Lepp and Grantham

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEPP & GRANTHAM

[2014] FCCA 2366

Catchwords:
FAMILY LAW – Entrenched parenting dispute – father seeking additional and accelerated time with children – mother and Independent Children’s Lawyer opposing – father’s appalling insults to and denigration of mother – father totally lacking in insight – total absence of future co-operation between parents – orders made as sought by Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CC

Goode v Goode [2006] FamCA 1346
Rice v Asplund (1979) FLC 90 -275

Applicant:

MS LEPP

Respondent:

MR GRANTHAM

File Number:

MLC 6831 of 2008

Judgment of:

Judge Burchardt

Hearing dates:

21 and 22 August 2014

Date of Last Submission:

22 August 2014

Delivered at:

Melbourne

Delivered on:

24 October 2014

REPRESENTATION

Counsel for the Applicant:

Mr Cooper

Solicitors for the Applicant:

Randles Cooper & Co Pty Ltd

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Mr Tesoriero

Solicitors for the Independent Children’s Lawyer:

T J Mulvany & Co

ORDERS

That all previous Orders made in these proceedings and undertakings furnished to the Court in these proceedings be discharged.
The Mother have sole parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2006 (“the children”).
The Mother shall keep the Father advised by text message in the event that any of the children become ill and require medical attention whilst in her care.
The Mother authorise the children’s school to provide to the Father, at his expense (if any), with all printed information, newsletters, or reports concerning the children’s social and academic progress and photographs.
The children live with the Mother.
Subject to there being no repetition of the conduct complained of by the mother, subsequently admitted by the father, which ceased in March 2014, and further subject to the father refraining for a period of not less than twelve hours before any spend time occasion upon which he sees either or both of the children and during all such periods when he sees either or both of the children from the consumption of illicit substances, the children spend time and communicate with the Father as follows:
(i)For the period commencing Sunday 2 November 2014 and ceasing Sunday 18 January 2015, each alternate Sunday from 10am until 5.00pm with such time to be supervised by the Paternal Grandmother.
(ii)Commencing Friday 23 January 2015 each alternate weekend from 5.00pm Friday until 5.00pm Saturday provided always that all overnight time with the children shall occur at the home of the Paternal Grandmother who shall be in substantial attendance during the Saturday evening.
(iii)Commencing August 2015, each alternate weekend from 5.00pm Friday until 5.00pm Saturday and the previous requirement of the time occurring at the home of the Paternal Grandmother shall be discharged.
(iv)On celebratory occasions including the children’s birthdays, the Respondent’s birthday, and Father’s Day, and if such occasions occur on a school day the time shall be for two hours after school in the week of the celebratory occasion on a day and time to be agreed between the parties and if a weekend for three hours on such day or days to be agreed upon by the parties and in the event that Mother’s Day occurs on a weekend wherein the father would customarily spend time with the children in the absence of agreement time on that weekend shall be suspended and be substituted at the discretion of the father, on the weekend preceding or following such Mother’s Day occurrence.
(v)On Christmas Day from 11.00am to 4.00pm.
(vi)During term school holidays from Wednesday 4:00pm until Thursday 4:00pm in the first week.
(vii)At such other times as may be agreed between the parties.
For a period of twelve months from the date of these Orders, the Mother shall not more than once per month, forward by text message or e-mail, a request that within 48 hours of such text message or e-mail that the Father shall attend upon an appropriate Centre or his medical practitioner for the purposes of providing a supervised urine screen and within 24 hours of the Father receiving the results of such screen, the Father shall provide to the Mother by e-mail or pre-paid post a copy of such results.
In the event that the results on any individual occasion indicate the presence of illicit substances and the mother objectively considers that either or both of the children will be at risk on the next spend-time occasion the Mother shall be at liberty on that one occasion to suspend time.
For the purposes of these Orders, changeover shall occur at McDonald’s Family Restaurant, (omitted), or on notification by the mother from outside the residence of the maternal aunt at (omitted).
That unless otherwise agreed by the mother by prior text message to the father, the father appoint an agent, such agent to be known to the children including MS A, to assist in the changeover of the children from one parent to the other and the father be and is hereby restrained from being within two hundred metres of the changeover venue.
That the Mother purchase a communication book and thereafter the communication book accompany the children on spend time occasions and each parent enter into the communication book matters immediately relevant to the lives of each of the children including but not limited to matters of health, education, invitations to children’s birthday parties, medical, dental and allied health appointments for each child.
Subject always to the direction of the Principal of any school attended by either or both of the children and or co-coordinator of any agreed extracurricular Saturday activity attended by either or both of the children, each parent be at liberty to attend any function to which parents are customarily invited and each parent shall ensure that time with the other parent for congratulatory or other like purposes is facilitated by the other parent.
The Father shall provide to the Mother by prepaid post to such address as shall be notified to the mother a certified copy of the Victorian’s Driver’s Licence and pending same the father shall ensure that the children shall only be driven in a motor vehicle which is registered and the driver of which is an adult person holding a Victorian Driver’s Licence and that adult person is known to the children.
That the Father be and is hereby restrained from communicating with the Mother in any derogatory and/or critical and/or offensive manner, such communication to be direct to the Mother and/or by email and/or by text message, and the Father is further restrained from denigrating the Mother or attempting so to do in the sight and/or presence and/or hearing of either or both of the children.
That the Father ensure that any health and/or allied health professional assisting him whether voluntarily or pursuant to the requirement of any Community Based Order or similar direction is provided with:
(i)A copy of this order;
(ii)A copy of the report of Ms M dated 5 May 2014; and
(iii)Any reasons for the decision of this Court.
The Mother be at liberty to provide the principal of any school from time to time attended by either or both children and any medical practitioner and /or allied health professional attending any one of the Mother and the children with
(i)A copy of this order;
(ii)A copy of the report of Ms M dated 5 May 2014; and
(iii)Any reasons for the decision of this Court.
That the Order for the appointment of the Independent Children’s Lawyer be discharged.
That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order, are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
That all extant proceedings be otherwise dismissed.

THE COURT NOTES:

A.It is agreed between the Mother and the Father that if are any future difficulties arising from the interpretation and enactment of this Order that such a dispute be referred to an appropriate medium of Alternative Dispute Resolution.
BIt is agreed between the Mother and the Father that in accordance with paragraph 67 of the report of Ms M dated 5^th May 2014, the Mother will set out written recommendations for the Father for the purposes only of assisting him to manage any physical and emotional health issues presented by the children during the time they spend with him.
C.The father consents to these Orders without making any admissions at all that the restraints placed upon the father are necessary.
D.At the recommendation of the Independent Children’s Lawyer (Mr Mulvany) the father and the mother each having received legal advice has acknowledged that in the event of any proceedings being issued between this date and the 1^st July 2015 neither the father nor the mother will seek to rely upon the principle in Rice v Asplund (1979) FLC 90 -275.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 6831 of 2008

MS LEPP

Applicant

And

MR GRANTHAM

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute about two children: X, born (omitted) 2004 (known as X), and Y, born (omitted) 2006. The children live with their mother, and the dispute in the case is about the extent of time they should spend with their father.
The position of the Independent Children’s Lawyer is that, subject to some important caveats, the father’s time expand to ultimately each alternate weekend supervised by the paternal grandmother, and unsupervised from June 2015, together with special days. The father’s position as set out in his amended response filed 24 June 2014, at which time he was legally represented, would have unsupervised time from Friday until Saturday on alternate weekends within a much faster timetable. The father’s position as articulated in the Court, bearing in mind that he was self-represented, remained much as articulated in the amended response, but included an application for the children to spend half school holidays with him, if I understood the matter correctly. The mother’s position was similar to, but not identical with that of the Independent Children’s Lawyer, and would require all time spent with the father to take place at the home of the paternal grandmother, and did not provide for a school holiday time. There were various other issues in the proceeding as to changeover and ancillary matters.
For the reasons that follow, I am going to make the orders sought by the Independent Children’s Lawyer.

Agreed facts

The mother is a (occupation omitted) by profession, and was born on (omitted) 1981 (note- some documents say (omitted) 1981). The father is on a disability support pension, and was born on (omitted) 1974.
The parties commenced a relationship in early 2001, and the children, X and Y were born on (omitted) 2004, and (omitted) 2006 as earlier noted. The parties separated in either November 2007 (mother’s version) or January 2008 (father’s version) when the mother moved to the home of her parents. The mother obtained an Intervention Order against the father in January 2008.
Although there is a dispute as to quite how and why it occurred, it is clear that the father moved in again with the mother in January 2011, and remained in the home until the mother took out an Intervention Order on 7 July 2011.
A family report was obtained from Ms M dated (omitted) 2012. Subsequently, a report of the children’s counsellor, Ms L was released on 18 December 2012.
The matter was before Judge McGuire on 5 March 2014, when his Honour made remarks to the father as to his previous conduct in sending texts to the mother, to which it will be necessary to return.
A further family report dated 5 May 2014 was prepared by Ms M for the hearing which commenced on 21 August 2014.
At this point it is appropriate to paraphrase the materials filed by the parties. It should be noted that while I have had careful regard to all the materials the parties have filed, what follows is a paraphrase of those matters in the affidavit material that strike me as being of significance.

The material filed by the parties

The wife’s initiating application filed 16 November 2011, sought that the children live with her and spend three hours supervised time with the father each alternate Saturday.
The mother’s affidavit filed contemporaneously sets out the dates of birth of the parties and the children, and the uncontroversial aspects of the facts of the relationship already recorded. I note that having moved to her parents in (omitted) in November 2007, the mother moved in March 2008 to an address in (omitted) where she continues to live.
The mother deposed that agreement was reached in late 2008 with the father that he should see the children each alternate weekend from Saturday to Sunday. This arrangement continued through until late 2010 at which time the father started spending additional time and attending the applicant’s home throughout the week. The affidavit deposed to the father returning to the mother’s home in January 2011, but expressly denied a recommencement of the relationship. The mother deposed requesting the father to move out in about July 2011. According to the affidavit, the husband smoked cannabis on a regular basis at the home and was not working, and gambling much of the money he obtained from Centrelink.
The mother deposed that the tipping point was a threat made by the father allegedly to the effect that he would take the children and throw them off the Westgate Bridge. This lead to an Intervention Order made against the father on 7 July 2011.
The mother deposed that the father had repeatedly breached the Order by attending on numerous occasions to spend time with the children. According to the mother, he would turn up unannounced and uninvited, but she did allow him to see the children on those occasions.
The mother deposed to a verbal fight between the parties on 30 September 2011, following which an intermittent pattern of time resumed in October 2011.
The mother deposed on a hearsay basis that the father had been prosecuted for breach of the Intervention Order and received a one month term of suspended imprisonment in October 2011. She also deposed to an incident at kindergarten on 18 October 2011 when the father made a threat that it would cost him $500 to see her buried for good.
The mother further deposed to an unpleasant incident on 7 November 2011 involving Y when the father had sought to discuss arrangements for the children with the mother.
The father’s response filed 27 January 2012 sought equal parental responsibility, that the children live with the mother and spend time with the father each alternate weekend from after school Friday until 7pm Sunday together with half of holidays.
The father contemporaneously filed a Notice of Child Abuse which relevantly asserted:
“1. The children namely X born (omitted) 2004 and Y born (omitted) 2006 are at risk of exposure to family violence in the care of their mother Ms Lepp due to her unstable mental health condition including depression and the inability to protect the children from her emotional state.”
The father’s affidavit filed contemporaneously agreed with the applicant’s account of the ages of the parties and the dates of commencement and end of the relationship. Relevantly, he took issue with the basis upon which he returned to the mother’s home in January 2011, asserting that the parties had agreed to give the relationship another go. He deposed that he cared for the children each day while he was living in the household. In relation to cannabis use he asserted (in paragraph 6) that “I have smoked cannabis in the past however I no longer do so.”
The father denied absolutely the assertion that he had threatened to throw the children off the Westgate Bridge, and deposed to finding this allegation disturbing him as to the mother’s mental state and describing it as an endeavour to alienate the children from him.
The father deposed that despite the Intervention Orders taken out from time to time, the mother decided to continue in a relationship with him and that he found that this was perplexing and irrational. He deposed to those matters which caused him to believe that the mother’s mental health was unstable (paragraph 14 of the affidavit).
The father deposed to having a very good relationship with the two children who were always safe and well looked after when in his care, and deposed to his participation in particular with X's Auskick.
Orders were made by consent on an interim basis on 16 May 2012 with the father spending supervised time with the children, but the matter returned to Court in December of that year.
The mother’s affidavit filed 18 December 2012 deposed to the May 2012 Orders, and to the fact that the father had by and large spent time with them pursuant to those Orders up until that time.
The gravamen of the affidavit is set out at paragraph 6 where the mother deposed:
“ Unfortunately, the Respondent’s behaviour towards myself continues to be abusive, intimidating and threatening, and continues to occur in the presence of the children. The Respondent’s abusive behaviour towards me has been continual for a considerable period of time. It has been occurring from prior to commencing this proceeding on or about 15 November 2011, to the time of swearing of this Affidavit. The Respondent conducts himself in this abusive manner most often when changeover is occurring each alternate weekend. Specifically, I recall the following events:…”
The mother then set out two instances of behaviour in July 2012 and December 2012 when according to the mother, the father made a number of grossly offensive remarks to her.
The mother went on to depose that she had enrolled the children for counselling with Ms L from (omitted) Health.
On 19 December 2012 the Court made Orders suspending the father’s time, and effectively requiring supervised time at the Family Life (omitted) Contact Centre, and some supervised time pending the availability of the contact centre, together with psychiatric examination, and other initiatives to assist the father to improve his behaviour.
On 23 May 2013, without any materials having been relevantly filed by the parties in the interim, further interim Orders were made, culminating in a posited trial on 19 March 2014. The Orders relevantly provided that the children would spend time with the father in the immediate presence of either or both of the paternal grandparents at a McDonald’s restaurant. Ancillary orders were made for the matter to proceed to trial.
On 4 March 2014 the mother filed a further affidavit. The affidavit is somewhat strange in its terms. The first page consists of the identification of the applicant and her address and occupation, and details the applicant’s affidavit and the orders made by the court on 19 December 2012. The rest of the affidavit purports to be text messages sent by the father to the mother. There is no further text from the applicant and no jurat.
Notwithstanding these inadequacies, no objection has been taken to this affidavit’s form, and there has been no suggestion that the text messages allegedly sent were not indeed sent either, as the case may be, by the father to the mother or vice versa.
The first text message is on 5 June 2013. The last is on 25 February 2014. There are numerous such messages, often more than one a day. It is apparent from these messages that the father was extremely put out by the fact that the mother had re-partnered.

The terms and tenor of the messages is largely extraordinarily offensive, insulting, threatening and generally disgraceful. It is distasteful for such matters to be recorded in a document that will be made available to the public albeit with the parties anonymised. But in the particular circumstances of this case I think that the proceeding can only be properly comprehended if I give some, albeit quite horrible, examples of what the father said. On 5 June 2013 the father sent the first text to the mother in these terms:
“My big misses u cuming n squirting on it and to think your doing that to him.”
On 9 June 2013 the father texted the mother:
“Thats a discrace [sic] that (omitted) gets the royal treatment and gets shit n my kids watch him eat it but u r stupid this Mr D cunts pushing it u just keep lettin him me? Both naked in bed with Y in it what the fuck cunt.”
On 12 June 2013 the message read:
“This cunt thinks he can just start bangin someones missus n start playing daddy good luck cunt u need it.”
On 22 July 2013 the father’s text read:
“We both gonna loose [sic] kids now bitch u were wared [sic] children services involved he’s not there fucken dad its wrong n immoral n always will be dumb ass who’re [sic].”
On 4 August 2013 the text read:
“Worked out how good or [sic] son is yet dumb slut your holding him back per usual as for fuck wit close il tee off on his big 3d head have a bday to remember make sure of it.”
On 6 August 2013 (which the father well knew was the mother’s birthday) the text read:
“Happy birthday hope ya get what u deserve heartless bitch prob did lastnight good hard fuck slut all ya good for just a dirty whole [sic] have good night.”
On 9 September 2013, when Y had had a fall at school, the mother’s text to the father is a stark contrast:
“Y had a fall at school today. We have been at the Royal Children’s. She has had stitches, glue and has strips on the top. The glue lasts five days, the stitches will dissolve. If you would like to talk to her you can give her a call now. She can’t talk for long, as my phone is going flat.”
It is fair to note in the father’s favour that despite the appalling nature of the messages he was sending, they are also redolent with references to his ongoing desire to spend time with his children.
An indication of the sort of explicit threats that the father sent was the text on 16 October 2013:
“You just don’t get it do ya, who do u think the kids will be living with in the next few years, I wonder watch ya rear vision mirror tomorrow drive carefully lots of dickheads on the roads. Mr D not driving his pink car any more blew [sic] one.”
That the messages continued to be abusive is confirmed by the text sent on 16 December 2013:
“Please smartin up before next court case kids need me both of them in many different ways your not that stupid u know stop playing dumb and hiding behind your wheelchair bound aunty stop playing the victim been years done nothing so quit the fucken act save it for Mr D when u act like your not a slut he knows better any sprinkler is a slut.”
That the father remained obsessed with the mother’s new partner is revealed by the email sent on 22 December 2013:
“Enjoying the festive season playing happy families with my kids remember the mistletoe women [sic] this Mr D cunt thinks he can play dad we will see how that works out for him.”
One of the last messages sent, on 20 February 2014, perhaps articulates quite well the father’s state of mind:
“I should be able to see and speak to my own kids its not right your prob wrapped about the timing of that cricket incident that’s a disgrace yet that dude seen his kids I can’t the world is fucked he and other fuck wits wreck it for good battler dads like me and the system allows u to manipulate it cmon kids love me I love them there never in danger of anything around me u positively know that 100% quit being your mum a bitch.”
The mother filed a trial affidavit on 14 May 2014. This was essentially a reprise of the affidavit material already filed, although it deposed to some more recent incidents where the respondent had abused and denigrated the mother in front of the children. The report annexed a report from Ms L (exhibit DL-4). No objection has been taken to that report being before the Court. The report noted that Y had become aligned with her father and opposed her mother re-partnering with another man. Ms L asserted relevantly:
“These children are extremely vulnerable and need to be protected as much as possible from the fathers difficulty in accepting the end of the relationship and Ms Lepp’s right to conduct her life any way she wishes. It seems that most of the comments and anger directed to Ms Lepp in the presence of the children are in relation to his beliefs about her perceived betrayal of him with other men.
While the children continue to be involved in the father’s anger towards the mother and his difficulties in containing and managing his feelings in a way that protects his children, the children are at significant psychological risk. There are also significant difficulties for the children in having a positive and secure relationship with their mother Ms Lepp, which is imperative to their emotional well being.
My recommendation is that the father not have unsupervised access to the children until an assessment of his psychological state be made. By this I mean a forensic assessment to assess risk in relation to possible morbid jealousy towards the mother, as well as an assessment of his capacity to manage his thoughts, feelings and actions in a way that prioritises the children at all times. Counselling for the father would be very important to help him learn to manage his own distress, as well to help him understand his children’s needs to assist him to have a positive and healthy relationship with his children.”
The father filed a responding affidavit on 24 June 2014. He deposed, relevantly, to having been told by Judge McGuire at Court on 5 March 2014 that if he wished to continue a relationship with the children he needed to cease his text messages and to stop smoking marijuana. He deposed that since the hearing he had not sent any texts to the mother and that he had ceased using marijuana about three months prior. He deposed that he had attended a parenting separation course and a men’s behaviour course in an endeavour to be the best parent that he could be for his children.
He further deposed that he was seeing a psychologist for treatment of his depression and anxiety under a mental health care plan and had also attended South East Alcohol and Drug Services as part of his Community Corrections Order between January to March 2013. He then deposed to his involvement with X’s extracurricular sports and difficulties that he asserted had been caused by the mother’s refusal to let him attend. He further deposed to the fact that Y had been hospitalised, suffering from stroke-like symptoms earlier in the year and complained that he was not notified.
The mother’s responding affidavit was filed on 20 August 2014. She deposed to Y having been hospitalised in April 2014 and that this had been diagnosed as resulting from symptoms of significant family stresses. A report from the children’s hospital confirming this was annexed to the affidavit.
The mother went on to depose that she had had virtually no contact with the father between March 2014 and 16 August 2014. She deposed that the only time they saw each other was at X’s football game each Sunday but that they did not speak.
She then deposed to an incident on 17 August 2014 at X’s grand final football game. The mother attended with Y, as did, indeed, the father and some of the mother’s extended family. According to the mother’s affidavit, the father and mother even had some brief civil conversation prior to the start of the game.
The mother deposed that at approximately quarter time her new partner, Mr D, attended in order to support X, whereupon the respondent made the following three comments:
“(i) During the half time interval the Respondent approached me and said “it is not fucking good enough that you brought him here” and that “he was not their father”. The Respondent said this whilst in the presence of Y, in that he was holding her hand at the time.
(ii) At the conclusion of the game and whilst we were in the change rooms whilst I was attending to getting X ready to leave the ground, the Respondent came over to me and said “it wasn’t good enough that I brought Mr D there ... I couldn’t fucking care less if I spent 6 months in jail for punching his lights out”. The Respondent said this to me whilst both X and Y were in close hearing and standing basically beside us.
(iii) After the conclusion of X’s grand final, we stayed to watch the under 12’s play their football grand final and then we went back to X’s home ground located at (omitted) for an after match function. At the conclusion of the after match function and as X and Y were leaving with me, the Respondent made further comment to myself in the hearing of X and Y, saying “it was wrong bringing him today, you’re lucky I didn’t put one on his chin.” I voice recorded the Respondent Father’s comments on this final occasion.”
The mother went on, in the light of those matters, to seek an order for sole parental responsibility.

The Proceeding before Judge McGuire on 5 March 2014

The significance of the transcript of the proceeding before Judge McGuire on 5 March 2014 lies in the fact that it was asserted on a number of occasions during trial by the father that Judge McGuire had promised the father what the father described as “his parental rights” if he ceased to text the mother and ceased use of marijuana.
I observed during the trial that it was inconceivable that his Honour would have used the phrase “parental rights”, because such a phrase is not known in the Family Law Act 1975 (“the Act”). Nonetheless, in view of the father’s insistence that this was the purport of what Judge McGuire had put to him, I have caused the transcript to be made available and studied it. It is immediately apparent that the matter was not put in the terms asserted by the father. What his Honour said is indicated, for example, by the following passages from page 9 of the transcript:
“You’ve got to stop harassing the mother. If you harass the mother – stand up. If you harass the mother, I will presume that that is contrary to your children’s best interests and you won’t see them.
…you won’t do that, because if you do – this is really simple. This is not rocket science. If you do that, I will order you don’t see your children. So you’re an adult, subject to the state laws. You can send as many text messages as you want. You can put anything you want in them, and I don’t care. All right? That’s between two adults. The strongest likelihood is that the state court will stop you doing it anyway, and if you keep doing it they will throw you in the can, but that’s a matter for you. But as far as your children go, if you do that, you won’t be seeing them. Have you got it?”
Mr Grantham replied, “Yes.”
At P-16, his Honour said this:
“So, whatever problems you have got, keep them to yourself. Because these children don’t need to be in the middle of some adult dispute that’s, frankly, unnecessary. Whatever you two – whatever your problems are, keep them away from the children. And this court deals with the children. All right? And that’s what it’s about. Your relationship is finished. I’m sorry to tell you that. Right? But it’s finished. It’s over. So no more text messages. If you do – I have warned you, and I will tell you in front of her – you will not see these children.”
At P-20, his Honour continued:
“Now, you need to know that they want the supervision continuing. So, basically, you have got to behave yourself. Any more text messages like that you’re pretty much wasting your time.”
A perusal of this transcript shows beyond doubt to any reasonable observer that what his Honour was saying was not that if the father improved his conduct he would get “parental rights”, but rather, that if he continued his conduct, he would not see his children at all. It is noteworthy that even now the father is completely unable to understand what it was that his Honour was telling him when, as I have indicated, to any reasonable observer it is clear beyond doubt.

The father’s position at Court

Prior to evidence being given, the father confirmed his final position. He wanted one overnight per fortnight from Saturday to Sunday, half school holidays and time at Easter and Christmas. He wanted to move to unsupervised time after three months. On Christmas Day, he wanted 12pm until 4pm and two hours on the children’s birthdays if a school night and three hours if at a weekend. He wanted permission to go to all the children’s sporting events, to receive any medical reports and school photos. He further wanted time at Easter by agreement and on Father’s Day from 12pm until 4pm.

The evidence of the mother

In evidence-in-chief, the mother repeated her account of matters that occurred the previous weekend, detailed in her most recent affidavit. She played a recording on her phone of the third incident referred to and said that this was recorded with the telephone in her pocket, with X beside her and Y behind, in the car.
The mother deposed that there should be overnight time after three months, with the delay necessary to ensure that the children could cope. She said that she had got Y over her bedwetting and that the children were still seeing Ms L fortnightly on Tuesdays.
The mother said she proposed time from 12pm until 5pm on Sundays. So far as X’s football was concerned, she said she found it difficult to leave because the father tended to delay departure.
The mother confirmed that she opposed half school holidays on the footing that the children had only spent one overnight time with their father in 2012, and she did not know what he would do with them. She proposed that time be spent at the paternal grandparents’ home. She said she had no problem with the orders sought in relation to Father’s Day and photographs.
I should make it clear that I found the mother’s answers about the events from January to June 2011 and the resulting Intervention Order that arose out of that time palpably believable. The mother impressed me as being a clearly honest witness. She denied making up the incidents in the most recent weekend.
The father, who was, of course, representing himself, cross‑examined.
The mother said that Mr D, her partner, had been taking X to training all season and that X had been asking Mr D to attend his football since last year. She and Mr D had decided that with X’s second grand final, it would be appropriate and a good opportunity for Mr D to attend.
The mother confirmed that she had had her telephone on for some time before the matters she had recorded occurred.
When questioned by the father as to not notifying him about Y’s illness, the mother said by the time she had arrived, Y was fine, and that she had told the paternal grandmother later.
The father put a number of questions about Mr D to the mother. I noted particularly an accusatory question to the effect that Mr D plays golf with X in circumstances where the mother has only known Mr D for two years.
Under cross-examination by the Independent Children’s Lawyer, the mother confirmed that she had gone to her doctor after Y’s panic attacks, who had referred her to Ms L. She reported that Ms L had told her the relationships between the mother and Y were conflicted and that Y hates her “because she keeps daddy out”. She said, however, that the relationship with Y had now settled down following return of her parents from overseas. She confirmed that she relied upon Ms L’s advice.
When questioned about the events at the recent football final, the mother confirmed that the father had yelled across the ground, “It is not fucking good enough” and that the matters complained of in subparagraph (ii) of her affidavit took place in the changing room after the game. The mother confirmed that she did not turn her telephone on until she heard that the father had abused Mr D.
The mother was aware that Ms M recommends joint parental responsibility but said that she did not think “we can do it”. They had had a communication book in the past, but the father lost it. She said that the parties use emails and that she uses emails generally.
I permitted the father to put some further questions. The only answers of note were that the mother said she did not talk with the children about what they say to Ms L and that the children are not upset before they see Ms L.

The Evidence of the Father

The father confirmed that he is unemployed. He said he was a good dad and that the kids love being around him. The father said that he does his best and loves his children and would never harm them. He said that he would not throw them off the West Gate Bridge. He grew up without a father and did not want the same outcome for them. He said he does “arts stuff” with Y, and that they go to Luna Park and the like. He said although he does not have money, he makes sure he has $150 per fortnight for the children. He said the children beg for more time and are safer with him than with anyone else in the world.
Under cross‑examination by counsel for the mother, the father complained of not seeing his children for some time. He did, however, confirm that he has spent the time with the children ordered by the Court. He said the mother is a good mum and that he accepts her new relationship. Nonetheless, he almost immediately complained that X had played 18 holes of golf with the mother’s partner but not had time with him. He said that the mother felt the same from his texts as he felt not seeing his children. He asserted that the mother was not entitled to bring her partner to football. The father said that he is superstitious and knew as soon as the new partner turned up that his son would lose the grand final, as, in fact, transpired. He denied point‑blank saying anything bad to the mother at the football final and said that he did not hurt anyone.
He said he completed a course in June 2014 but had not seen his psychologist for the last two to three months. He confirmed he was on a disability support pension arising from an injury. When taken to his response filed in June 2014, which sought different orders, he confirmed that what he wanted is what he had said earlier in the day at Court.
Under cross‑examination by the Independent Children’s Lawyer’s counsel, the father confirmed that he had not sent any text messages since Judge McGuire’s admonition in March.
He admitted sending text messages until 2014 but said he did not think that he was abusive or threatening. He said he was not abusive or threatening but then said he had made a mistake. He said he had done programs.
So far as the incident the previous weekend at the football final was concerned, he denied the two incidents asserted by the mother which were not recorded by the mother’s telephone. He said that he had said to Mr D, “Why don’t you go and watch your own son play football?”
He confirmed that the children knew he had a problem with Mr D being present at the football. He confirmed he had been under medical advice with Dr S for about a year and that this doctor had said he had mild depression when he smoked marijuana. He said he could talk to the mother as long as she was reasonable. He confirmed that he was seeking “parental rights” to his children and that the past does not eat him up as it used to.
The father said he thought that the Independent Children’s Lawyer was against him.
In what was effectively self re‑examination, the father said, “Why can’t you see the good in me?” He said, “The judge told me I would get more rights if I did the right thing.”
He said he got up at 5.30am on Sunday and cycled to Dandenong and took the train to the city just to see his children for one and a half hours. He said, “The children love being around me.” He said he had done four courses. He said he was hopeless with money but made sure he had money for his children.

The Evidence of the Paternal Grandmother

Ms A confirmed that she is retired but worked for the (employer omitted) before retirement. She said that her son was not like the people she used to deal with. She said that Judge McGuire had asked the father to lift his game, and said that if he complied with all the requirements it would be looked upon favourably. She said that the father does not bad-mouth the mother and that he would not harm his children.
Under cross-examination by counsel for the Independent Children's Lawyer, Ms A conceded that if the father had said bad things about the mother or her partner to the children, this would be bad. She said she would shut the father down if he said something like that in the presence of the children.
In re-examination Ms A said that Y was distressed over seeing Ms L. She said it has all gone sour and horrible for the children. She said the father was a good father and would do anything for the children, and would not be a danger to them.

The evidence of Ms M

Ms M was called and adopted her reports as true and correct. They were tendered as exhibits ICL1 and ICL2.
When asked to comment on the father’s proposed time regime, Ms M said that shared school holidays were impracticable. Time with the father on an overnight basis should start in November if the father ceased abusing the mother and the father’s drug screens were clear. She said this could start at the end of September or October. She did not see it as necessary to change her recommendations because of the events alleged to have taken place the week before. She said tension levels would be high before Court and the mother was highly threatened by the father’s comments.
She noted that the children were stressed because they were not spending enough time with their father, and that when you saw him with the children you would think he should spend time. But Ms M indicated that if he loses his temper, then she could not be confident that things would progress well. She noted that the children continue to be caught in the middle between their parents, and behave badly after their return to their mother. She said that only time would assist the father to cope with seeing the mother with her new partner. Nonetheless, she felt that the father had improved a lot between the first and second interview. He had come a long way but this was an unpredictable thing. She said that joint parental responsibility would be difficult, but if it was removed the father would be completely ignored.
When counsel for the Independent Children's Lawyer asked what should be done about the fact that the father opposed counselling for the children, Ms M said that this had occurred as a result of the stroke-like symptoms suffered by Y. In the event of ongoing dispute, she suggested that the Independent Children's Lawyer should determine the matter.
Under cross-examination by the father, Ms M confirmed that the children missed seeing him and suffered for not seeing him. She said, however, that the father had to accept responsibility, too. She said Y was affected by a lot of factors and the biggest one was when her parents came together. She said she could not fault the father with the children but could not say how the father would behave when she was not there. Ms M said “you can’t contain yourself. It makes us wonder what else happens.” She confirmed that Y was a very feisty and strong-headed girl, and that her relationship with her mother was strained but that the father had a part in that. She said that Y was fighting the father’s fight and should not have to. She said the need to see the father needed to be balanced against the risk to the children. She said that one overnight in the first week of school holidays on Wednesday to Thursday was the appropriate commencing regime.
It should be noted that in his cross-examination, the father frequently referred to what he described as “my parental rights”.

The reports of Ms M

The reports of Ms M make very helpful reading in this proceeding, but in the light of the way the evidence has come out it is not necessary to traverse them in any detail. I would refer, however, to some extracts of the May 2014 report as they give further insight, in particular, to the father. I note that at paragraph 18 the father was concerned that the mother and her solicitor were doing everything against him to see that he does not get to spend meaningful time with his children.
He further stated at paragraphs 19 and 20:
“19. Mr Grantham shared his angst and frustration that he knew of many fathers who did not wish to be there for their children. He stated that he failed to understand why the mother or the Court did not want him to be present in the lives of his children in a meaningful manner.
20. When asked if he had contributed to his current situation, Mr Grantham stated that last year the mother had made false allegations that he had hit her at the McDonald’s car park and the Court had stopped the children from spending overnight time at his home and had ordered that his time with the children to be fully supervised. After probing further, Mr Grantham conceded that he had yelled and abused Ms Lepp verbally, but he had never hit her, because he was not in the habit of hitting women.”
I note that at paragraphs 21 and 22 Mr Grantham complained of the new relationship the mother had entered into. At paragraph 23 Ms M recorded:
“23. Mr Grantham stated that in recent months he had calmed down considerably. He said that since March this year he had stopped sending ‘stupid messages’ to Ms Lepp. He was attending ‘Seeds program with Counsellor Ms M’ and had cut down the use of marijuana. He assured her that he had not smoked it for the last three months.”
The matter, in my view, is well described by Ms M at paragraphs 45 and following where the report says:
“45. The writer has previously recommended that the children stay overnight on a fortnightly basis at the home of the father in the supervision of an adult family member. However it was also foreshadowed in a previous family report that if the father fails to emotionally separate from Ms Lepp and continues to carry on his abusive conduct with her, the recommended regime would become inoperable. As indicated, after almost two years the matter is back to the starting point.
46. Based on the information given by the parents and the evident text messages sent by the father to the mother until March this year, it would seem that Mr Grantham continued to carry on his recurrent offensive and abusive pattern of communication with the mother. He has been unsuccessful in obtaining the orders to spend extended and unsupervised time with his children as he appears to have limited understanding of what constitutes abusive and inappropriate communication and behaviour.
47. Mr Grantham argues that he has never been physically abusive to the mother. Although he now admits that he is guilty of sending abusive verbal messages to her, he appears still not cognisant of his ongoing barrage of offensive and abusive verbal communication is a serious form of family violence.
48. However, in March this year and after the Judge had apparently warned Mr Grantham to stop his abusive behaviour, Mr Grantham seemed to have stopped sending such messages to the mother. It is hard to say if this is a permanent voluntary change in him or obligatory behaviour enforced by the Court. Only time will establish the truth of the matter.”
Ms M dealt with the father’s drug problems and matters arising out of his Community Correction Order (which followed a breach of the Intervention Order and for which, in his text messages, the father reproaches the mother), and the report also noted the clear evidence provided by Mr Grantham as to his mental health. Having noted the children and particularly Y’s strong desire to spend time with their father and the need to balance concerns about the children’s safety and welfare aspects, the report continued at paragraphs 57-58:
“57. Before further orders are made it is essential that the father presents evidence to Court that he has refrained from using marijuana as started and he gives an undertaking to provide supervised drug screening for the next six months on a bi-monthly basis.
58. The father also needs to establish that he has changed his offensive behaviour towards Ms Lepp and is able to accept as well as respect the fact that she is allowed to live a life she chooses. Mr Grantham needs to be cognisant of the fact that if he fails in this regard, he will let down his children badly and the negative impact of such would be detrimental to the development and progress of his children.”
The report went on to recommend equal shared parental responsibility, and a spend time regime under the supervision of the paternal grandmother fortnightly from Sunday after sport until 5pm for the next six months and then, depending upon the father being drug-free, a fortnightly Friday to Saturday with the condition that the children sleep only at the home of the paternal grandmother. If things went well, then time would gradually be increased.
I further note the recommendation that if the father evidently breaches Court Orders, the mother would have leave to suspend the children’s time with him, and that the children continue to attend Ms L for emotional support, as directed by Ms L.

The submissions of the parties

Counsel for the Independent Children's Lawyer addressed first. He opposed the children spending half school holidays with the father and adopted Ms M’s suggestion of one extra night in the first week. He submitted that the presumption of shared parental responsibility was rebutted. This arose from the Intervention Order and the father’s conviction for its breach. In any event, the parties are unable to communicate and neither side has any suggestions as to how that might improve. Counsel submitted that the mother’s evidence was credible and she had done her best in difficult circumstances. He submitted that the father shows a complete lack of insight and does not recognise the mother’s role in the children’s lives and the importance of her to their wellbeing. He cannot accept the role that others play in the children’s lives.
Counsel submitted that one night per fortnight would be appropriate. He conceded that the children have a warm relationship with their father and he is a hugely important person in their lives. It was necessary to conclude proceedings which had been in the Court for three years. He submitted the children were aware of and adversely affected by the proceedings.
Counsel for the mother pointed out that Y’s stroke-like symptoms started shortly before her grandparents went overseas and stopped when they came back. He conceded that the school holidays arrangements suggested by Ms M were appropriate. He pointed to Ms M’s recommendation that overnight time commence in six months, and submitted that the matter should be approached cautiously. He joined in the submission that joint parental responsibility was inappropriate.
The father said that he wanted to communicate with the mother, and that he did not think that the Independent Children's Lawyer was fair. He complained that the Independent Children's Lawyer did not respond to him and did not respond to an approach from his psychologist. He said that the Independent Children's Lawyer represented the mother and not him. He said he would do whatever it takes to see the children more and that time should start now. He conceded that he had breached the Intervention Order but immediately went on, in effect, to complain of the mother’s conduct. On his version of events, the mother had tolerated his presence for some seven to eight weeks at athletics and then got the police.
He said he was a good parent, and the children think he is a good parent. He accused the mother of stopping him from seeing the children for seven months by lying. He opposed sole parental responsibility because he would rather have some input than none. He complained that he did not have a lawyer and that the mother has had lots of lawyers.

Conclusions as to credit

As earlier indicated, the mother was a good witness. Although she became labile under the accusatory and hectoring cross-examination of the father, it was obvious to me that she was being truthful and was a witness whose recollection of events was clear. She presented as worn down by this lengthy dispute and her answers about the events at the football final were given with evident sincerity.
It is, of course, always regrettable to have to make remarks in a judgment which may be hurtful to parties or witnesses who have to read them. Unfortunately, in this case the nature of the dispute makes this unavoidable.
The father presented as angry, unremorseful and totally lacking in insight. Everything that has gone wrong is everybody’s fault but his. According to him the mother is a liar. The Independent Children’s Lawyer is biased. Ms M has got it wrong. The Court is unfeeling and unsympathetic.
The constant reference to “my parental rights” in the father’s discourse shows where he is really coming from. While it is clear that he adores his children and, indeed, it is also clear that they love him, what is equally clear is that he is not a good or honest witness.
His answers about the recent events at the football final were wholly unpersuasive. He conceded the third alleged conversation, in my view, only because he had no choice. He then said that he was only whispering but, as I pointed out during the currency of the hearing, I do not accept that. The machine that recorded his words was inside the mother’s clothing and, if it was said sufficiently loudly for it to be recorded when X was sitting right next to the mother, it is inconceivable that he did not hear it also, his ears not being covered by clothing at the time.
I found the father’s self-pitying but also aggressive demeanour extremely off-putting. It is noteworthy that he described the appalling emails he sent to the mother merely as “stupid”. He does not seem to realise even now how offensive they were.
I have no doubt that the father could not contain himself when he saw the mother’s new partner at the football and no doubt that he said the two things that the mother says he said in the circumstances she describes. In other words, in the immediate presence of his children, he made insulting and derogatory remarks to her about her and her new partner. He also threatened to hit him, despite his alleged non-violent, non-threatening nature.
The father said on a number of occasions that it was disrespectful of the mother to have brought her new partner to the football. He said that other people in the crowd were telling him this throughout the day, doubtless people of a similar degree of insight to himself.
Indeed, as I pointed out to the father during the currency of the hearing, there is no earthly reason why the mother should not bring her new partner to the football. I accept the mother’s evidence that Mr D has taken X to football training and that X has asked him to go to football for several years. To take him to a grand final when there would be plenty of people about, including family members, was not provocative or unreasonable. It is a measure of the father’s lack of insight that he should think it was.
Put shortly, both the demeanour of the witnesses and the objective facts (the Interventions Orders and the Corrections Order) only go to conclude that where there is any significant conflict between the evidence of the mother and the father, that of the mother should be accepted.
The evidence of the paternal grandmother was given with evident sincerity, and I would fully accept that she loves her son dearly. Nonetheless, her evidence did not put directly in issue the evidence of the mother in relation to any particular matter of controversy.

Findings on the Relevant Facts

The early history of the relationship between these parties is not the subject of substantial dispute, although it is clear that the mother had to take out an Intervention Order for good reason when they first separated.
In 2011, the mother allowed the father to move back into the house, and his behaviour during the period of cohabitation was unsatisfactory in that he consumed copious quantities of marijuana and spent a fair degree of his benefit money on gambling. Whether he and the mother entered into sexual relations during this time is not clear one way or the other (this is perhaps one area in which I have some doubt about the mother’s evidence), but those doubts do not advance to the point that I would reject her evidence altogether. Rather, I would say it is unnecessary to decide, because the end of the relationship in 2011 took place when an Intervention Order was again obtained.
It is perfectly clear that the father has been utterly unable to get over the end of the relationship. The appalling text messages he sent the mother over a protracted period of time show his state of mind all too clearly. This disgusting behaviour only ceased when Judge McGuire talked to him in the sternest terms.
Even now, however, the father does not really get it. He remains obsessed with his “parental rights”. Despite having been able to contain himself from March until August 2014, he immediately loses his temper comprehensively and in the presence of the children at the football final. He does so on a self-righteous basis: that it is the mother’s fault for bringing her new partner to the final. He wholly fails to see or appreciate that it was up to him to ignore the blandishments of the similarly ill-informed people who apparently encouraged him in his views, and that he should have behaved himself as a responsible adult. He takes no responsibility for it.
There is no doubt that the father would foment discord between the mother and the children and, regrettably, he appears that he has had some measure of success.
The extreme nature of the father’s views is revealed by the fact that he genuinely and profoundly believes that the presence of the mother’s boyfriend meant that his son’s team lost their grand final. Such outlandish absurdity requires no further comment.
Against this background, I come to the statutory pathway.

Parental Responsibility

Although Ms M’s report recommended shared parental responsibility and, as recently as the filing of his case outline, the Independent Children’s Lawyer did too, as I understood the final submissions made by counsel for the Independent Children’s Lawyer, equal shared parental responsibility is opposed.
I note and accept Ms M’s evidence that to remove shared parental responsibility will mean that the father is deprived in all probability entirely in effective decision-making in relation to the children’s long-term interests. I note that the father opposes sole parental responsibility substantially on this footing.
Nonetheless it is quite apparent, having heard the parties give their evidence that, as counsel for the Independent Children’s Lawyer submitted, the presumption as to equal shared parental responsibility is rebutted. There has been family violence, as evidenced by the Intervention orders and the conviction of the father for breach. Furthermore, the admissions made to Ms M by the father as to his yelling and threatening the mother likewise support the proposition that family violence, within the extended meaning in s.4AB of the Act, has occurred.
Furthermore, it is not in the children’s best interests to have parental responsibility shared between two people who are so utterly unable to communicate and who, as counsel for the Independent Children’s Lawyer pointed out, are not able to provide any suggestions as to how it might improve.
It should be noted that the parties have undertaken a number of courses designed to assist them in their post-separation relationship. It is noteworthy that, when dealing with each other in Court, the parties rapidly descended into something in the nature of a domestic dispute, and I had to admonish them and remind them that they were in Court and must behave appropriately. If the parties are unable to talk to each other in a constructive or civil way even in Court, even making allowance for the fact that this was during a period of cross-examination which proceeded more as a conversation, there is no prospect whatever of their being able to do so in everyday life.

In the circumstances, in my view, the children should be subject to sole parental responsibility by the parent with whom they predominantly live, and there is no dispute that that will be the mother. I will order that the mother consult with the father about any long-term issues in relation to the children’s health, education and any other matters suggested by the Independent Children’s Lawyer.

Equal time and Substantial and Significant Time

While it is clear from the decision of the Full Court in Goode v Goode [2006] FamCA 1346 that the pathway, so to speak, to equal time or substantial and significant time is triggered only by the making of an order for equal shared parental responsibility, it is appropriate, in my view, to deal with these matters in any event.
No one suggests that equal time is in any way practicable in the circumstances of this case. It is not in any way indicated in any event. There is no need to say more than that.
The proposals by the father would, over time, amount to something approaching substantial and significant time but, in the circumstances of this case, it is more appropriate to turn at this point to consideration of the children’s best interests by reference to the matters in s.60CC of the Act, bearing in mind the objectives contained in s.60B.

The Primary Considerations

There is no doubt that it is to the benefit of both of these children to have a meaningful relationship with both of their parents. Despite their somewhat occasionally difficult relationship with their mother, she has always been their primary carer and such difficulties as do obtain seem to me to arise very clearly from the stress between the parents and the very high probability that the father denigrates the mother and her new partner to them.
As Ms M recorded, the children have a very warm, and in Y’s case almost obsessively close, relationship with their father.
Each of these parents genuinely loves their children and, in my view, it is clear that a meaningful relationship with them is in their best interests.
The difficulty, however, is that there is a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Here, it is plain that as recently as the weekend before the Court hearing, the father has engaged in family violence within the meaning of s.4AB of the Act. He made threatening remarks to the mother about her partner and, in my view, the remarks he made would also come within the meaning of repeated derogatory taunts. The father still does not see that this behaviour is utterly inappropriate. He denied two thirds of it in any event, but also blamed the mother for it. His behaviour was utterly unsatisfactory and gives limited confidence as to his likely conduct in the future. I note that in considering the primary considerations, I am required to give more weight to this aspect of the matter than the benefit to the children of having a meaningful relationship with both of their parents by virtue of s.60CC(2A) of the Act.

The Additional Considerations

Section 60CC(3)(a)

To the limited extent that this is indicated by Ms M’s report, it would seem fair to say that the children want to have a relationship with their father and spend time with him. That is consistent with the evidence in the case generally.
There are, however, two qualifications to be borne in mind. The first is that the children’s views in part derive from the conduct of the father in denigrating the mother over time, and particularly any new partner that the mother may have. There has been a clear element of alignment particularly in Y as a result.
The second qualification is that X and Y are still only nine and eight years old. It should further be noted that no one suggests that the children should live predominantly with their father. The argument in this case is about the relatively small amount of time the father seeks and the haste or otherwise of its introduction.

Section 60CC(3)(b)

The children have the relationship with their father I have already described. It is close, but almost unduly intense on the part of Y. The children misbehave upon return to their mother, as recorded by Ms M at interview, and the relationship between Y and her mother has been fractious at times. Nonetheless, I accept the evidence of the mother that Y has more recently calmed down, especially since the return of the maternal grandparents.
It would appear that the children have good relations with their extended families.

Section 60CC(3)(c)

Although the matters raised by this subsection are important, in the particular circumstances of this case they have little work to do. The father has not had the opportunity to participate in making major long-term issue decisions because of the conflict between him and the mother, and the same is true of his capacity to spend time and communicate with the children.

Section 60CC(3)(ca)

There is no doubt that the mother has fulfilled her obligation to maintain the children. They have always lived predominantly with her, and on the occasion in 2011 when the father lived with the mother, I do not accept that, as he says, he did much of the parenting. Rather, I accept the mother’s evidence that he spent substantial amounts of time consuming marijuana and gambling. The father has not been one significantly to fulfil his obligations to maintain the children, certainly in any financial sense. But to his credit, he obviously now makes a very considerable effort to have funds available (bearing in mind that he is impecunious) when he sees them. That is greatly to his credit.

Section 60CC(3)(d)

This, once again, is an important subsection but, once again, it needs to be considered in the particular circumstances of this case. No one is suggesting that the children’s primary residence should change. The argument is all about when and if the father’s time should expand. Quite clearly, in the event that the father achieves none of the changes that he seeks, he will be distraught and continue to be angry and resentful of all concerned, including the Court. Likewise, it is clear that if any accelerated pattern of time was ordered, this would provoke very considerable anxiety in the mother, who feels that the father is simply not able to contain himself.

Section 60CC(3)(e)

This section has little relevance in the circumstances of this case.

Section 60CC(3)(f)

The mother is obviously able to provide for the needs of the children, including their emotional and intellectual needs. She is and has always been their primary carer and, as counsel for the Independent Children’s Lawyer says, has done her best in difficult circumstances.
The father adores the children, but his inordinate lack of insight means that he struggles, and always will continue to struggle, to provide for the needs of his children in an emotional and intellectual sense. His warped and self-pitying view of the world will always, in my view, inhibit him in this regard.

Section 60CC(3)(g)

The mother impressed me as a dignified and loving mother doing her best in difficult circumstances. Little has, in fact, been said about her partner in the proceeding and, indeed, he was not called to give evidence. Nonetheless, I accept that Mr D has taken X to football training over a period of time and taken him to play golf. In my view, this suggests an appropriate and active part on the part of the new partner. It is not in any way the matter of proper criticism. The mother’s work as a (occupation omitted) and her lifestyle and background generally (including what appears to be a supportive and loving relationship with her own parents) are all unremarkable.
The father, in my view, lacks insight, is immature, has had until recently an extremely questionable lifestyle (his cessation of marijuana is of only recent moment) and all these things are matters of proper consideration.
The father’s mother impressed me as an extremely dignified and entirely supportive mother and grandmother of whom no criticism could properly be made.

Section 60CC(3)(h)

This is irrelevant.

Section 60CC(3)(i)

Although once again this is an important subsection, it has in a sense already been dealt with. The mother’s attitude to the responsibilities of parenthood are laudable and not, in my view, the subject of criticism. The father’s attitude is a mixture. He adores his children, as I have said already more than once. His lack of insight, as detailed already, is a significant difficulty.

Section 60CC(3)(j)

There has been ongoing family violence, evidenced by the Intervention Orders, the breach of the intervention order, the texts sent by the father until March 2014, and the incident at the football game.

Section 60CC(3)(k)

It would seem that the father’s Corrections Order has been complied with and expired. All that I would draw from the history of family violence orders in this matter is the father’s lack of self-control, something which is otherwise patent.

Section 60CC(3)(l)

It is plainly preferable, as the Independent Children’s Lawyer submits, that this matter should come to an end. It has been in the courts for three years. The stress between the parents has caused Y to have the most worrying and concerning health problems that the parties agree she has had. It is imperative that this proceeding be brought, as much as it can be, to an end.

Section 60CC(3)(m)

Although the Court obviously has to weigh all these factors together, there is no other particular matter, save that Ms M wanted orders to be made that made the father’s progression of time contingent upon ongoing drug screens. In my view, that should be ordered.

Conclusion

The Court is required to consider all of the matters in s.60CC in considering where the best interests of the children lie. In my view, it is plainly desirable that the father’s time with the children increase, provided that he is able in the future to conduct himself properly. By conducting himself properly, I mean no longer abusing the mother and ceasing altogether on a permanent basis his use of marijuana.
The regime of time proposed by the Independent Children’s Lawyer is, in my view, appropriate, as are the ancillary orders sought. These orders balance the clear desirability of the children spending time with the father they obviously love very dearly, with the imperative necessity of ensuring that the father’s behaviour does not continue to exacerbate the difficulties that obtain between the children, and particularly Y, with their mother.
This outcome, broadly consistent with the recommendations of Ms M which I have accepted save in relation to equal shared parental responsibility, is in my view, balancing all the considerations I have set out above, the appropriate one.
I have prepared some draft orders which do the best I can to draw together the orders proposed by the Independent Children’s Lawyer, my conclusions, and the concessions made by the parties. I will give the parties an opportunity to consider them and hear any further submissions.

I certify that the preceding one-hundred-and-sixty (160) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate:

Date: 24 October 2014

[2014] FCCA 2366

24 October 2014

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