LUDIC & LUDIC

[2015] FamCA 268

FAMILY COURT OF AUSTRALIA

LUDIC & LUDIC [2015] FamCA 268

FAMILY LAW – CHILDREN – where the child is sixteen years old – where the father has a significant history of mental illness – where the father denies the reality of his mental illness - where there is a history of domestic violence between the parties – where the parties separated many years ago – where the father’s time with the child has been sporadic – where consequently the father’s parenting is substantially untested - where the father seeks that the child live with him – where the mother seeks that the child spend time with the father at the child’s own discretion – child’s views.

Family Law Act 1975 (Cth)

McCall & Clark (2009) FLC 93-405
Vigano & Desmond (2012) FLC 93-509

APPLICANT: Mr Ludic

RESPONDENT: Ms Ludic

INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

FILE NUMBER: BRC 9294 of 2009

DATE DELIVERED: 1 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 31 March 2015

REPRESENTATION

APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Pendergast

SOLICITOR FOR THE RESPONDENT: Integrated Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT:

1. All previous Orders are discharged.

2. The child, B, born … 1998, live with the mother.

3. The mother have sole parental responsibility for the child.

4. The child spend time and communicate with the father at all such times as the child determines, with such time to be arranged directly between the child and the father.

5. The parties keep each other informed of a current postal address and telephone number.

IT IS FURTHER ORDERED THAT

1. The Application for Contravention filed 17 May 2010 is dismissed.

2. The Application for Contravention filed 18 February 2015 is dismissed.

AND IT IS FURTHER ORDERED THAT

1. All outstanding Applications are dismissed.

2. The Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ludic & Ludic 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 BRISBANE

FILE NUMBER: BRC 9294 of 2009

Mr Ludic

Applicant

And

Ms Ludic

Respondent

REASONS FOR JUDGMENT

1. B was born in 1998.  He is now about 16 and a half years of age.  He has lived for the entirety of his life with his mother and his older brother, Mr C, who is now about 23 years of age. 

2. His parents commenced their relationship in Country D in the early 1990s and married in 1991.  In 1995, the family relocated to New South Wales.

3. In about 2002 the mother left with the children travelling to Perth and, after this, to Queensland.  The father describes her actions in this regard as a “kidnapping” of the children.  In answer to a question asked of her by the Court utilising the language used by the father and the term “kidnapping” - the mother admitted that she had “kidnapped” the children at that time. 

4. I accept her explanation for her actions: namely, that if she had stayed in a relationship with the father and the children she would either be ‘mental’ or killed.  I further accept her evidence to the effect that her decision was in the children’s best interests because it removed them from exposure to the father and the fighting between the parents within the household.  I am not remotely persuaded that the mother’s decision to flee with the children was anything other than one based upon her assessment of their safety and the necessity to protect them from exposure to the father’s often violent and unpredictable behaviour.

5. I accept the mother’s evidence of family violence as set out in her affidavits and as recounted by her to the Family Report writer.  I note, also, that during his interaction with the Family Report writer for the preparation of the first Family Report in 2010, the child told her police had been to their home, that the father was throwing everything on the floor because he had not been provided with coffee, he wanted money and the mother would not provide it.  At the time he told the Family Report writer this, the child was distressed, upset and crying.  I accept Ms E’s assessment of his behaviour as a spontaneous reaction to a recollection of a frightening event.  Additionally, he said - when asked if he felt unsafe with the father: “not really”.

6. He further recounted having seen his father push his mother really hard into a table, that he had had her by the hair, that his older brother Mr C intervened to stop his father from hurting his mother and told him to leave - which he did.  the child also further told the Family Report writer he saw the father pulling his mother’s hair and that he left the room because he did not want to see this.

7. I accept without reservation the mother’s explanation for the manner by which the parties came to be living in the same residence after the father became aware she and the children were living in Queensland.  I further accept the mother’s evidence about the manner by which the parenting plan concluded in about September 2008 was implemented.  I am not persuaded that she acted deliberately to prevent the children from having the opportunity to spend time with the father.  I am not persuaded that she sought to undermine the children’s relationship with him.  Regard need only be had to the contents of the first Family Report prepared in 2010 and the expressions contained therein from the child.

8. Had the mother wanted to, it is more likely than not - given the father’s relative absence from the children’s lives and the limitation this imposed upon their capacity to interact with him and form their own relationships based on their own interaction with him - that she could well have imposed upon the child the view that it was undesirable for him to have an ongoing relationship with the father.  Instead, as the contents of the first and second Family Reports make clear, the child continued to express a desire to have an ongoing relationship with his father.

9. I accept the evidence given by Ms E as outlined in each of her Family Reports and during her cross-examination.  I accept her evidence in relation to her assessment of the child’s maturity given that she has clearly had an opportunity to observe his development during the occasions of their meeting between 2010 and 2014 for the preparation of the three Family Reports.  I do not accept the father’s criticism of Ms E.  I consider that she has approached her task with significant professionalism and has been the author of three comprehensive reports which have been of great assistance in this matter.  I accept her evidence and the opinions she expresses.

10. Orders were made by Forrest J on 6 June 2012.  Pursuant to this Order, the child is to spend time with the father at all such times as may be agreed between the mother, father and Independent Children’s Lawyer.  It is apparent, however (and seemingly really uncontested) that the child’s time with the father has occurred on a more ad hoc basis than provided for by the Orders.

11. The father’s evidence was to the effect that the last time he saw and/or spent time - or had any interaction with the child - was about two weeks ago for about five minutes when the father turned up at the mother’s house.  This reflects the manner by which the father has interacted with the child over the past number of years.  The father’s own evidence is to the effect that he has spent no more than two hours cumulatively with the child in 2014 and 2015.

12. The mother’s case is one in which she seeks an order that the child continue to live with her, that she have sole parental responsibility for major long-term issues relating to him and that he spend time with his father as he wishes and in a manner negotiated between the two of them.  She seeks additional orders in relation to communication between the parties and a non-denigration clause in fairly standard terms.

13. The father’s proposal is that the child live with him and spend no time with the mother.  That view is consistent with the view previously expressed by him to Ms E during interview for the 2010 Family Report.  At that time, it referred to both of the parties’ children but, in any event, his proposal at that time was that the children spend no time with their mother ever again because she was a criminal toward them, a threat to their lives and their mental health functioning because they had, to use his terms, witnessed her lies.

14. In the event that the father’s parenting regime is ordered, he intends to return with the child to live in Sydney at an undisclosed or unknown address in or about the Suburb F area where he says a significant Country D community is based.  He proposes the child attend at a local school, also undisclosed or unknown. 

15. The effect on the child of orders consistent with those orders sought by the father would be a complete disruption to his life.  He would, on the father’s case, be removed from the mother’s care, the parent from whom he has received care for the entirety of his life, would not be afforded an opportunity to continue a relationship with her, would be separated from his older brother who continues to share their home and would be removed from his local environs, friends and social relationships.  On the father’s case. he would be simply transported to somewhere in the Suburb F area and would attend at an unknown school.  His expressed wishes would be ignored entirely.

16. I accept Ms E’s evidence to the effect that the father’s parenting of the child is significantly untested.  So much is the only obvious conclusion from the reality of the paucity of interaction between the children and the father since 2002.  In such a circumstance, it is difficult to see how the father would achieve his intention of having the child return to school, particularly in circumstances where he stopped attending formal education toward the end of 2014.  At 16 and a half years of age, he is well beyond the age where a parent can simply expect unquestioning obedience and compliance.

17. It is apparent from regard to the Court record that the father, who appeared on his own behalf in this proceeding, has participated in and attended at various procedural hearings on a somewhat ad hoc basis. 

18. He was interviewed by Dr G, a psychiatrist, at the end of May 2013.  I accept Dr G’s evidence and the factual bases upon which it is made as set out in his report exhibited to his affidavit.  Dr G concluded that the father had been diagnosed with, and suffered from, recurrent schizophrenia characterised by auditory hallucinations and persecutory delusions and, when he was more unwell, his illness was manifest by a conviction that he was being persecuted by Satan and that the mother was Satan.

19. At the time of interview, Dr G concluded that the father was not a current risk to the children other than via an undermining of their relationship with the mother.  He also concluded, at the time of interview, that the father’s psychotic symptoms did not appear overly florid or preoccupying - he noted that there was a risk of exacerbation given that, when seen in terms of symptoms, schizophrenia is a recurring and remitting illness, even in the absence of treatment with antipsychotic medication.  Dr G further concluded that it appeared from his review of the material and interaction with the father that the father had been without treatment for approximately four years. 

20. During the course of the hearing, the father was at pains to reiterate that Dr G had assessed him as having the capacity to instruct legal representatives.

21. I consider that the father’s participation in the case, which included cross-examining the mother, was well assisted by the presence of the interpreter.  I should also note, however, my observations, that on occasion, the father appeared to correct the interpreter and certainly did not appear to require her assistance at all times during the trial.

22. The father’s position in relation to the recommendations made by Dr G in his report was to the effect that there was no need for him to interact with any service provider in the manner that medical practitioner recommended.  He was at pains to emphasise that he was discharged in 2008 from the mental health community in Suburb H.  He not accept that he has a mental health problem or illness and he does not accept, therefore, that he has an ongoing mental illness.  He, as I have said, reiterates that he was discharged from the mental health community, to use his phrase, in 2008.

23. When asked whether he had concluded because of such discharge that he no longer had a mental illness, he replied to the effect that he did not rely upon that discharge because he had never had any mental health issues.  He asserted that he had never had schizophrenia but, because of Islamic terrorist threats, he never dared say or prove that he had never heard voices - the latter being a reference, no doubt, to the auditory hallucinations referred to by Dr G and as recorded in the various records to which he referred and also some records which form part of Exhibit 1 before me.

24. The father does not challenge the contents of the records from the hospital.  He accepts that, at the times and dates recorded, he made the statements recorded in them but explains that he did so because of Islamic terrorists in New South Wales who had threatened him and said that they would kill him if he did not go to the psychiatrist and say that he was Jesus Christ.  He attempted to explain that he made this statement in New South Wales to the psychiatrist, but did not tell the psychiatrist that he had been threatened by Islamic terrorists that they would kill him if he did not say that.  It is clear, I consider, from the father’s evidence before me that, despite the opinions of Dr G which I accept, he does not consider himself to suffer from a mental illness.  That reality permeates the reality of the children’s relationship with him and their interaction with them.

25. In these proceedings, being proceedings for a parenting order in relation to the child, I may, subject to sections 61DA and 65DAB and Division 6 of Part VII of the Act make such parenting order as I think proper.  I must have regard to the Objects of Part VII of the Act and the Principles which underpin those Objects.  In deciding whether to make a parenting order and the terms of the same, I must regard the child’s best interests as the paramount consideration.

26. When making a parenting order I am bound to apply a presumption that it is in the child’s best interests that his parents have equal shared parental responsibility for him.  This presumption is rendered inapplicable by the matters prescribed in section 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his parents to have equal shared parental responsibility for him.  The presumption does not apply if the Court is satisfied that there are grounds to believe that either of the child’s parents have engaged in abuse of him or another child or family violence.

27. I accept the submissions made in relation to the issue of parental responsibility by Mr Andrew of Counsel on behalf of the Independent Children’s Lawyer and by Ms Pendergast of Counsel on behalf of the mother as outlined in her written submissions.  I am satisfied on the evidence before me that the presumption of equal shared parental responsibility does not apply.  Even if it did, regard to the history of the interaction between the parents, the father’s mental illness and difficulties associated with that and his continuing view of the mother as a criminal and abusive parent together overwhelmingly satisfy me that it is not in the child’s best interests for there to be an order that his parents have equal shared parental responsibility for major long-term issues relating to him.

28. I am comfortable in concluding that such is the father’s attitude toward the mother - and the consequence for her of exposure to him that would accompany any requirement to reach and make decisions jointly or to his beliefs about her and his attitude toward her - that these parents are simply unable to reach decisions jointly about issues relating to the child.

29. Regard must, of course, be had to the considerations set out within section 60CC of the Act.  The primary considerations are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect him from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. 

30. The Act does not define the term meaningful relationship, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life.

31. In McCall & Clark[1], the Full Court concluded that the preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach.  That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that that child has a meaningful relationship with both of that child’s parents.  Thus, the Court must consider and determine whether there is a benefit to the child in having a meaningful relationship with the father, such finding not being dependent simply on a lack of danger of physical or psychological harm.  If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect the child from physical or psychological harm:  see Vigano & Desmond.[2] 

    [1] (2009) FLC 93-405

    [2] (2012) FLC 93-509.

32. To the extent that the child seeks out a relationship with the father in the manner outlined to Ms E during his communication with her for the preparation of the third Family Report, I am persuaded that there is a benefit to him of recognising that he seeks an ongoing relationship on his terms.  There is no doubt that the child knows who his father is and that, in the way he has thought appropriate, he has had the opportunity to interact with him.

33. In saying this, regard must be had to his views as expressed to the Family Report writer during the interviews for the second Family Report.  At that time, the child was about 13 and a half years of age.  He expressed, at that time, initially some desire to spend time with his father, but not necessarily because he saw value in that for him, but in order to appease the father and to protect his mother and out of feelings of sympathy for his father.  The Family Report writer records him saying that if he did not have to consider his father’s reaction, he would request no further time.  Additionally, he expressed the view that he was only going to be controlled by his father’s views and behaviour for a year or so until he was “grown up” - he expressed those comments and the others recorded by Ms E in her report to the effect that the father had caused so much trouble in their lives that he wanted him to read the report so he could understand what he, the child, thought about his father.

34. It is evident from perusal of the material before me that the father’s mental illness has historically affected his capacity to parent.  Given Dr G’s evidence as to the nature of schizophrenia, it is more likely than not that it remains an issue significantly affecting his capacity to parent.  Throughout the course of the parties’ relationship and in the period from 1999 to 2008, he has had a number of admissions to psychiatric hospitals.  Dr G’s evidence that the father appeared to have been without treatment for approximately four years fits, in a sense, with the father’s evidence that, in 2008, he says he was discharged from the mental health unit operating from Suburb H.

1. I accept the contents of the medical records which form part of Exhibit 1.  I accept the fact of the father’s non-acceptance of the existence of his mental illness and subsequent lack of treatment means that a risk exists if the father’s behaviour and functioning deteriorates.  There is nothing in the evidence before the Court to suggest that the father has ever made threats to harm the children directly.  But, there is contained within the material clear evidence that he has previously expressed both suicidal and homicidal ideation and, as Dr G points out, when he has been most unwell, his comments have been directed towards his belief about the mother at that time.

2. I accept the mother’s evidence as to the impact of the father’s functioning toward the end of 2002.  I accept her evidence that the decision she took at that time was taken in order to protect the children, because the father was, at that time, to use her terms, very violent and mental and out of control - and that in such circumstance, she thought it best for the children that they not live in that environment around the father with the fighting and him not being “normal” and thinking he was Jesus Christ. 

3. I accept her evidence (given yesterday) that listening to the father during the course of the trial recalled for her his behaviour during their relationship.  I accept her use of the term “bullied” and that, for her, his presentation and interaction with her was, to use her phrase, “As it was back then, is how it is now”.

4. B is 16 and a half years of age, as I have said.  He has now been interviewed for the purpose of preparing Family Reports for this litigation on three occasions.  Ms E, the author of those reports records as follows:

   [B] has always been very conscious of the consequences his views and wishes if actualised may have upon his future relationship with his father.  In the past, [the child] appears to have felt unsure and unsafe to articulate a wish that may be contrary to his father’s, worried about his reaction.  I get a sense that this is no longer the case for him.

5. I accept Ms E’s assessment of the child’s maturity and this, together with his age, persuades me that it is appropriate to accord significant weight to his expressions of wish.  I accept that he is mature enough and has significant knowledge of his father’s presentation over time to determine the times at which, and the circumstances in which, he is prepared to interact with the father. 

6. In doing so, I record that there is nothing in the evidence to suggest that the father has ever threatened directly to harm either of his children, other than, I should say, making criticisms of their mother’s parenting: that she does not act protectively enough, allows them to be at risk of harm from things such as uneven pavers - insufficient supervision from his perspective.

7. The historical records contained within Exhibit 1 reveal that the father has previously been assessed as expressing suicidal and homicidal thoughts.  The latter could easily be seen as having been directed toward the mother and, if actioned, that would clearly cause significant harm to the child.

8. I accept Ms E’s assessment of the child as set out in her third Family Report in relation to his maturity and development to act protectively of himself.  I also accept the evidence given by the mother to the effect that, on occasions when the father has arrived unannounced at the house with the intention of seeing the child, or either of the children, and she informs him that they are not home, he leaves.  There is no evidence of directly threatening behaviour toward the mother over the last couple of years.  In saying that, I fully accept, however, the mother’s evidence of the impact on her of the father’s past behaviour and that interaction with him triggers memories of the same.

9. I do not accept the father’s contention that the child has been manipulated by the mother and does not know the “real” truth - these being proffered, as I understood it, as explanations for the child’s expression of view as recorded by Ms E.

10. It is clear when regard is had to all of the Family Reports that they chart a history.  In the first of those Reports (prepared when the child was about 11 and a half years of age) he told Ms E that the mother did not speak negatively about his father.  In contrast, when speaking with Ms E during the interview for the preparation of the second Family Report, (at which time he was a little over 13 and a half years of age) he reported that his father told him the mother was bad and not good and that, soon, he would live with him.

11. It is convenient at this time that I also record other matters submitted by the father with which I do not agree and those I do not accept.

12. I do not accept that for years the mother has tried to cause one or other of the parties’ children to be killed.  I do not accept that she would like their brains to be damaged because they are said to be witnesses to behaviour by her which is illegal.  I do not accept that she has attempted in any way, tricky or otherwise, to cause damage or harm to the children.  I do not accept that she has exposed the children to danger by leaving sharp or broken chairs about, by allowing uneven pavers to be present, or by allegedly failing to supervise them appropriately.

13. I do not accept that the children have suffered harm whilst in their mother’s care because she is alleged to be a criminal.  I do not accept that she has exposed the children to danger or acted in any way that might be thought to expose them to harm.  I do not accept that the mother is not interested in the children and I do not accept that she has not felt a need to make it possible for the children - and the child specifically - to have contact with their father.  Rather, I consider that, consistent with her assessment of the potential risk the father may on occasion have posed to the children, she has acted in a child focussed and protective manner.

14. I do not accept the father’s contention that the absence of complaint by the child to the Family Report writer, during the occasions on which she has spoken with him about suffering emotionally through the lack of opportunity to spend time with the father, has occurred because it is embarrassing for the child to say that.  I do not accept that it is the mother’s “fault” that the children’s interaction with the father has been as limited as it has.  Rather, I consider it is the unfortunate consequence of the existence of mental illness.

15. I do not accept that the mother has acted in any way criminally, (to use the father’s term) toward either him or the children.  I do not accept the contention that the mother has not respected the order made by Forrest J in June 2012.  Additionally, I do not accept the contention that the child will be developmentally impaired if he remains living with the mother.  Nor do I accept the submission that there is a necessity to change the child’s living arrangements in order to protect him from being injured or killed - for the reasons I have already expressed.

16. I accept generally the submissions made by Mr Andrew on behalf of the Independent Children’s Lawyer and the submissions prepared by Ms Pendergast, in writing, on behalf of the mother.  I accept Ms E’s evidence and assessment of the child’s views.  I accept that he has had sufficient experience of the father as a parent and that his view should be accorded significant weight.  Regard need only be had to each of the Family Reports as they chronicle the change in his attitude towards and desire for a relationship with the father.

17. I accept that those reports paint a picture of a young man of 16 and a half years of age who understands his own mind and his relationship with each of his parents and who has made an informed decision about the manner in which those relationships will continue into the future. 

18. I consider it more likely than not that, in expressing such opinions as recorded by Ms E in her most recent report, he is well aware of the impacts for himself and his relationship with his father of his decisions.  I accept and consider that he has expressed maturely a view based upon his past experiences and for those reasons I intend to accord to those views significant weight it the decision I arrive at.

19. I accept that the child has a strong and established relationship with his mother - that could only be the conclusion given the care she has provided for him for all of his life.  I also consider it highly likely that, because of the limited sporadic interaction he has had with his father, (as again chronicled in the family reports prepared for the Court’s assistance) the relationship he has with his father is much more tenuous.  I accept Ms E’s evidence, albeit somewhat historical in that it is to be found in the first Family Report, that at that time the father did not appear attuned to the child’s feelings.  I also accept, given the father’s proposal that the child simply be removed from all that is familiar to him and transported interstate to an unknown place and an unknown school, that that proposal itself is a demonstration of a lack of attunement to the impact upon the child of such a decision.

20. I accept that the mother has facilitated - to the appropriate extent - the child’s opportunity to have time with, and develop a relationship with, his father.  I accept that, when the father has arrived unannounced, sometimes the children answer his call for them and they see him.  I accept the mother’s evidence of the manner in which the interaction has occurred.  I further consider that the father’s views about the mother’s behaviour, given that they have existed from the time of the first family report and continue, are now entrenched and he appears incapable of moving beyond those.  The reality of this is that, if the child were to live primarily with him, it is highly likely he would be exposed to these negative views which would, I suspect, have the very significant potential of undermining his ongoing relationship with the mother.

21. I have already recounted, at the commencement of these reasons, the effect of the change on the child if orders were made in the terms sought by the father.  As I have said, it would remove him from his mother and the stability and security that she has provided to him over his life.  I am not persuaded that the mother has been derelict in her care of the children.  I accept the submission made by Counsel for the Independent Children’s Lawyer and Counsel for the mother that the mother has supported the child and his brother as they have developed.  I am not persuaded that she has been in any way derelict in relation to the parties’ eldest child.  I accept her evidence to the effect that he is now engaged in paid employment doing something that he likes and enjoys.

22. I additionally accept her evidence as to the manner in which she determined to deal with the child’s decision to cease attending at school towards the end of last year.  I accept that she trusted him and thought he was going to school every day I further accept that her desire is to support the child in his decision about the future course of his life and I accept she is concerned to act in a way that is supportive - rather than one which has a risk that she might, to use her term, push him away.

23. I am not persuaded that the father has the capacity to meet the child’s emotional and psychological needs.  There is a paucity of evidence in relation to his capacity to meet the child’s physical needs given the absence of information about where the child would live and how that would work, and the details of the school the father proposes he attends.

24. It is clear, as I have said, that the father continues to hold a very entrenched negative view of the mother.  It is also clear, I consider, that if the child were to live with him he would expose the child to those views.  Reference to the Family Reports makes it clear that that was the case as long ago as 2010.  There is nothing in the father’s presentation before me to suggest that there has been any change to those entrenched views or to his apparent incapacity to refrain from expressing them in the presence of the children.

25. I turn now to the reasons I intend to deliver in relation to the applications for contravention before pronouncing orders in relation to all three applications. 

26. The father filed an Application for Contravention in 2010.  The timeframe provided within that application was one which spanned from September 2008 until April 2010.  I am not persuaded that the father has established contravention.  I arrive at this conclusion because the evidence does not establish that the mother contravened - it is not established that there were particular occasions on which she did not present the child. 

27. I accept the mother’s evidence that, on occasion, the child was available and the father did not turn up. Regard need only be had to the contents of the first Family Report in April 2010 and the child’s comments to Ms E to that effect.  I am not, therefore, persuaded that the mother intentionally failed to comply, or did not make a reasonable attempt to comply, or to afford the child and/or his brother the opportunity to spend time with the father.  If I am wrong in arriving at this conclusion and there were occasions on which the mother failed to comply with the terms and provide the children, then I am satisfied that she had a reasonable excuse for doing so given her past experiences of exposure to the father’s behaviour while suffering mental ill health and her desire to protect the children from exposure to the same.  I am satisfied that she believed on reasonable grounds that her actions were necessary to protect the health and safety of the children and that the period during which, because of any contravention, the child did not see the father was no longer than necessary to protect the health and safety of the child.

28. In relation to the Application for Contravention filed by the father on January 2015, it alleges a contravention of the Order made by Forrest J in June 2012.  The term of the Order is that time occur at times agreed between the Independent Children’s Lawyer, the father and the mother.  There is no evidence of any agreement being reached between those parties and in the absence of the same, the application has no proper basis. 

29. For the reasons I have expressed in relation to both the Application for parenting orders relating to the child and the Applications for Contravention, I make orders in the following terms.

30. I decline to make an order in terms of paragraph 5 of that outlined in the Case Information document filed on behalf of the mother.  I consider that there is little point in making such an order because I am left with little doubt, on the evidence before me, that the father is unable to restrain or contain himself from making negative comments about the mother in the presence of the child, the child.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 1 April 2015.

Associate:                 

Date:    1 April 2015