental responsibility for the children, that the children live with the mother, and that the children spend increasing amounts of time with him. He envisaged a short introductory period under which the children would continue their supervised interaction with him, but with a relatively swift escalation of the regime so it culminates in the children living with him for “equal time” in fragmented fortnightly cycles. The father’s proposal was consistent with his earlier discussions with the Family Consultant, though he conceded to her he would be content with the children spending “substantial and significant time” rather than “equal time” with him.[16]
[16] First Family Report, paras 7, 19, 86
The Independent Children’s Lawyer did not reveal his proposal until the closure of the evidence, at which point he tendered a minute of orders.[17] In essence, the joint proposal of the Independent Children’s Lawyer and the mother was for the children to live with her and for her to have sole parental responsibility for them. They proposed that the children spend no time at all with the father, but in the alternative, that their future personal interaction with him be limited to not more than four brief visits each year under professional supervision. Their proposal was responsive to, and consistent with, the ultimate recommendation of the Family Consultant, though in truth, the mother’s discussions with the Family Consultant had always been along the same lines.[18] The Independent Children’s Lawyer and mother countenanced the children maintaining occasional written communication with the father.
[17] Exhibit ICL3
[18] First Family Report, para 60; Second Family Report, para 26

Evidence

The mother relied upon:
(a)Her affidavit filed on 10 September 2015;
(b)Her updating affidavit filed on 18 March 2016;
(c)
The affidavit of the paternal grandmother, Ms D, filed on

10 September 2015;
(d)The affidavit of her friend, Ms E, filed on 12 October 2015; and
(e)Two Notices to Admit Facts and Authenticity of Documents, filed respectively on 27 October 2015 and 18 March 2016.
The father relied upon:
(a)His two affidavits filed on 9 October 2015 and 22 March 2016; and
(b)The two affidavits of Mr F filed on 9 October 2015 and 2 May 2016.
The parties and Independent Children’s Lawyer also relied upon the two Family Reports compiled by the Family Consultant on 17 April 2014 and

28 May 2015.

Legal principles

Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).
When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests – primary considerations

Section 60CC(2)(a) – parental relationships

It was common ground the children’s relationships with the mother are important and valuable to them. In both April 2014 and May 2015 the Family Consultant found the children enjoyed loving relationships with the mother, to whom they were both securely attached.[19] The father proposed that the children continue to live with the mother for not less than equal time, so he plainly acknowledged the importance of the mother in the children’s lives.
[19] First Family Report, para 105; Second Family Report, para 61
The importance and value of the children’s relationships with the father was, however, the subject of considerable controversy. Despite the father’s belief the children’s relationships with him were just as meaningful as their relationships with the mother, the evidence tended to suggest otherwise, particularly in respect of the eldest child.
In April 2014, the Family Consultant found the eldest child reluctant to separate from the mother. She repeatedly told the Family Consultant she wanted to continue seeing the father, but only at the contact centre where she feels safe.[20] The Family Consultant was aware of the father’s complaint about the mother turning the children against him,[21] so she treated the eldest child’s statements with caution. Even so, she did not find the eldest child’s expressed wish to only see the father under supervision to be a contrivance because the child did not stridently and relentlessly criticise the father, as aligned children tend to do.[22] The father deposed at trial he was “particularly concerned that the children are being coached” by the mother to reject him,[23] confirming his earlier remarks to the Family Consultant, but his belief was contradicted by the objective evidence. The contact centre records actually revealed the mother’s willingness to facilitate the children’s relationships with the father, as evidenced by her arranging for the children to take Father’s Day gifts and photographs to their visits with the father at the contact centre.[24]
[20] First Family Report, paras 87, 89, 92, 94, 95, 97
[21] First Family Report, paras 32, 74
[22] First Family Report, para 93
[23] Father’s first affidavit, para 151
[24] Second Family Report, para 9(g)
When the Family Consultant observed the eldest child with the father she found her behaviour towards him to be ambivalent, since she vacillated between seeking his attention and rejecting his affectionate advances. The Family Consultant concluded such behaviour most probably indicated the existence of a “disorganised” psychological attachment between them, which state of affairs the Family Consultant considered demonstrated “serious shortcomings” in the father’s ability to provide “well-attuned and empathetic caretaking and for the child’s safety” and seriously threatened the child’s healthy psychological development.[25]
[25] First Family Report, paras 107-109, 113
By May 2015, the Family Consultant found no change in the eldest child’s relationship with the father.[26] Her behaviour in the company of the father was also the same as before.[27] She clearly articulated her wish to reduce the amount of time she was then spending with the father at the contact centre and to reduce the level of telephone communication with him. In cross-examination, the Family Consultant said the eldest child expressed her views strongly and they appeared to be genuinely held. She considered the child’s views were “a result of her direct experiences” with the father.
[26] Second Family Report, para 3
[27] Second Family Report, paras 9(h), 27, 50

The Family Consultant perused the contact centre records, about which she said two things: first, she found the reports of the eldest child’s behaviour with the father at the contact centre to be consistent with her own observations of the eldest child in the company of the father in both April 2014 and May 2015,[28] and secondly, she found the contact centre reports difficult to read because she empathised with the distress experienced by the eldest child during those supervised visits.[29]
[28] Second Family Report, paras 9(c), 9(d), 9(e)
[29] Second Family Report, para 64
The father believed his interaction with the eldest child was “terrific”, which the Family Consultant thought betrayed his lack of insight.[30] Although the eldest child could clearly articulate her wish to reduce her interaction with the father, she was unable to articulate why she felt that way.[31] She remained worried about her safety in his care,[32] but her uncertainty about her feelings was redolent of the ambivalent way she behaved towards him. The Family Consultant said the eldest child’s ambivalence was a clear indication of her “extreme level of discomfort and distress”, since her unruly behaviour with the father was unique to her personal interaction with him.[33]
[30] Second Family Report, paras 9(c), 9(d), 9(e)
[31] Second Family Report, para 56
[32] Second Family Report, para 57
[33] Second Family Report, paras 9(h), 63
I accept that, at least until May 2015, the eldest child’s behaviour with the father was not “terrific” as the father believed. Rather, it was most probably ambivalent, unpredictable, and unruly, which was quite uncharacteristic of her behaviour in other social situations, such as when with the mother or at school. The Family Consultant’s opinion about the eldest child having a “disorganised” psychological attachment with the father is the most probable explanation for the way in which the child uniquely acted when with him, though that begs the question of why the eldest child’s attachment to the father is “disorganised”.
The Family Consultant reported there could be several causes of “disorganised” attachment, including, inconsistent parenting due to intoxication, exposure to parental violence, and exposure to parents with “mental health issues such as depression”.[34] The first and third of those possible explanations had no firm foundation in the evidence adduced in these proceedings. Both parents used alcohol and illicit drugs in the past, but there was no evidence that either inebriated him or herself around the children or when caring for them. Nor was there any evidence about either party suffering from mental ill health, save for the Family Consultant’s revelation in cross-examination of her view that the father has narcissistic personality traits. There was, however, a surfeit of evidence about the children’s exposure to family violence and parental conflict.
[34] First Family Report, para 109
The mother thought the nature of the eldest child’s interaction with the father was a product of her past exposure to his violent conduct[35] and, in the absence of any other plausible explanation, her belief is probably correct as it aligns with the Family Consultant’s evidence. It certainly coincides with the evidence about the eldest child’s exposure to family violence, especially around the time of the parties’ final separation in January 2013, which left her with an enduring memory of acute parental conflict. Her anxiety about the father was probably then galvanised by her living away from him in a separate household with the mother and her sibling, the cessation of any interaction with him for several months, and her re-introduction to him under only supervised conditions.
[35] First Family Report, paras 32, 41, 54
In early December 2012, the parties argued in a car on the way home from a pre-school concert one evening. The father verbally abused the mother and both children were crying. The incident was serious enough that the mother and children left that evening to drive to Canberra to visit the maternal grandmother instead of waiting for the morning, when the trip was originally planned.[36] The father said in cross-examination the mother always intended to drive through the night to Canberra, but I do not accept that evidence.
[36] Mother’s first affidavit, para 193
In late December 2012, the children were exposed to a vociferous argument between the father, mother, and maternal grandmother. The incident culminated with the father shouting profanity in the maternal grandmother’s face and physically blocking her retreat from the room in which they stood with the children present.[37] I reject the father’s version of the incident, which was confined to him politely asking the maternal grandmother to leave the matrimonial home the next morning.[38] The father admitted in cross-examination that he called the maternal grandmother a “fucking cunt” and the youngest child was present. He denied the eldest child was present, but admitted in cross-examination he later asked the eldest child what she saw or heard, which inferentially suggests he considered she likely saw or heard some part of the incident. It was remarkably injudicious of the father to make such an inquiry of the eldest child, which was perhaps motivated by his hope he could enlist her as an ally to corroborate him against the mother and maternal grandmother. Either she saw or heard some part of the incident and the inquiry would only have emphasised the incident for her, or alternatively, she saw and heard nothing so the inquiry would only serve to inform her of the occurrence of more conflict. In either case, the father’s inquiry tended to implicate the eldest child in the conflict.
[37] Affidavit of Ms D paras 41-45; Mother’s first affidavit, paras 194-199; First Family Report, para 65
[38] Father’s first affidavit, para 125
Less than a week later, in the early hours of 3 January 2013, the father woke the mother to confront her about her alleged infidelity. The children were sleeping with the mother and they were woken by the commotion. The mother locked herself and the children in the bathroom to avoid the father, but she then decided to leave the former matrimonial home with them. The father refused to give her the car keys so, at about 4.30 am, the mother and children left the home on foot and walked directly to the police station. The mother and children then moved into emergency refuge accommodation, which marked the parties’ separation.[39] The father admitted in cross-examination that the eldest child witnessed his refusal to surrender the car keys to the mother and he told her she did not need to leave with the mother if she did not want to, which obviously placed her in an invidious position of conflicted loyalty.
[39] Mother’s first affidavit, paras 201-202; First Family Report, para 3
The eldest child’s first day of school was in late January 2013 and the father decided he would attend to see her. The parties’ emotions were still raw and the father had not seen the children since the parties’ separation several weeks before. The father admitted in cross-examination that he decided to return to the school later that afternoon to collect the eldest child and take her home with him, even though the mother and eldest child knew nothing of his plans. In effect, on advice from his then solicitor, he intended to abduct the eldest child because there were no parenting orders in place and he still shared parental responsibility for her. The mother was present and an argument ensued. The eldest child was clasped and pulled in opposite directions by both parties until the father desisted and departed the school. In cross-examination the father conceded that, with the benefit of hindsight, the incident would have been emotionally disturbing to the eldest child. It is a great pity he did not have the insight to realise that when he devised his plan to take the child. In any event, unsurprisingly, the eldest child’s school records reveal she later told the school counsellor she was scared the father would take her from the school, which fear was causing her stress and anxiety.[40]
[40] First Family Report, para 10; Exhibit F1
That synopsis of events over a period of less than two months around the time of the parties’ separation demonstrates why the eldest child had reason to develop anxiety about the father. If she was exposed to the level of family violence the mother alleged, from the time of her birth in 2007 until the parties’ separation in January 2013, it is understandable why she would be guarded about the father and her relationship with him is problematic.
The youngest child’s relationship with the father is different to that between the eldest child and the father. He was only very young when the parties separated and was not exposed to as much parental conflict as the eldest child. In

April 2014, the Family Consultant considered he had a positive relationship with the father[41] and, in May 2015, he told the Family Consultant he likes seeing the father because “he is fun and buys us presents”.[42] The contact centre records were replete with reports of the father giving the children an abundance of treats at the contact centre visits, despite him knowing the mother opposed it.[43] There is no reasonable basis to conclude the father attempts to entreat the children’s affection with gifts, though the youngest child’s comments are suggestive of superficiality in his relationship with the father, unlike his deep emotional bond with the mother.
[41] First Family Report, para 116
[42] Second Family Report, para 53
[43] Second Family Report, para 9(f)
In May 2015, the Family Consultant reached conclusions to the effect that the children derive little or no benefit from their relationships with the father and, as a consequence, their interests would be best served by the father playing only a marginal role in their lives at most.
The Family Consultant stated her conclusions thus:[44]
…It would appear that no solution has been found to deal with the dysfunctional relationship between father and [eldest child] and that, for [the eldest child], the protracted requirement for her to spend time with the father may well be akin to regularly reliving the trauma and anxiety she incurred through experiencing family violence.
The Family Consultant can see no advantage to [the eldest child] in continuing with the current regime of supervised time and there are also significant disadvantages to [the youngest child] in that at 4 years of age he is already starting to question why supervision is necessary.
Over the past 19 months [the youngest child] has started to develop a clear impression that the father is a person who is fun to be with and who provides a never ending supply of food treats and toys. There is a danger that [the youngest child] will tend to idealise the father and to have unrealistic expectations of him that will not match up to reality should the requirement for supervision be suspended.
[44] Second Family Report, paras 62, 65, 66
However, by the time of trial in May 2016, the complexion of the evidence had changed to some extent. The eldest child’s interaction with the father had settled somewhat since the Family Consultant’s last intervention in May 2015. The mother said in cross-examination that, since October 2015, when the children’s visits started to be supervised by an independent supervisor instead of staff at the contact centre, there has been noticeable improvement in the eldest child’s reactions before, during, and following such visits. The mother also said in cross-examination the same could be said for the youngest child. In respect of the independent supervisor, the mother said: the supervised visits were going well, she was satisfied with the independent supervisor, and both children seemed satisfied with the independent supervisor. Such oral evidence was consistent with the evidence adduced by the father.[45]
[45] Father’s second affidavit, paras 54-68
The Family Consultant was informed of that evidence at the commencement of her cross-examination, but she said it did not cause her to amend her opinions. She then went on to elaborate her views more forcefully throughout her cross-examination.
She considered the father possessed “very strong narcissistic personality traits” which both influenced his behaviour and made its modification difficult. The eldest child’s psychological attachment to him was damaged, which would not now change, and since he was unable to modify the way in which he interacted with the children, there was no real prospect of improvement. The Family Consultant believed the eldest child would continue to experience real distress trying to manage her relationship with the father and forcing her to do so would be detrimental to her psychological health. She exemplified the point by referring to records of supervised visits between them which disclosed the father interrogating the children, undermining the mother’s authority, and displaying irritation with them over quite minor matters.
Although the dynamic was more pronounced between the father and eldest child, the Family Consultant said in cross-examination the youngest child would look to his older sibling for cues about how to react to the father and, eventually, both children would find themselves in a similar predicament. The Family Consultant earlier reported the father may not be able to maintain his relationship with the youngest child without a supervisor because of his impaired parenting capacity and lack of insight.[46]
[46] Second Family Report, para 66
The father asserted he had completed a retinue of educational courses and counselling which should give the mother, Independent Children’s Lawyer, Family Consultant, and the Court confidence in his reformed parental attitude and capacity. He deposed the courses and counselling he completed were about his relationship with the paternal grandmother, the breakdown of the parties’ marriage, and his perceived loss of the children.[47] The courses and counselling were confined to:
(a)A Positive Parenting Program in August 2013;[48]
(b)A Relapse and Prevention drug and alcohol program in June 2014;[49]
(c)Four sessions at H Care between 2014 and 2015;[50]
(d)An anger management program conducted by Interrelate over six weeks in August/September 2015;[51]
(e)Three sessions at G Care between September and November 2015, to assess his eligibility for entry into a program;[52] and
(f)Psychological counselling between October 2015 and February 2016.[53]
[47] Father’s first affidavit, paras 59-61
[48] Father’s first affidavit, para 62
[49] Father’s first affidavit, para 63; Father’s second affidavit, para 10
[50] Father’s first affidavit, para 61; Father’s second affidavit, paras 25-26
[51] Father’s first affidavit, para 64; Father’s second affidavit, para 24
[52] Father’s second affidavit, paras 20-23, Annexure SL-03
[53] Father’s first affidavit, para 179; Father’s second affidavit, paras 28-32
The father deposed the courses and counselling gave him “different insight” and caused him to change his lifestyle,[54] though that was not on display during the trial. As the Family Consultant tritely answered him in cross-examination, the mere completion of courses and counselling is not of itself proof of change. The evidence he gave, the questions he asked, and the submissions he made during the trial demonstrated no tangible change in his attitude or insight. His conduct of the trial only emphasised the probable correctness of the Family Consultant’s opinion about the improbability of his parental reformation.
[54] Father’s first affidavit, para 164
The father expressly drew attention to the Family Consultant’s earlier opinion that:[55]
While the father clearly has some strengths as a parent and has something of value to offer his children in that respect, he will need to address the identified issues in order to ensure that he is able to play an important role in his children’s lives in the future.
[55] First Family Report, paras 142-143
The Family Consultant said she offered that opinion nearly two years ago for therapeutic purposes in the hope he could and would act on her advice to improve his parenting performance but, in her view, he had not because he could not.
For those reasons, the Family Consultant strongly adhered to her recommendation made in May 2015 for the children to spend no time at all with the father, or alternatively, visit him only a few times each year under professional supervision.[56]
[56] Second Family Report, para 67
The Family Consultant couched that recommendation in conditional terms, dependent upon whether the Court found the father posed an unacceptable risk of harm to the children, which she believed existed for several reasons: the father’s “alcohol and drug issues”,[57] the “family violence issues”,[58] and the troubled relationship between the father and eldest child, which she comprehensively elaborated during cross-examination.
[57] First Family Report, para 140
[58] First Family Report, para 140
The evidence does not fairly permit any finding that the father now has “drug and alcohol issues”, for reasons discussed under s 60CC(3) of the Act.
Nor does the evidence rationally permit any finding that there is any current “family violence”, or even an unacceptable risk of it, for reasons discussed under s 60CC(2)(b) of the Act.
However, the nature of the eldest child’s relationship with the father means she derives little, if any, benefit from it. In fact, maintenance of the relationship is liable to cause her psychological harm. The same may be said of the relationship between the youngest child and the father, though the problem is much less acute for him presently. Those considerations are of primary importance to the outcome of the proceedings.
An attempt was made much earlier in these proceedings to remedy the impasse between the children and the father. Interim orders were made in May 2014 requiring the parties to submit themselves and the children to family therapy with a psychologist but, for reasons largely beyond the parties’ control, that did not eventuate. When those orders were made, the eldest child was already receiving individual psychological therapy at H Care. There was no dispute about her need for counselling because the father told the school principal she needed it at some point during 2013.[59] H Care had a policy against the provision of family therapy and the parties seemingly accepted that the eldest child’s established therapeutic relationship should not be disturbed by changing her therapist to one who would be amenable to provide family therapy.[60] Even now, the eldest child still attends at H Care for therapy.[61] Very recently, the father tried to secure the consent of the mother and Independent Children’s Lawyer to implement the family therapy ordered two years ago, by use of his own current psychologist,[62] but it was too little too late. These proceedings now need determination on the evidence as it stands, not on prognostications about how the situation could be at some ill-defined point in the future if all goes well.

Section 60CC(2)(b) – risks of harm

[59] First Family Report, para 8

[60] Second Family Report, paras 9(a), 9(b), 15, 16; Father’s second aff, para 27

[61] Mother’s second affidavit, para 24

[62] Exhibit ICL2

Family violence

The past occurrence of and the risk of further family violence was the other significant issue in these proceedings. The factual history elicited by the parties about their marital conflict was largely irreconcilable, but pivotal to their quite different views about the desirable degree of the father’s future involvement in the children’s lives. The mother contended the father’s past conduct and propensity rendered him an unfit parent because of the risk of harm he thereby posed to the children, justifying minimisation of the father’s interaction with the children. On the other hand, the father either perceived or represented himself as a gentle person and devoted parent whose relationships with the children were deliberately undermined by the mother, which trend could only be counteracted by the expansion of his interaction with the children.

The allegations of family violence made by the mother against the father, both to the Family Consultant and in evidence, were extensive and serious. To the extent that the parties’ versions of the past hostile events were discrepant, the evidence of the mother was preferable. She was a credible witness and her evidence entailed large amounts of peripheral detail about violent incidents which was more consistent with vivid recollections than fabrication. In some respects she was corroborated by independent records,[63] and just as significantly, the father’s behaviour has been so aggressive in the past that even his own relatives have distanced themselves from him.[64]
[63] First Family Report, para 123
[64] Mother’s first affidavit, paras 206-209
The mother deposed her first experience of physical abuse by the father occurred upon their commencement of cohabitation in September 1990. On that occasion he shouted at her, threw objects at her, and destroyed property.[65]
[65] Mother’s first affidavit, para 153; Exhibit M2
Thereafter, there were so many violent incidents (including occasions on which she was physically injured) she could not catalogue them,[66] but she did adduce relatively precise evidence about many incidents she could individually recollect.
[66] Mother’s first affidavit, paras 154-155
At their home in Canberra, the father pushed the mother, held her to a wall, punched her, kicked her, and punched holes in a door. The mother escaped from the house and wandered the streets for hours until he calmed down. Both of the mother’s eyes were blackened as a result of the assault.[67]
[67] Mother’s affidavit, para 156
After the parties moved to the Central Coast of NSW, there were regular incidents of violence between 1999 and 2009.[68] Neighbours summoned the police on several occasions and on one of those occasions the father was taken into custody, though no criminal charges were ever brought against either party for their conduct towards one another.[69] The father’s bald denial of any police involvement at all in their lives is rejected,[70] though in cross-examination he purported to say the police involvement on that occasion related to his conflict with the neighbours, not with the mother.
[68] Mother’s first affidavit, paras 157, 158, 159
[69] Mother’s first affidavit, paras 168-169
[70] Father’s first affidavit, para 106
On one occasion the father grabbed the mother by the hair, pulled her out of bed, then kicked her, punched her, shouted at her, and told her he had to kill her.[71] On other occasions the father poured beer over the mother, spat at her, urinated on her, and punched her without warning.[72]
[71] Mother’s first affidavit, para 157
[72] Mother’s first affidavit, paras 164, 171
The father also destroyed and damaged the mother’s property and the walls and cabinetry of the homes in which they lived.[73] On one occasion, the father shook the bed on which the mother was lying so violently that the timber frame disintegrated and the mattress fell to the floor.[74]
[73] Mother’s first affidavit, para 161
[74] Mother’s first affidavit, para 171
While the parties were staying in an apartment in the UK in late 2002, the father once pulled the mother’s hair, punched and hit her on her limbs, and pushed her into a dressing table, which cut and bruised her face.[75]
[75] Mother’s first affidavit, para 167
In late 2008 the parties travelled to Asia with the eldest child, who was then an infant. On the fourth night of the trip the father returned to the hotel room and attacked the mother. He pushed her, spat at her, and then punched her in the head. The mother collected the child and ran into the corridor and sought help from a hotel staff member, who then found the mother and child a separate room.[76] On another night during the same trip, the father started to punch the mother and push her off the bed in which she was sleeping with the eldest child. The mother was able to escape with the child, running barefoot into the dark night to spend the rest of the night on the beach.[77]
[76] Mother’s first affidavit, para 173
[77] Mother’s first affidavit, para 174
In February 2009 the parties argued and the father tossed something at the mother which hit her in the face and blackened her eye.[78] The mother said it was a water bottle, but the father conceded in cross-examination it was a cordless telephone, though he asserted he did not intend it to cause her injury.
[78] Mother’s first affidavit, para 176
In April 2009 the most serious incident of all occurred. The parties gave wildly different versions of the event, though it is common ground the father’s foot connected with the mother’s stomach with such force that it caused her duodenum to rupture. The injury was life-threatening, for which the mother required emergency surgery and post-operative hospital care for three weeks.
The mother alleged the father deliberately stomped upon her stomach while she was lying on a mattress on the floor,[79] but the father alleged the injury occurred when he accidentally kicked her while they were playfully sparring using martial arts manoeuvres.[80] The mother conceded she told the hospital staff she sustained the injury accidentally while the parties were sparring, which she now asserts was a lie, because she was motivated to avoid implicating the father in criminal conduct.[81] The mother admitted in cross-examination that she lied of her own accord and she further asserted that when the father attended the hospital and asked her what story she gave he simply adopted and thereafter adhered to the same story. The mother often lied to her family about the family violence that occurred between the parties,[82] for which she may or may not have had good reason, so her deceit about such a serious incident was not so surprising. But, the fact she undoubtedly lied does not mean every word she now utters about that incident, or more generally, is incapable of acceptance.
[79] Mother’s first affidavit, paras 47, 177-180
[80] Father’s first affidavit, para 43
[81] Mother’s first affidavit, paras 181-182
[82] First Family Report, para 66
Significantly, while the mother was still hospitalised, both the maternal grandmother and paternal grandmother independently told hospital staff of their “high level of concern” about the father’s abusive treatment of the mother.[83]
[83] Exhibits M5, M6
The story which the parties gave to the hospital at the time and to which the father now adheres is probably too incredible to be true. The father deposed the parties were members of a martial arts club and were practising their skills at the time, but that was quite unlikely given the father admitted their membership of the club expired years before and so they had no need to be practising martial arts at all. The manner in which he alleged his foot collided with the mother’s stomach could hardly, if at all, explain the degree of force required to cause the physiological injury the mother suffered. Put simply, his version was inconsistent with the damage done.
Shortly after the mother was admitted to hospital, the father telephoned the mother’s friend Ms E. He was weeping, emotional and worried about the mother’s condition and, significantly, during the conversation he inferentially admitted his malicious infliction of the mother’s injuries in the manner she now alleges. The father denied Ms E’s version of their conversation, but I accept it to be correct as she was a convincing witness. Relevantly, their conversation was in the following terms:[84]
Father:I did this. I did this…I kicked [the mother’s] stomach. I kicked it hard with my shoe.
Witness: What actually happened?
Father:I did this to her. I jumped on her. I can’t control myself. What am I going to do without her?
(emphasis added)
[84] Affidavit of Ms E, para 8
The hospital staff did not believe the parties’ story at the time[85] and reported the incident to the Department of Family and Community Services (“the Department”) for investigation, which the father conceded. The Department investigated and, by reason of worry about the safety of the eldest child in the parties’ household (she then being their only child), required the parties to submit to the Department’s supervision over the next two years.[86]
[85] Exhibit M5
[86] Mother’s first affidavit, para 187; First Family Report, paras 27, 33, 135; Exhibits M4, M8
Several weeks after the incident, the father conferred with the Department. Although he maintained the incident was an accident, he also said “the incident was like all this frustration just coming out”,[87] which statement was hardly consistent with an accident and more like an admission.
[87] Exhibit M11
The father’s behaviour moderated during the period that the family was monitored by the Department,[88] though he still punched and insulted the mother in a car on one occasion in January 2010.[89]
[88] Mother’s first affidavit, paras 190, 192
[89] Mother’s first affidavit, para 189
From around May 2012, the father’s behaviour towards the mother again began to deteriorate.[90] During 2012 the father’s verbal abuse of the mother increased and the eldest child told the mother of her fear of the father when she heard him yell.[91] In October 2012, the father shouted and swore loudly at the mother and banged his fists on the dashboard of the car in which they were travelling with the children.[92] The hostile confrontations that occurred between the parties in late 2012, culminating in their final separation in January 2013, were summarised earlier in these reasons.
[90] Mother’s first affidavit, para 192
[91] Mother’s first affidavit, para 142
[92] Mother’s first affidavit, para 141
When the mother took the children and separated from the father, the police issued an apprehended violence order for her protection from him, though he successfully defended the application and the order was discharged several months later.[93] If the father thought the discharge of the interim apprehended violence order necessarily meant there was no proof of his violence or harassment, as he seemed to imply, then he was mistaken. The evidence adduced in these proceedings did not establish that any findings of fact were made by the State court in the proceedings before it and, even if that did occur, this Court is not bound by the findings of that court (see Schorel & Schorel (1990) FLC 92-144 at 78,000-78,005; Miller & Harrington (2008) FLC 93-383 at [100]).
[93] First Family Report, paras 11, 14; Father’s first affidavit, paras 100, 105
Until his cross-examination at final trial the father repeatedly denied his commission of any violent conduct towards the mother. He did so in an affidavit he filed early in these proceedings[94] and in discussion with the Family Consultant.[95] Not only did the father deny his perpetration of family violence, he repeatedly alleged he was the victim of family violence committed by the mother, which assertion he reported to the eldest child’s school principal[96] and repeated in an affidavit he filed early in these proceedings.[97] He also alleged the mother “manipulated [him] financially and emotionally”,[98] for which he said he needed counselling as recently as February 2016.[99]
[94] First Family Report, para 19
[95] First Family Report, paras 26, 78; Second Family Report, para 29
[96] First Family Report, para 8
[97] First Family Report, para 19
[98] Father’s first affidavit, para 114
[99] Father’s second affidavit, para 32
On occasions, the mother undoubtedly retaliated against the father’s treatment of her. She once threw an alarm clock at the father, which gashed his head.[100] She may even have done so on other occasions, as the father alleged,[101] though such violent reactions by her do not recast the complexion of their relationship. The whole of the evidence comfortably proved the father was an oppressively violent domestic partner.
[100] Mother’s first aff, para 165; Father’s first aff, para 13; First Family Report, paras 26, 66
[101] Father’s first affidavit, paras 9, 17, 42
At the commencement of his cross-examination, the father surprisingly made some admissions about his past family violence, though they were only faint and not genuine expressions of remorse. He said:
I’ve done different courses and I now know there was a form of domestic violence [in our relationship]
When he was then asked to nominate the “form of domestic violence” to which he was referring, he nominated only:
Me taking the car keys [from the mother at the time of final separation]
and:
Some pushing and shoving whenever I tried to get out of the door and she was blocking me (which he said happened infrequently over more than 20 years)
Those admissions only compounded the father’s trouble for several reasons.
First, the violence he perpetrated upon the mother was much more than merely a “form of domestic violence”, by which statement he was implying his past conduct was not particularly serious, whereas in fact he committed many very serious physical assaults on the mother over many years.
Secondly, he failed to admit many of the most serious assaults when he nominated the past acts of family violence of which he was guilty. The life-threatening assault of the mother in April 2009 was the most dramatic example.
Thirdly, the domestic violence “courses” he supposedly completed were in fact only one course with Interrelate, which was conducted over a period of only six weeks in August/September 2015.[102] Well over a year before, in May 2014, the father was ordered (with his consent) to enrol in and complete a course designed to educate perpetrators of family violence.[103] The father told the Family Consultant, and gave evidence to the effect, that he was not permitted to participate in such a course at either G Care or Relationships Australia because, in each instance, he was told:[104]
…you are not violent enough for our course
You are being set up for failure
…[you are a] mismatch to the program
…[the mother] would be better suited to the course
[102] Father’s first affidavit, para 64; Father’s second affidavit, para 24
[103] Second Family Report, paras 7, 32
[104] Father’s second affidavit, paras 11-23; Second Family Report, para 7
Fourthly, the single educational course he did complete with Interrelate did not educate him sufficiently well for him to truly accept responsibility for his reprehensible behaviour, because his glib concessions in cross-examination were most likely designed to only deflect criticism. If, after completing that program, he still believes in the truth of the reasons given for his alleged ineligibility to complete the other educational courses at G Care and Relationships Australia (as his evidence implied he did) then he really learned very little at all.
Fifthly, even though the father held out in cross-examination he was educated to a new understanding about family violence by September 2015, he said nothing about it in his affidavit filed in September 2015. He certainly made no admissions in the affidavit to correct his earlier false denials of family violence. Far from a clear expression of his freshly acquired insight and contrition for his behaviour, he benignly said in his affidavit:[105]
The program helped me understand that verbal abuse can be unhealthy in a relationship. It gave me an insight into the inner self, a greater realisation, and helped me understand what influences me from within, and how to deal with it. After this course I had a greater awareness of my emotions and would have done things differently. I would have communicated and understood [the mother] better if I had done the course earlier.
[105] Father’s first affidavit, para 64
Sixthly, at least until as recently as February 2016, the father consulted with a therapist which he deposed he used for the express purpose of:[106]
…discuss[ing] ways to cope with the verbal abuse and manipulation that [he] was subjected to [by the mother] during [their] marriage.
which evidence implied his own exculpation and attribution of blame for past family violence to the mother. If that was genuinely the father’s belief when he compiled his affidavit only weeks ago, he does not really accept responsibility for his violent past.
[106] Father’s second affidavit, paras 28-32
The Family Consultant considered the father was responsible for coercive and controlling violence, if the mother’s evidence about the past family violence was accepted.[107] She considered the father was in denial about the seriousness of the problem and the extent to which it had affected the family,[108] which opinion was entirely consistent with his evidence at trial, both in-chief and in cross-examination.
[107] First Family Report, para 111-112 (p.27), 139, 141
[108] First Family Report, para 141
The findings about past family violence are not pointlessly made to validate one party’s perception of the past. The findings influence whether the presumption of equal shared parental responsibility applies (s 61DA(2)(b)) and inform what orders should be made in the children’s best interests (s 60CC). Relevantly for present purposes, proof that the father perpetrated family violence upon the mother in the past does not result in the imposition of a penalty which takes the form of his disqualification from further involvement in the children’s lives. Rather, although the Act requires consideration of the past (s 60CC(3)(j)), it primarily directs the Court’s attention to the future, mandating an inquiry about the need to protect the children from harm which would result from further exposure to such family violence (s 60CC(2)(b)).
In this case, the evidence of family violence stops at or about the time of the parties’ separation. The mother conceded in cross-examination there have been no incidents of violence between the parties since they separated well over three years ago. She said she felt harassed by the tone of some of the father’s correspondence for a period of about 18 months after separation, but that too is now just an historical fact. She gave no evidence of any coercion, control or fear as a consequence of her receipt of that correspondence, as fulfilment of the definition of “family violence” would require (s 4AB(1)).
The parties have had very little, if anything, to do with one another since their separation. Each of them intends that situation to continue. In the absence of them being in close personal proximity there is little, if any, chance of further family violence being committed by the father upon the mother. The prospect of the father perpetrating further family violence upon the mother cannot be categorically ruled out. It remains a risk, but it is a remote risk, not one that is unacceptably high.
It consequently follows that the risk of the children’s exposure to further family violence between the parties is also remote, provided any orders made by the Court do not require the parties to personally interact with one another over the children. The evidence does not demonstrate any need to protect the children from any psychological harm from exposure to family violence committed by the father.

Physical abuse

When asked in cross-examination to nominate the reasons she advocated for the indefinite retention of the children’s supervision when with the father, one of the reasons given by the mother was her fear the father would be physically abusive to the children. Having regard to the nature of her past treatment by the father, it was not unnatural for her to feel that way about him.
However, while the mother may honestly hold such fear, it was not objectively borne out by the evidence. The mother admitted in cross-examination the father had never physically abused the children in the past and, in early February 2013 (shortly after separation), the mother told the eldest child’s school counsellor she “doesn’t have concerns re [the father] hurting the kids”.[109] If the mother had no concern about the children’s physical safety in the care of the father shortly after separation and there is no evidence of the occurrence of any incident compromising their physical safety since then, there is no rational basis for her currently expressed fear of physical harm.
[109] Exhibit F1

The Family Consultant said, and the mother submitted, that not much should be read into her admission shortly after separation that the father would not harm the children, but I do not accept that evidence or submission. The mother left the marriage precisely because she was fed up with the father’s violent and oppressive treatment of her so, at around the time of their separation, she was acutely conscious of his proclivities. It is quite unlikely she would have understated his violent propensity to the school principal when, contemporaneously, she made several statements to the police comprehensively explaining his past violent conduct for the purpose of prosecuting the then pending apprehended violence proceedings against him. The evidence does not demonstrate any need to protect the children from any physical or psychological harm from subjection or exposure to physical abuse by the father.

Best interests – additional considerations

Mention was earlier made of the evidence not supporting any finding that the father’s parenting capacity is impinged by illicit drug use or alcohol misuse. Both parties admitted past use of alcohol and illicit drugs,[110] but the father told the Family Consultant in April 2014 he no longer used illicit drugs, did not drink to excess, and was willing to undertake tests to prove it.[111] Orders were made in May 2014 for such tests to be done.[112] When the father consulted again with the Family Consultant in May 2015, he confirmed his participation in the tests, which were all negative or normal.[113] He furnished her with the test results for the period between May 2014 and April 2015.[114] More of his negative and normal test results were tendered at trial, covering the period between July 2015 and September 2015.[115] Copies of all of those tests were annexed to the affidavit he filed in September 2015.[116]
[110] First Family Report, para b (p.2)
[111] First Family Report, para 79
[112] Second Family Report, para 8
[113] Second Family Report, paras 30-31
[114] Second Family Report, Appendix A
[115] Exhibit ICL1
[116] Father’s first affidavit, paras 44-48
The father deposed he has not used illicit drugs or synthetic cannabis since August 2013 and that he only consumes alcohol in moderation.[117] He adhered to that evidence in cross-examination and he was not contradicted. In the face of such evidence, there was no rational basis to conclude there was any real prospect he would intoxicate himself at or about times he might have the children in his care.
[117] Father’s first affidavit, paras 44, 56-57
Although there was no dispute directed to the father’s capacity to cater to the children’s physical needs (as distinct from their emotional needs), the evidence tended to suggest his home was not an ideal place to accommodate the children even if their unsupervised interaction was contemplated. The father lives with another person, whose children live with him in the household on weekly rotations. The father also regularly accommodates foreign students in spare bedrooms, for which service he is paid. There would be physical space for the children to stay at his home, but the environment would not likely be the restful and private sanctuary needed in the event of an attempt to revive the children’s relationships with the father.
Unfortunately, the father is unable to resort to support or help from his own family because he does not enjoy close relationships with them.[118] He would be dependent upon his friends, one of whom is his flatmate, who works full-time in Sydney.[119] The father is also interested in securing employment,[120] though he is currently unemployed,[121] and the evidence was silent about how he would manage the children at his home for substantial periods of time if he obtained new employment.
[118] Mother’s first affidavit, paras 206-209; Father’s first affidavit, paras 118-120
[119] Father’s first affidavit, paras 160, 172
[120] Father’s first affidavit, para 175; Second Family Report, para 37
[121] Father’s second affidavit, paras 2-3
Despite his past employment, the father failed to fulfil his obligation to financially support the children. He paid child support only sporadically and he is presently over $5,400 in arrears.[122]
[122] Mother’s first affidavit, paras 59, 71; Mother’s second affidavit, paras 38-39; Second Family Report, paras 22, 39
The Family Consultant reported in May 2014 that the mother did not appear “overtly fearful” of the father,[123] though the mother said in cross-examination she was fearful of the father. In submissions, the evidence was finessed to mean the mother was not fearful for herself, but was fearful for the children. The mother did not submit that any order for the expansion of the children’s visits with the father, or the dispensation of his supervision, would cause her such distress that her parenting capacity would be impinged, thereby militating against orders to that effect (see Marriage of Sedgley (1995) 19 Fam LR 363 at 371; Re Andrew (1996) 20 Fam LR 538 at 544-546). However, in answer to a question posed by the Independent Children’s Lawyer, the Family Consultant opined the mother’s parenting capacity would be impinged by parenting orders which had the effect of modifying the existing regime in either of those ways. She believed the mother would be stressed by the change and hyper-vigilant about the children’s safety. She did not believe the personal counselling the mother still, even now, receives would alleviate her alarm.
[123] First Family Report, para 125
Such repercussions for the mother would not, of themselves, be a bulwark against the expansion of the regime or the relaxation of the conditions under which the children spend time with the father, particularly in circumstances where the mother did not give direct evidence about how the children would then be deleteriously affected in her care and she will continue to have help and strong support from her own family and friends.[124]
[124] Mother’s first affidavit, paras 78-79; Mother’s second affidavit, paras 5-7
There must be a proper evidentiary basis for finding that the mother’s parenting capacity would be impinged so as to desist from making the orders she feared (see Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]) and the bare opinion of the Family Consultant would not be a sufficiently strong foundation for that purpose. Nonetheless, the mother’s disinclination to give evidence to that effect is probably a demonstration of the stoicism with which she has traditionally dealt with the father and an indication of how she is disinclined to take unfair advantage of the father.
While the children would not be disadvantaged by any appreciable diminution in the mother’s parenting capacity if orders required them to spend more time with the father, perhaps without supervision, orders to that effect would certainly be detrimental to the mother’s emotional stability. That in itself is a consideration worthy of weight in the discretionary process.

Conclusions and orders

The presumption of equal shared parental responsibility does not apply because of the proven family violence between the parties (s 61DA(2)(b)).
The father wanted the parties to nonetheless have equal shared parental responsibility for the children, but the evidence fell well short of demonstrating that an order to that effect would be of benefit to the children or the mother. The parenting relationship between the parties is far too fractured to ever be materially improved.
The parties have been able to communicate civilly through text messages,[125] though such communication is generally confined to confirmation of arrangements for the children. Nothing in the evidence tended to suggest the parties were capable of consultation and compromise in relation to significant issues in the children’s lives, as would be required of them if equal shared parental responsibility was ordered (s 65DAC). The mother’s distrust of the father would not have been ameliorated by his allegation that she deliberately tries to sabotage his relationships with the children, his attribution of blame to her for the past family violence, and his denial of maliciously stomping on her and causing her a life-threatening injury. As a simple example of the parties’ tendency to squabble, they had to resort to correspondence through their lawyers about the father’s attendance at the youngest child’s sporting fixtures and they still failed to agree.[126] They even continued to debate that issue in the evidence at trial.
[125] Father’s first affidavit, para 146; Father’s second affidavit, paras 45-46
[126] Exhibit M10
The only feasible alternative is to allocate parental responsibility for the children exclusively to one party and, since the children should continue to live with the mother, she should have it.
In the absence of an order for equal shared parental responsibility, s 65DAA of the Act is not engaged. Nonetheless, the father still sought orders for the children to spend “substantial and significant time” with him, graduating to “equal time” over the next 18 months.
The damaged psychological attachment between the eldest child and the father precludes her from spending any more than brief amounts of time in his company and, even then, she needs the reassurance of professional supervision.
While the youngest child’s attachment to the father does not appear damaged in the same way, he was only an infant at the time of separation and has only ever really been in the company of the father when simultaneously in the care of the mother or when professionally supervised. He seemingly has a superficial and idealised view of the father, whom he sees only periodically and from whom he receives gifts and treats. I accept, as the Family Consultant said, the youngest child will increasingly replicate the eldest child’s behaviour towards the father and, eventually, he will probably derive marginal benefit from his relationship with the father.
The expressed preference of the mother, Independent Children’s Lawyer, and Family Consultant was for all personal interaction between the children and father to be eliminated, but such a proposal is rejected. The Family Consultant conceded in cross-examination that the children still need to know the father’s paternal place in their lives and that he still loves them. Written communication can achieve those objectives in a limited way, but some form of personal interaction is essential to keep the paternal flame flickering and to avoid the father’s consignment to merely a memory and the unidentified author of occasional cards and letters.
The Family Consultant opined that any interaction between the eldest child and the father would be emotionally damaging to her, but she could probably satisfactorily withstand two supervised visits with him each year, which would be a substantial reduction in frequency of the current regime. The youngest child could presently endure more than two annual visits with the father but, as the Family Consultant said, the children should not be treated differentially and so two annual supervised visits is a compromise between the needs and desires of both children. The orders therefore provide for the children to visit the father twice each year for a couple of hours under professional supervision.
To prevent frustration of the orders, the father is restrained from attending at or near to the mother’s home (if he discovers her address) and the children’s schools.
The orders also provide for periodic written communication between the children and the father. Such communication was recommended by the Family Consultant and mutually proposed by the mother and Independent Children’s Lawyer.
No provision is made for telephone communication between the children and the father. The mother admitted in cross-examination she considered there was a place for regular telephone communication between him and the children, which was much the same as she told the Family Consultant in April 2014.[127] Nonetheless, both parties have found compliance with the interim orders for telephone communication to be troublesome and stressful. The mother reported as much to the Family Consultant in May 2015[128] and the father also deposed to his disgruntlement.[129] Even the eldest child complained to the Family Consultant about talking to the father over the telephone.[130] Because it has been so difficult, no orders are made for it, though the mother will be able to exercise her parental responsibility for the children to facilitate their telephone communication with the father if she considered it appropriate, as the Independent Children’s Lawyer envisaged.[131]
[127] First Family Report, para 36
[128] Second Family Report, paras 26, 34
[129] Father’s first affidavit, paras 147-152; Father’s second affidavit, paras 47-51
[130] Second Family Report, para 56
[131] Exhibit ICL3, Order 3
The orders set out at the commencement of these reasons are most likely to serve the children’s best interests.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 19 May 2016.

Associate:

Date: 19 May 2016

[2016] FamCA 367

19 May 2016

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