Mackham and Mackham

FAMILY COURT OF AUSTRALIA

MACKHAM & MACKHAM

[2013] FamCA 212

FAMILY LAW – CHILDREN – Sole parental responsibility – Where mother made an application for relocation – consideration of the best interests of children – Section 61DA of the Act considered – Where the presumption of equal shared parental responsibility is rebutted – Where it is appropriate for father to spend no time with the children – Where mother’s application for relocation is granted.

Family Law Act 1975 (Cth) ss: 60B; 60CA; 60CC; 61DA; 65D; 65DAA.

Taylor v Barker (2008) 37 Fam LR 461; MRR v GR (2010) 240 CLR 461

APPLICANT:

Ms Mackham

RESPONDENT:

Mr Mackham

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission NSW

FILE NUMBER:

PAC

3871

2009

DATE DELIVERED:

5 April 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

17 September 2012,
12, 13, 15, 16 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie

SOLICITOR FOR THE APPLICANT:	Armstrong Legal
SOLICITOR FOR THE RESPONDENT:	AC Dunstan Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Shea
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid Commission NSW

Orders

That all existing orders in relation to the children, B, born on … December 1999, and C, born on … January 2002 (“the children”) are discharged.
That the mother has sole parental responsibility for the children.
That the children live with the mother.
That the father is restrained from approaching or contacting the children at any place and by any means subject to Order 7.
That the father is restrained from approaching the mother at any place or contacting her by any means other than by email at an address nominated by her in writing.
That the father is restrained from approaching or contacting the children’s health care professionals, staff at their schools or any persons associated with their extra curricular activities.
That the father is at liberty to send letters and cards to the children at a postal box address which the mother shall nominate in writing.
That the mother pass on to the children letters and cards from the father.
That the mother is authorised as follows:
(9.1)to take all steps necessary to obtain and maintain current passports for the children without the consent of the father; and
(9.2)to take or send the children outside of the Commonwealth of Australia without the consent of the father.
That the mother provide to the father, at her expense, copies of all of the children’s school reports.
That the mother is authorised to relocate the children’s residence to D Town in the State of New South Wales.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations 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 documents produced on subpoena be returned to the person who produced the same.
That all outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mackham & Mackham 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 SYDNEY

FILE NUMBER: PAC 3871 of 2009

Ms Mackham

Applicant

And

Mr Mackham

Respondent

REASONS FOR JUDGMENT

The proceedings

Mr Mackham (“the father”) and Ms Mackham (“the mother”) are the parents of three children:
Ms E born in 1994 (18)
B born in December 1999 (13)
C born in January 2002 (11).
These proceedings concern parenting arrangements in respect of B and C. Both parties abandoned their applications for orders in relation to Ms E, given that she is now eighteen years of age.
The applicant mother sought orders as set out in her Amended Application filed on 15 March 2012. The effect of such orders would be that she has sole parental responsibility; the children live with her and that they spend no time nor have any form of communication whatsoever with the father. The mother proposed injunctive orders which would prohibit the father from contacting her or Ms E, other than by email at an address nominated by her (the mother).
Overall the Independent Children’s Lawyer (“the ICL”) supported the mother’s position. She submitted, however, that the children should receive cards and letters from the father.
The father sought orders as set out in a Further Amended Response filed on 9 November 2012, subject to a variation contained in a handwritten document dated 16 November 2012. Essentially the father proposed that the parties have equal shared parental responsibility and that the children live with the mother. B and C would spend time with the father in a graduated arrangement commencing with four hours once per month and progressing to three out of every four weekends and half of all school holidays.
In an affidavit sworn on 24 October 2012, some three weeks prior to the commencement of the trial, the mother deposed that she had sold her home at Sydney Suburb F and proposed to move with the children to “a location approximately three to four hours drive from Sydney”.The mother failed to identify the place of the proposed relocation until she was required to provide a proof of evidence setting out particulars on the first day of the trial. In that document (Exhibit 2) the mother disclosed that she wished to relocate with the children to D Town on the South Coast of New South Wales. Ultimately, the father consented to the mother moving with the children to any location between Newcastle and Wollongong.

The Evidence and Witnesses

The applicant mother relied on her affidavits sworn on 1 June 2012 and 24 October 2012. She caused subpoenae to give evidence to be served on her treating psychologist, Mr G, and Ms H, a former neighbour and personal assistant to the father. Mr G swore an affidavit on 11 September 2012 and Ms H provided a proof of evidence (Exhibit 3). The mother, Mr G and Ms H gave oral evidence in her case.
The respondent father relied upon his affidavits sworn on 16 August 2012, 29 October 2012 and 31 October 2012. He relied further on affidavits sworn by his current partner Ms J sworn on 16 August 2012; his son, Mr K sworn on 14 August 2012 and a friend, Mr L sworn on 13 August 2012. With the exception of Mr K, these deponents gave oral evidence in the case for the father.
I had the benefit of a report dated 14 November 2011 and oral evidence from the single expert, Dr M. I found Dr M’s evidence to be well considered, even handed and of considerable assistance.
For reasons which will become apparent below, I prefer the evidence of the mother to that of the father wherever there is conflict or inconsistency. The father’s affidavit evidence was demonstrably untruthful in several respects. As well, the father and his partner, Ms J provided false information concerning their living arrangements to Dr M.

Background

The father was born in 1965 and is now 47 years of age. The mother was born in 1963 and is currently aged 50 years. The parties began to live together in 1988 and married in 1993. They separated in 1999 and were divorced in August 2003.
At the time of the parties’ separation Ms E was four years of age and the boys were yet to be born. It seems that C’s conception resulted from occasional sexual encounters between the parties after the separation, which the mother asserted were a consequence of coercion by the father.
There was a dispute between the parties as to whether the father used illicit drugs, drank alcohol to excess and/or had connections with criminal activity from a late stage in the parties’ cohabitation to the present date. I will examine the evidence relevant to those issues below in the reasons.
In 2003 two sets of parenting orders were made by consent. On 9 September 2003 the parties consented to interim orders which provided that the children live with the mother and spend time with the father on alternate Sundays and each Father’s Day and Boxing Day. On 18 November 2003 the parties consented to final orders which provided, inter alia, that the children’s time with the father increase to alternate Saturdays and Sundays and block seven day periods during each July and Christmas school holiday.
It was common ground that the children continued to spend time with the father only on alternate Sundays after the orders of 18 November 2003. The mother’s uncontradicted evidence was that Ms E stayed overnight with the father on two occasions while he was living with his former wife, Ms N. According to the mother B and C spent one overnight period with the father in about 2008.
Ms E ceased spending time with the father in March 2009 and has since not communicated with him in any manner. B and C stopped spending time and communicating with the father in approximately July 2009.
The father has two children from his first marriage, Ms O and Mr P, who are presently aged about 26 and 24 respectively. He also has a child, Q, born in February 2006 and is now seven years old, from his marriage to Ms N. Pursuant to orders made by consent on 20 July 2009 the father and Ms N share Q’s care on an approximately equal basis.
The father and Ms N began a relationship in 2000. They separated on 3 July 2009 when she removed furniture and household goods from their matrimonial home without prior notice to the father. On discovering that she had done so, the father unilaterally took Q from her childcare centre and retained her until Ms N secured a recovery order. Police officers were involved in attempts to retrieve Q from the father, in circumstances which can only have been highly distressing to her. I will refer in detail to these events below in these reasons.
On 24 September 2010 the father began to live with his current partner, Ms J. They met at TAFE on 1 February 2010 and began a romantic relationship on 21 June 2010. Ms J’s husband of nineteen years, Mr J, tragically died in a workplace accident in 2009. Ms J has three children, Mr S, T and U who are aged about 21, 16 and 11 respectively.
During the trial it emerged that the residential arrangements between the father and Ms J were not as the father deposed in his affidavit. As noted, he and Ms J both gave false information concerning their cohabitation to Dr M. I will explore those arrangements below in these reasons.
The parties were at issue as to the quality of the time the children spent with the father after the orders of 2003. The mother alleged that the father was inconsistent in spending time with the children and that they complained to her that he did not interact with them while they were with him. According to the mother, the children complained to her that he slept frequently and drank alcohol to the extent that Ms N was required to drive them home.
The father alleged that the mother frustrated the children’s time with him and offered various reasons why he returned them early and was absent when they arrived at his home in the morning. Inter alia, the father alleged that the mother arranged appealing activities for the children which overlapped with their scheduled time with him. I am inclined to accept the mother’s evidence on this issue in preference to that of the father.
On 26 March 2009 Ms E’s favourite teacher told the mother that she had begun to self harm because she was worried about the father and the situation in his home. At this time, there were difficulties in the relationship between the father and Ms N. It was at this point that Ms E ceased to spend time and communicate with the father. The mother arranged for Ms E to receive professional assistance from a psychologist, Mr V. I refer below to the father’s attempts to gain information from Mr V without Ms E’s knowledge or consent.
The mother deposed that she received a text message on 5 September 2009 from the father which read “I am dying now”.The father deposed that on 5 September 2009 he sent a text message to the mother “in which I informed her that I had overdosed on Valium and that her action in removing the children’s contact with me was one of the primary reasons for my doing so”. In his oral evidence the father said that he in fact attempted suicide in October 2009.
Notes tendered in evidence from W and X Hospitals (Exhibits 16 and 17) referred to the father being admitted on 5 October 2009 after attempting suicide by an overdose of drugs. These notes indicated that the father was admitted to W Hospital and scheduled but left the Emergency Department contrary to the instructions of staff. He was detained by police and taken to the Mental Health Unit at X Hospital. He was again scheduled and physically restrained at times during his five day stay in this facility. I will refer to these events in greater detail below in these reasons.
There have been several chance encounters between the father and the children in the Y area. The parties differed in their accounts of the children’s reactions to these meetings. According to the mother, C was fearful and Ms E and B were uncomfortable and reluctant to interact with the father. He maintained that the children showed no difficulty or opposition to his approaches to them. I am inclined to accept the evidence of the father over that of the mother on this issue.

Approach to these proceedings

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) provides that the objects of Part VII are to ensure that the best interests of children are met and sets out how that purpose is to be achieved (s 60B(i)); the principles which underlie these objects (s 60B(2)) and bestows a specific right on an Aboriginal or Torres Strait Islander child to enjoy his or her culture (s 60B(3)).
Section 60B provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
Section 60CA provides that, in deciding whether to make a particular parenting order, the Court must regard the best interests of a child as the paramount consideration. Section 60CC sets out two primary and thirteen additional considerations to which the Court is required to have regard when determining what orders are in a child’s best interests. I will set out and refer specifically to the primary and additional considerations below in these reasons.
Section 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility. Section 61DA(2) provides that this presumption will not apply if there are reasonable grounds for the Court to believe that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence or abuse of the child or another child who is a member of the parent’s family. Section 61DA(3) provides that this presumption may be rebutted by evidence which satisfies the Court that it is not in a child’s best interest for his or her parents to have equal shared parental responsibility.
Section 65D of the Act contains the Court’s power to make a parenting order. This section provides:
(1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
An order for a child’s parents to have equal shared parental responsibility carries consequences which are set out in ss 65DAA(1) and (2). If there is an order for equal shared parental responsibility the Court must consider whether it is in a child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent. If there is an order for equal shared parental responsibility and no provision for a child to spend equal time with each parent, the Court is obliged to consider whether it is in his or her best interests, and reasonably practicable, for the child to spend substantial and significant time with each parent.
There is no temporal definition of “substantial and significant time” in the Act. Section 65DAA(3) sets out certain requirements for a parenting arrangement fall within this definition. It is necessary for a child to spend time with a parent on weekends, holidays and at other times; for a parent to be able to be involved in the child’s daily routine and events which are of particular significance to the child and for the child to be able to be involved in events which are of special significance to a parent. The Court is permitted to take into account additional matters in determining whether the time which a child spends with a parent is “substantial and significant”: s 65DAA(4).
The concept of “reasonable practicability” is considered in s 65DAA(5) of the Act. The Court is required to take into account certain matters when determining whether it is “reasonably practicable” for a child to spend equal or substantial and significant time with each parent. These matters include, but are not limited to, the distance between the parents’ homes; the parents’ current and future capacity to implement an equal or substantial and significant time arrangement; the parents’ current and future capacity to communicate and resolve difficulties and the impact of such an arrangement on the child.
In Taylor v Barker (2008) 37 Fam LR 461 the Full Court (Bryant CJ and Finn J) considered the proper approach to cases which involve a proposal by one party to make a significant change to the place of residence of a child. Their Honours said, inter alia:
(i)When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:
U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36; Bolitho v Cohen(2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458, applied.
(ii)There was no substance in the argument that the magistrate had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue. A relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s.60CC matters; however, such a proposal now also needs to be considered in the context of s.65DAA. Given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s.60CC(1) provides that in determining what is in the child’s best interests, the court must consider the matters set out in subs (2) (primary considerations) and subs (3) (additional considerations) of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
…
(v)The legislation gives no guidance as to the stage at which a court should commence a consideration of the relocation proposal, but if having found advantages in “substantial and significant time” (or for that matter in “equal time”), the magistrate had then turned to consider the “reasonable practicability” of such an arrangement, some assistance would have been gained from s.65DAA(5). A consideration of these matters would have required the magistrate to evaluate the differing proposals of the mother and father and to consider whether “substantial and significant time” would be “reasonably practicable” if the mother were to relocate to Queensland. This would seem to be a logical path to follow but as the legislation does not prescribe an order in which the relocation proposals are to be considered, it was not possible to conclude that the magistrate’s decision was incorrectly reached.
(vi)The options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.

In MRR v GR (2010) 240 CLR 461 the High Court of Australia held that:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents.”
The High Court said further in MRR v GR (2010) 240 CLR 461:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist (18). If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the Ms Ne structure as sub-s (1) and requires the Ms Ne questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
The High Court held further:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

Significant factual issues in these proceedings

The proceedings involved a number of very substantial factual disputes, including but not limited to the following:
·the father’s alleged use of illicit drugs and excessive alcohol consumption during the parties’ relationship and to date;
·the father alleged involvement in criminal activity and intimidatory behaviour;
·the circumstances and events surrounding the father’s separation from Ms N and his unilateral removal of Q from her preschool;
·the circumstances surrounding the father’s suicide attempt in 2009; and
·the residential arrangements between the father and Ms J.

The father’s alleged use of illicit drugs and excessive consumption of alcohol

The mother deposed that the father drank alcohol on a daily basis and frequently became intoxicated during their relationship. She maintained that he also smoked marijuana on weekends and occasionally at his workplace from Monday to Friday. According to the mother, the father absented himself from the family home for periods of two or three days and up to two weeks from about 1996.
The mother alleged that the father was “frequently drunk” when he attended her home after their separation in 1999. She claimed that she asked him in 2000 “are you taking drugs?” and he replied “I’m just taking cocaine, ecstasy and a bit of speed”. The mother alleged that she made this enquiry of the father because she observed frequent and obvious mood swings on his part.
The mother kept a diary in which she made contemporaneous notes of some of her dealings with the father after their separation (Exhibit 15). Certain entries recorded complaints to her by the children of the father’s alcohol consumption when they spent time with him. For example, the entry of 10 January 2007 read:
[The father] took [C] out to a Thai restaurant for his birthday. Weird choice for a little boy. Apparently there were a few other people there that the kids did not know. [Ms E] says they drank heaps of beer and champagne and daddy could not drive home…
On 17 February 2007 the mother wrote in her diary, inter alia:
He talked to [C] for a couple of minutes then asked me if I could swap pick up and drop off tomorrow as he does not want to have to drive in the afternoon so that he can have a few drinks at [Q’s] first birthday party. I agreed to swap but not at all happy with the idea that while [the father] has an access visit from our kids and is responsible for them he plans to drink enough that he is unable to drive!!!
On 22 February 2009 the mother recorded in her diary:
… kids driven home by [Ms N] who said [the father] has been drinking during [Q’s] birthday party and was too drunk to drive them home.
In her affidavit the mother deposed to various complaints by the children from about 2007 as to the father’s alcohol consumption when they spent time with him. For example, she alleged that the children said to her “Dad drinks a lot of beer and gets cross” and “Daddy was drinking a lot today”. She deposed further that, between 2006 and 2009, the children said to her “Dad used to drive us around while drinking beer in the car” and “it’s really scary and he drives on the wrong side of the road”.
In her affidavit the mother deposed further that on 30 November 2008 the children returned home from spending time with the father and Ms E said to her “Dad slept on the lounge throughout the afternoon and was too drunk to drive us home so [Ms N] had to do it”.
The father denied that he drank alcohol to excess and claimed that an ex-boyfriend of the mother introduced him to marijuana in the mid 1980’s. He denied that the children had ever seen him in a state of intoxication.
I prefer the mother’s evidence on the issue of the father’s alcohol consumption to his denials. I can envisage no reason why she would concoct complaints to her by the children in her contemporaneous diary notes at a time when no litigation was on foot.
I am reinforced in my conclusion that the father drank alcohol to excess by the evidence of Ms H and the contents of hospital notes made at the time of the father’s suicide attempt in October 2009 (Exhibits 16 and 17). I found most unconvincing the father’s attempts to contradict the contents of the hospital notes as to his alleged drug and alcohol use. I refer to the contents of these records below in these reasons.
Ms H stated in a proof of evidence, which adopted on her oath, that she first met the father in approximately 2005. She lived next door to the home that he shared with Ms N and Q. In 2008 she became the father’s personal assistant when they were both employed by a company known as Z Pty Ltd. In about late 2009/early 2010 she ceased all contact with the father.
Ms H deposed that she had a number of conversations about illicit drug use with the father. She maintained that he said to her, inter alia: “I’ve just had cocaine” and “I’ve just had ecstasy” and “I’ve just had speed”. She deposed further that the father showed her some pot plants at the rear of his home and said “Look what I’ve got. Marijuana”. She maintained that he later said to her “I’ve moved the marijuana now to some land on the [AA Street] near [BB Town] ” and “I harvest the marijuana on Anzac Day”.
In her proof of evidence Ms H stated that she began to spend more time with the father when he separated from his wife, Ms N. She maintained that he often had dinner at her home with her and her children and that he usually consumed three cans of beer and a bottle of red wine on each of these occasions.
The father maintained that little or no weight should be attached to the evidence of Ms H because she had previously provided a written document in support of his case (Annexure F to the father’s Affidavit sworn on 29 October 2012). In this document, which was dated 13 November 2009, Ms H wrote, inter alia that “I have never ever witnessed [the father] using illegal drugs and in fact I’ve been privy to a conversation he once had with his son [Mr P] talking with him about the dangers of drugs and alcohol…”. In this document Ms H described the father in glowing terms and was critical of the mother.
Ms H largely retracted this statement in her proof of evidence. She explained that she experienced the father as “a very controlling person” who “intimidated and manipulated her”. In particular, she wrote in her proof of evidence “at times when I was dealing with [the father], I felt that he could make me believe that white was black. At times when I disagreed with [the father] or withdrew my support of him, [the father] became angry, more demanding and verbally abusive”.
Ms H’s evidence as to the nature of her interaction with the father is consistent with that of the mother, in terms of intimidation and manipulation on his part. Her evidence is also consistent with the opinions of Dr M as to the effects on his behaviour of the narcissistic personality disorder or traits which he identified in the father. I summarise this evidence of Dr M below in these reasons. For these reasons, I accept that Ms H was truthful in her evidence in these proceedings.
The notes of X Hospital (Exhibit 16) recorded a telephone conversation between a doctor and Ms N on 7 October 2009, during the father’s involuntary admission after his suicide attempt. Inter alia, the doctor recorded that Ms N said that the father drank “alcohol every day – one bottle of wine and a few beers”. The doctor’s notes further recorded that she “denied any drug use”. In his oral evidence the father said “What [Ms N] told the hospital about my drinking is incorrect”. I do not accept that Ms N provided incorrect information about the father’s alcohol consumption to hospital staff. Her description of the father’s drinking habits is consistent with that of Ms H and the children’s complaints to the mother. As appears below, the mother deposed to conversations with the father in which he admitted to the use of illicit drugs.
The notes of X Hospital refer to the father having taken Diazepam and cocaine prior to his admission on 5 October 2009. A copy of a schedule pursuant to the Mental Health Act2007 (NSW) issued in October 2009 at X Hospital referred to “over-dose of Antenox and cocaine”. When confronted with these reports in cross-examination the father said “I did not provide that information”. He said also “I don’t recall who provided the information about how many tablets I took”. I found this evidence most unconvincing, as I can envisage no source of this information other than the father himself.
For these reasons, I am satisfied, and I find, that the father has a history of excessive alcohol consumption and illicit drug use. The evidence did not enable me to make any findings as to his current use of drugs or alcohol.

The father’s alleged involvement in criminal activity and intimidatory behaviour

In her affidavit the mother deposed that, in or about 1998, the father said to her: “I’m involved with [organised crime]. I deliver drugs to them on a weekly basis doing a run from Sydney to Canberra”. The mother deposed that the father said further “I’m getting involved in strip clubs and money cleaning” and “the people I mix with make me feel important and we get into all the clubs”. She deposed that she queried his involvement in illicit drugs and he replied with the words “what’s wrong with that? I don’t see anything wrong with supplying drugs to people”.
The mother deposed further that she continued to observe “extreme mood swings” in the father in late 1999 and early 2000. She asked him: “Are you taking drugs?” and he responded “I’m just taking cocaine and ecstasy and a bit of speed”. The mother deposed that, in the same discussion, the father referred to a person called “Mr CC” who was arrested for drug smuggling by the Australian Federal Police. The mother maintained that the father said to her “the police have no power over that organisation. [Mr CC] will be released in a day or two” and “you should remember who my friends are if you ever cross me. I will make you and your family suffer”.
In his affidavit the father deposed that he met a man called “[Mr CC]”, who was an office bearer of a special interest group, in the course of his employment with DD Pty Ltd. He denied any involvement with criminal activity but said in cross-examination “on a professional level I was associating with strip clubs and bars when I was with [DD Pty Ltd]”.
The mother deposed to an alleged incident in mid 2001, around the time when she informed the father of her pregnancy with C. She claimed that the father approached her and said “I’ve borrowed money from [organised crime] I work with and I cannot pay it back. Give me some money and sell your shares”. The mother deposed that the father then said “I will kill you and your father if you don’t sell the shares” and “you will drop [Ms E] at school one day and will never see her again if you don’t do what I want”.
The mother went on in her affidavit to recount a conversation with the father several weeks later, during which he said: “they broke into my house last night and tied me to a chair. They used cigars to burn me up and down the underside of my forearms and on my knees. There are a lot of burns”. According to the mother, the father then said to her “they will come after you and the children next”. She deposed that she saw the father the next day and observed burns on his knees and the underside of his forearms. She contended that she drove him to W Hospital to receive treatment for these wounds.
The mother maintained that the father said to her “I told the doctor that I spilt a saucepan of oil on the floor which splattered me”. The father then said to her “I’m going to hide in the snow with some friends” and thereafter she did not see him for approximately six months. The mother maintained that she gave the father money around this time but did not produce any corroborating evidence.
The father denied that he received any money from the mother around the time of this alleged incident. He suggested that he sustained the burns when he spilt hot oil during a cooking accident. He maintained in his oral evidence that his son Mr P saw “black and circular marks on the lino after my burns”. He deposed further in his affidavit that “medical records at [W] Hospital will confirm that the first and second degree burns that I received are consistent with oil burns”. The father said that he did not recall whether the mother drove him to hospital to receive treatment for these injuries.
The father’s son Mr P gave evidence in his case but made no reference whatsoever to this alleged incident. The records of W Hospital in relation to the father were produced pursuant to a subpoena issued by the mother’s solicitor. Documents relating to the father’s suicide attempt in October 2009 were tendered in evidence as Exhibit 17. No documents in relation to the father’s burns were tendered from this file on his behalf, despite the claim in his affidavit that these records would corroborate his version of these events.
In her affidavit the mother deposed to threats which the father allegedly directed at her in the period leading to the finalisation of their property settlement in 2003. She claimed that he sent text messages to her which included the following:
Consequences…
What goes around comes around – ten fold…
Fucking bitch. I’m going to enjoy fucking with your family.
This will cost U more than just money…
I don’t GIVE a fuck what they (the court) say. That’s final.
Far too late I’ve been very busy
Cease the use of my family name you whore.
The mother deposed further that the father made threats in relation to the children, including the following:
You won’t know where and you won’t know when but one day I’ll take them and you will never see them again.
You can have your day in court but I will have mine out of it.
According to the mother the father also made threats against the life of herself and her father, including the following:
I will have someone kill your father.
I am on my way to Canberra to arrange a hit man
There are people out to kill you.
The mother deposed that in mid May 2003 she heard a car in her driveway at approximately midnight. She looked out the window and saw that a car which she did not recognise was parked in her driveway. She telephoned the father and said “do you know who’s in the car in my driveway? Why are they there?” According to the mother the father responded “I know who they are and why they are there. Do you want me to make them go away?” The mother said “yes” and, after approximately five minutes, the car drove away from her home.
The father denied that he made any such threats to the mother and that he had any involvement with the car parked in her driveway. He deposed that, on one occasion, he answered the telephone late one night when he and his son Mr P stayed after visiting the children. He deposed that, thereafter, the mother received no more “nuisance calls”.
There was some corroboration for the mother’s evidence of the father’s threatening text messages contained in Exhibit 6, which was a document witnessed by a Justice of the Peace on 1 August 2003. The document set out a number of alleged text messages which read:
I don’t GIVE a fuck what they say. That’s final bitch 19/05/03 11:28:40
Cease the use of my family name you whore 21/07/03 10:21:25
It did, I recognised it and have taken care of it…. 19/06/03 20:59:26
Consequences… 5/09/2003 07:31:33
What goes around, comes around – ten fold. 8/05/03 16:05:44
Far too late. I’ve been very busy.. 30/5/03 16:28:55
Whore 15/07/03 19:22:23
Ps whore 30/5/03 16:26:02
Throw them in the bin. I will not be making any further payments. 02/06/03 13:33:59.
This document concluded:
The above messages are a true and accurate record of the messages sent to [the mother’s] mobile phone.
Dated this 1st day of August, 2003. [NN Town]
[Ms EE]. NSW
There was no suggestion put to the mother that she fabricated this document.
In her affidavit the mother deposed that the father said to her, during the month leading up to the property settlement: “If you do the right thing by me financially, I will do the right thing for the children” and “I’ll make things hard for you if you don’t give me what I deserve”. She claimed that “in late October 2003 I also entered into a property settlement with [the father] on terms favourable to him despite what might have been my legal entitlement”.
It is impossible for me to form any view as to the justice and equity of the orders for property settlement made in 2003. It seems, however, that a Deputy Registrar was concerned that the orders may not have achieved justice and equity for the mother. A bench sheet dated 30 October 2003 (Exhibit 13) stated inter alia:
4. I note that pursuant to the orders the W appears to be receiving less than might otherwise, however, I note the W has received independent legal advice as to her entitlements and she asks that these orders be made.

I am satisfied, and I find, that the father told the mother that he was involved with criminals and nefarious activities. The evidence did not establish that his involvement extended beyond attendances at bars and strip clubs in the course of his employment. In my view, it is more probable than not that the father made these statements to the mother so as to coerce, intimidate or manipulate her into acceding to his wishes. I am satisfied, and I find, that the father made threats to the mother as she alleged in her affidavit for the same purposes of coercion, intimidation and manipulation. These findings are of significance, as explained below, in the context of the expert evidence of Dr M.

The circumstances surrounding the father’s separation from Ms N and removal of Q from preschool

The father deposed that he returned to the home he shared with Ms N and Q on 3 July 2009 and found that she had removed a large proportion of the contents. He obtained information from Ms N that Q was at FF School. He then telephoned Ms N and they had this conversation:
I said [Q] and I are going away for a short period until orders can be made by the court. She said where are you going? I said away but I’m not telling you where but I’ll make sure that you can speak to [Q] every day.
The father contended that he informed DoCS “of my circumstances” after he collected Q from preschool and that he instructed his solicitor to negotiate parenting orders with Ms N. He maintained that “orders were finalised within a very short period of time”. The father deposed that he took Q to GG Town for seven days and then stayed with her at the homes of friends for an unspecified period.
The mother annexed to her affidavit sworn on 1 June 2012 a six page email that the father sent to a number of people, in which he set out his version of those events. The father “did not deny” that he sent this email to multiple recipients. Notably, the father signed this email “[The father’s first name] (on behalf of Q and [the father’s first name])”.
In this email the father levelled serious criticisms at Ms N, including allegations that she neglected Q and made misleading statements to the police to the effect that he posed a physical threat to her (Ms N). The father wrote inter alia “[Ms N] had already begun a vicious attack on my personal assistant [Ms H]. She did so out of jealousy over mine and [Ms H’s] professional relationship…” Notably, despite these serious allegations as to the character and parental capacity of Ms N, the father consented to orders that they share the care of Q in an equal time arrangement on 20 July 2009.
In this email the father referred to an incident between himself and Ms N some months earlier, during which he claimed that “I was left in a position in which I needed to defend myself from her verbal and physical assault”. He wrote further in the email “in defending myself from [Ms N’s] attack I did strike her”.
A somewhat different picture of that incident emerged in cross-examination of the father with reference to records of the New South Wales Police Force. The father then gave this account of the incident between himself and Ms N:
She was affected by alcohol, very irate. I was affected by alcohol because you only need one mouthful. I continued to drink as the incident progressed. I had had a couple of beers by the time I defended myself.
[Ms N] came at me with a Bar.B.Mate. In defending myself I struck her on the side of her face with a closed hand. I knocked her backwards and she was concussed. I immediately went to her assistance. She was knocked back about one metre. She suffered bruising. She caused me to defend myself. I had to block an oncoming weapon with my left arm and simultaneously strike her with my other hand.
Despite this graphic account of the incident, and the father’s description of himself as “a martial arts expert”, he said “I do not accept that I assaulted her”. In my view, it is absolutely clear that the father perpetrated an assault upon Ms N on this occasion. The father conceded “it is possible that [Ms E] saw bruising on [Ms N’s] face”. There was no issue that Ms E shared a close relationship with her stepmother, thus she would have been upset if she saw injuries to her which were inflicted by the father. It seems likely that this incident contributed to Ms E’s decision to cease spending time and communicating with the father.
A COPS entry dated 3 July 2009 (Exhibit 14) recorded that Ms N informed police that the father had taken Q from preschool and sent text messages to her saying “I have [Q]”, “You had better call me soon, you have done something really foolish. You don’t want me to reciprocate”. This COPS entry noted that police officers attempted to telephone the father over several hours to enquire as to the wellbeing of Q but he refused to accept all of these calls. The father admitted in cross-examination that he terminated every call which he received from police officers.
This COPS entry continued that police located the father, by tracking his mobile telephone, at his mother’s home in HH Town. An inspector spoke to the father by telephone before police attended the home of Ms Mackham Senior. The COPS entry recorded that the father said to the inspector “you are a cunt” and “your police station is abhorrent”. The father admitted in cross-examination that he directed these offensive remarks at one Inspector JJ. He offered no explanation for this unsavoury conduct.
This COPS entry continued that several police cars arrived at the home of the father’s mother at approximately 7.30 pm on 3 July 2009. Officers requested on no less than twelve occasions that the father open the door to enable them to check on the welfare of Q. The father refused them entry and officers ultimately kicked down the door and arrested him. Q was placed in the care of the paternal grandmother and the father was released from custody. He took Q to GG Town, without the consent of her mother, on the following day.
In cross-examination the father said that he refused to open the door as “NSW Police had no jurisdiction”. He said further:
I don’t take responsibility for the fact that [Ms N] told a pack of lies to the NSW Police. I take no responsibility for the fact that [Q] witnessed Police kicking the door in.
In my view, there is no excuse for the father’s conduct on this occasion. It is disturbing indeed that he purported to absolve himself of all responsibility for these serious events.
In cross-examination the father admitted that he sent a text message to the mother and Ms E at 4.00 am on 4 July 2009, that is, the night after he took Q from her preschool. He said “I intended to reassure [Ms E]”. I am at a loss to appreciate how Ms E could have derived any reassurance from the father’s actions.

The circumstances surrounding the father’s suicide attempt in 2009

In his affidavit, the father deposed:
100.On or about the 5 September 2009 I sent a text message to [the mother]. In this text message I informed her that I had overdosed on valium, and that this was in direct connection with her preventing me from spending time with the children.
101.I am unaware of any communication between [the mother] and my mother that day. However I am aware that someone contacted the NSW Ambulance authorities who were subsequently sent to my home.
102.I was transported by ambulance to [X Hospital] where I was admitted to the Mental Health Unit.
103.I was released from [X Hospital] on or about 11 September 2009. I was released without the need for ongoing treatment. The doctors informed me that I had suffered from situational depression caused by a set of circumstances that were life changing. I maintain that [the mother’s] decision to prevent the children from having a relationship with me triggered this depression.
This account sits most uncomfortably with the contents of hospital notes and records of the NSW Police Force. The father failed to disclose that he was in fact taken initially to W Hospital and left the Emergency Department against the instructions of medical staff and whilst subject to a schedule pursuant to the Mental Health Act 2007 (NSW). He failed to disclose that he was then located by police and taken by ambulance to the Mental Health Unit at X Hospital.
The father made no mention in his affidavit that he was again scheduled pursuant to the Mental Health Act 2007 (NSW) and physically restrained while an involuntary inpatient at X Hospital. Contrary to his assertion in his affidavit that he was discharged “without the need for ongoing treatment”, the notes of X Hospital recorded that he was “discharged on 9 October 2009 with plans for a follow by a psychologist and GP”.
The contents of nursing notes in the X Hospital file fly in the face of the father’s assertion that he attempted suicide because the mother refused to allow him to spend time with the children. These notes indicated strongly that the father’s suicide attempt was triggered by his separation from Ms N. For example, the nursing notes contained the following entries:
5/10/09… Refusing to talk before his x-partner visits him in hospital…
5/10/09… [Patient] remains restrained and on level 2 obs, obs as charted, refusing to eat & drink, neighbour still in attendance, spoke [with] neighbour & she voiced concern that if [patient] discharged he will attempt to kill himself again as he got a payout from work, all money gone, wife left [with] child and ransacked house, [patient] now has no money, no wife & the bank is going to for-close on the house, apparently [patient] just told neighbour he would rather be dead, … [doctor] aware of this information.
6/10/09Patient still refuses to eat/drink or talk to his psych reg unless we make his wife come in. He is aware that will not happen. He said he did not care. he would continue to not eat/drink or talk to psych reg – and he said he would get his way and die. He keep [sic] ringing his family on mobile.
8/10/09…
·Wants his wife to come back.
·Do [sic] not want to talk till his wife comes back.
·Refuses to eat if his wife do [sic] not comes back.
·Refuses to drink if his wife do [sic] not comes back.
In cross-examination the father was taken to his sworn assertion that his suicide attempt was triggered by the mother’s alleged refusal to allow him to spend time with the children. He said “I disagree that my primary purpose for the suicide attempt was because [the mother] was stopping me from seeing the children”. He said further “I wanted to discuss with [Ms N] my time with [the mother] and my children”. There was nothing whatsoever in the hospital notes which supported this proposition. The father conceded in cross-examination that he refused to eat, drink or talk to the Psychiatric Registrar “unless they made Ms N come in – they refused”.

Residential arrangements between the father and Ms J

In his affidavit sworn on 29 October 2012 the father deposed “I now live at [KK Street, LL Town]”. He added:
17.I have remained living within the [W District] since the sale of [Ms N] and my former residence at [MM Town]. I now reside with friends at [KK Street, LL Town] but travel daily to spend time with my girlfriend [Ms J] and her two younger sons, [T] (aged 10) and [U] (aged 16), at their home in [NN Town]. [Ms J’s] residence is within 20 km of where the children the subject of these proceedings reside.
…
19.Since early 2010 I have moved a number of times. On each occasion that I file court documents the address disclosed in those documents is correct…
In her affidavit, Ms J deposed that she and the father began to live together on 24 October 2010 and cohabited for approximately ten months in Western Sydney. In his oral evidence the father said that he thought that he and Ms J stopped living together in July 2011, when he began to rent a room in the home of friends at OO Town.
When Dr M interviewed the father on 19 September 2011 he said that he was “living with [Ms J] and her sons”. He conceded in cross-examination that he did not tell Dr M that Ms J owned a home at NN Town and apparently allowed him to assume that her property was located at OO Town. Dr M reported that Ms J told him that she and the father lived together with her sons at her home at OO Town.
In cross-examination Ms J said “I told [Dr M] that I lived at [OO Town] when I really lived at [NN Town] because [Ms N] was causing a lot of trouble”. She added “I am not sure why I told [Dr M] that I was living with [the father]”. It seems clear that Ms J was untruthful with Dr M in a perceived attempt to promote the father’s interests.

The best interests of B & C: section 60cc considerations

Section 60CC(2): Primary Considerations

The first primary consideration is the benefit to the children of having a meaningful relationship with each of their parents.
B and C have now spent no time with the father since July 2009, a period approaching four years. The parents separated before each of the boys was born and it was common ground that they spent time with the father erratically between 2003 and 2009. I am inclined to accept the mother’s evidence that the children spent time with the father irregularly due to life choices which he made from time to time, rather than interference or obstruction on her part.
Dr M assessed that the father failed to engage with the children when they spent time with him between 2003 and 2009. He reported:
255.Consistent with the above, the impression which I gained from both boys was one of lack of relationship with the father, rather than the loss of relationship. In contrast to the grief and intensity in [Ms E’s] dialogue, the boys spoke of the father almost in the abstract, as a man whom they did not know, and without a sense of loss.
256.In addition to the father’s disengagement, both boys spoke with some intensity about the father’s “yelling” during contact visits. They both clarified that this did not involve violence or threats of violence, but involved dad “growling” ([B]) and yelling very loud. This description is not dissimilar to the father’s current partner’s description of how the father disciplines the children currently: “he changes his voice, and they know. He says their name, but deeper”.
…
258.During the boys’ contact visits, the father’s disciplinary method significantly disrupted his relationship with the boys, such that they feared him and did not want to be in his proximity. In my view, this is because there was no foundation of engagement with the children. In addition, rather than pride, the children experienced abhorrence from the father, as an extension of his abhorrence of the mother, as reflected in the words of the family consultant report after interviews in January 2010: “youngest child is quite rude. I am abhorred by his lack of manners. [Ms E] is quite judgemental. I am quite concerned…
The evidence of Dr M satisfied me that there currently exists no meaningful relationship between the boys and the father. A significant issue in the proceedings was whether they would benefit from having a meaningful relationship with the father in the future, having regard to certain notes inherent in any attempt to bring about that situation. I refer below to these risk factors.
Dr M identified some possible benefits for the boys in maintaining a level of contact with the father. He reported:
305.I am concerned that the boys may not have the maturity or understanding to appreciate the possible developmental benefits of maintaining some contact with their father, even if that contact my [sic] be at times challenging or uncomfortable. These developmental benefits include:
305.1Sometimes the imagined is worse than the actual. [C] found this, when his fear of bumping into or being taken by his father actually reduced after he had a conversation with his father in the chicken shop.
305.2Maintaining some “warts and all” contact with the father reduces the risk of one or both boys responding to any future tensions or disruptions in the mother-child relationship by idealising the father and “splitting” over to live with dad without any realistic appraisal of options.
305.3It is possible that the boys may obtain the confidence and authority to fend for themselves in the father-son context earlier than they currently expect. This could be achieved by setting firm boundaries on any expected minimum contact, and may also result from maturing in the boys and possibly the father.
305.4Some minimum current contact would allow the father to realise his current commitment to his role as father. Unfortunately, the boys’ previous contact was during a period when he was prioritising other roles.
305.5the father-son bond may aid development in a certain area such as sport or a vocational interest, particularly with regard to the father’s strengths in stretching a child’s capacity.
A highly significant issue in the proceedings was whether a meaningful relationship between the children and the father could now be established without jeopardy to their security in the mother’s family unit. I refer below in these reasons to the evidence of potential risk to the mother’s parental capacity and the stability of her family unit, if the boys were to resume spending time with the father.
The second primary consideration is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It seemed to me that the evidence established that the father has engaged in family violence. I accept the mother’s evidence the father threatened her with violence, shouted at her, broke furniture and household contents and called her abusive and offensive names during their relationship and after the separation. I accept the mother’s evidence that the father hit two year old Ms E with his fist on the side of her head, when she accidentally knocked over his glass of beer. I was left in no doubt that the father perpetrated a physical assault upon Ms N and it seems likely to me that Ms E saw her injuries.
I thus find that the father has engaged in family violence. Dr M specifically addressed the risk to the children from exposure to abuse, neglect or family violence in the father’s current household. He opined:
299.My impression is that the children are at low risk of abuse, neglect or family violence in the father and his partner’s current energetically positive family environment. The father’s narcissistic personality traits render him vulnerable to future emotional abuse of the children, or to neglect or exposure to coercive family interactions including family violence. This risk is difficult to quantify, and will depend upon the father’s development personally and relationally, the progress of the father’s current partner relationship, his management of his alcohol consumption, and the boys’ adaptation to the father.
300.There is a risk that the children might be exposed to a form of long-distance emotional abuse or family violence, if the orders give the father opportunity to engage in coercive, threatening or intrusive behaviour toward the mother.

Section 60CC(3): Additional Considerations

Both boys told Dr M in clear terms that they do not want to spend time with the father. B said that he might want to see the father when he was 19 or 20 years old and, if he has to spend time with him now, he “would want other people to be there, nice people who might stick up for [him] or back him up if need be”. B complained to Dr M that “he never did anything” at the father’s home and that he yelled at them and made C cry by growling at him.
C also complained to Dr M that the father yelled at him and treated him unfairly in comparison with B and Ms E. C told Dr M that he had seen the father at a local chicken shop and that he “was nice”. He said that he “wasn’t scared now” that the father would “grab him and run away with him”. Nonetheless, C told Dr M that he does not want any contact with the father until he is “probably about 24” and, if he had to see him now, he would prefer B and Ms E or Ms J to be present.

Dr M reported that the mother expressed concern that she would not be able to persuade C to spend time with the father. The mother informed Dr M that C told her that “he will run, jump fences if he needs to, will leave school early if he is to be picked up from school”.
Dr M considered that the boys’ stated views should be afforded “some weight”. He assessed that their views were “based on the boys own experience of the adequacy of their life with their mother and past experience of contact with their father”. I agree with Dr M’s opinion and conclude that B and C’s views should be respected and accorded considerable weight. The boys’ stated views, however, should not be decisive of the issue whether they spend any time with the father in the future.
As noted, Dr M assessed that B and C currently have no relationship with the father. He had no doubt that the mother is the primary attachment figure for all three children. Dr M assessed that the children “trust the mother’s wisdom” and that she is able to “set boundaries and enforce expectations”. He described the mother as “an above average parent”.
The father spoke to Dr M about his attitude to payment of child support. Dr M reported “he has a bee in his bonnet regarding paying child support to women who drag him through the courts. He is disgusted by how they behaved and the effect of that behaviour on his and their children”. The father told Dr M that, for these reasons, he is reluctant to take on paid employment.
A significant issue in the proceedings was the effect on the mother and her parenting capacity, if B and C commence spending time with the father. Her treating psychologist, Mr G, reported that the mother told him that she would not be able to cope with this outcome. In answer to questions from the ICL, Mr G said that the mother’s stress levels rose in the three months prior to the trial. He said also that the mother continues to suffer from nightmares, walks in her sleep and yells and strips sheets from her bed during the night. He said that she becomes “quite upset and distressed” at the prospect of the children spending time with the father.
In his report, Dr M opined that the mother “has developed resistance” and “would be able to maintain strong parenting of the children even if the father did make use of a resumption of contact to resume negative behaviour towards the mother or set up a competition for parental status or for the boys’ affection”. Having taken into account the evidence of the mother and Mr G as to her ongoing symptoms, however, Dr M modified his view to some extent. He said “this highlights at least her mental state has not improved and may have worsened”. He added “the ongoing symptoms perhaps mean that the need to protect the mother’s mental health takes on a greater significance”. He said further “I think for these children the mother having power and strength is very important”.
As noted, the mother proposes to move to D Town on the NSW South Coast with the children. One consequence would be that the parties’ homes would be some 3 hours and 15 minutes driving time distant from each other. The mother deposed in her affidavit sworn on 24 October 2012 that she would facilitate the children’s attendance at any periods of time which may be ordered with the father. In her oral evidence, she specifically said that she or her agent would undertake all necessary driving.
I see no reason for concern that the children would fail to cope with a change to residence at D Town rather than in the W district. As noted, Dr M assessed they have a very strong and positive relationship with the mother. In addition, their maternal grandparents have moved to an aged care facility in the D Town area.
In his oral evidence, Dr M opined that “these kids presented as quite well balanced. Their sense of self is not defined by a particular sport, for example. The disruption of a relocation is outweighed by positive considerations”.
The mother appeared to have made all appropriate enquiries concerning the boys’ educational needs and potential extra curricular activities in the D Town district. She proposed that they attend PP School, which is 200 metres from a home which she proposes to rent from her brother in law. The boys presently play rugby union but they have indicated to the mother that they are happy to switch to league, which is the code played at PP School. The new home is close to a beach and they have told the mother that they are keen to become involved in junior lifesaving.
In her oral evidence, the mother said that she intends to return to the W area to keep in touch with friends approximately every six weeks. She said that several people have offered accommodation to herself and the children.
Another very significant issue in the proceedings was the father’s capacity to provide for the children’s emotional needs. Dr M assessed that he probably has a narcissistic personality disorder. In his view, the father “at minimum” has strong narcissistic personality traits. Dr M explained that the distinction between a narcissistic personality disorder and traits is a matter of degree and opined that this difference is “not essential to the matters before the Court”.
Dr M identified that the father “shows core features of narcissistic personality disorder, these being grandiosity, need for admiration and lack of empathy”. In my view, the evidence contained numerous examples of such conduct on the part of the father. In his oral evidence, Dr M referred to the prospect that the father’s behaviour may involve “coercion, intimidation and antisocial stuff” in addition to “benign narcissism”.
Dr M identified in his report a number of examples of the father’s grandiosity. He wrote:
276.In terms of grandiosity, the father will exaggerate his achievements or talents, or give himself a special status in comparison with others. This was seen in the difference between his own and his friend [Mr L’s] versions of their relative roles in their school years, and in his appreciation of the fact that his ex boss’s widow had grieved him more than her ex-partner. He believes the [sic] he as a parent turned [Mr P] around, that [Ms E] would have been made to behave by coming to live with him, that [Q] will inevitably choose to be with him, and that the subject boys will probably do so in time if contact restarts. He showed evidence of fantasies (idealised constructions) of success and power in the workplace and in raising [Mr K], and ideal love, with his firstborn daughter with whom he shared secret rhymes and with whom he never went to bed without kissing, his rescue of [Ms J’s] train-wreck to form a relationship where he makes her smile each day, they “just fit”, don’t argue and are always together, and his intensively hands-on engagement with the childrens’ [sic] shift from “zombies” to “come good.
In his affidavit, the father deposed that he enrolled T at QQ School in 2011 and that the boy is “settled … and performing well”. A somewhat different picture emerged from the records of QQ School (Exhibit 10).
The school records revealed that a teacher observed a fight between T and another student on 20 October 2011. This teacher noted:
I was in the PE staffroom and heard a loud bang and a lot of noise coming from the language open area. I ran outside to see [T] and [RR] having a punch up. [Mr SS] was trying to break the fight up, and I came and assisted, however due to the extreme violent nature of this fight I was reluctant to step in the middle of the fight, so I grabbed [T’s] arm to stop him hitting [RR]. This fight was extremely violent, [T] had [RR] pushed up against the wall of LA 4 and I would say that he got approx five hits to [RR’s] face before we were able to stop the fight. [RR] was fighting back as well, however [T] was extremely violent and hit [RR] many times. It took myself, [Mr SS], [Mr TT] and [Mr UU] to stop the fight…
On 30 April 2012, a teacher made notes of another fight between T and a fellow student. These notes read:
I rounded the corner near the dam and found [VV] and [T] hitting each other with significant force using their fists. I called out to them to stop. At this point [WW] and another student intervened and pulled the two of them apart. I sent a student from the playground to get a deputy. [WW] moved [VV] towards the dam. [VV’s] shirt was very torn and he removed it. He was bleeding significantly from the nose and was requested to sit down repeatedly – he did not comply. His chest showed a large number of red welts. [Ms XX] was checking those on playground duty and I asked her to come over. During this time I was concerned that both boys would attempt to recommence their fight. [Mr YY] arrived and I was able to find the second boy involved. They were both removed from the playground …
The School Principal’s comments in T’s report for Semester 1 2012 read:
Although capable, [T] continues to allow distractions to hinder his progress. I urge [T] to follow the very valuable advice offered by his teachers if he wishes to secure a result that will allow him to make choices in future educational or employment pursuits. Without a change of focus, [T] will seriously jeopardise his future choices in either educational or employment pursuits.
It is thus evident that T is far from “settled at [QQ] School and progressing well” as the father swore in his affidavit. Cross-examination of the father revealed that he was fully aware of these two fights and of the contents of T’s 2012 school report. The father said in his oral evidence “[T] defended himself against two attacks”, a description which, in my view, fits most uncomfortably with the account of the two incidents contained in the School file. Ms J said “[T] has had significant problems at school this year. We can’t help it if he had to defend himself”. She made no mention whatsoever of T’s difficulties in her affidavit.
In his oral evidence, the father said that he contacted Police and complained that T had been “king hit” at school. He called himself “Mr J” in making this report. In his oral evidence he said that he uses this name in all of his dealings with issues relating to sport, music and extra curricular activities for the J boys.
Dr M was asked about the significance of the father’s use of the name “[Mr J]” in relation to these two children. He said:
The father using [J] in relation to [U] and [T] is more about projecting influence and possessiveness. He wants to give the image that he is the person most connected to these children.
In my view, the father confirmed Dr M’s opinion when he agreed in cross-examination:
Yes, as I see it [Mr J] is their former father and I am their current father. I mean no disrespect to [Mr J].
I wondered how T and U have coped with the father’s rapid assumption of a paternal role after the sudden death of their father, to the extent of assuming his name on occasions.
T’s behavioural problems suggest that life in the family unit of the father and Ms J is not as rosy as the picture which they both painted in their affidavits. Another indication of potential problems in this family is the fact that U told his school counsellor in May 2011 that the father yells at him and not at T (Exhibit 12). The father denied that he yelled at U but I do not accept that he was truthful in that evidence. I can think of no reason why U would make a complaint to an independent person unless he was genuinely uncomfortable with the father’s conduct toward him.
Dr M identified aspects of the father’s relationship with Ms J and her sons as reflective of his “excessive need for admiration”. He opined:
279.The father has an excessive need for admiration. This is seen in his relationships, in that he has initially been gallant and responsive to his partners’ needs, and values their admiration in response, but then when the relationship has settled down to “ordinary”, he has been frustrated by that neediness when it is not accompanied by admiration. He is expending a great deal of effort in assisting his current family, in the context of significant respect and admiration from them. [Ms ZZ’s] comment “I hope they don’t cross him” mirrors my own concern that if there is a disruption to the dominant perspective of admiration, that the father’s response may shift. The father’s need for admiration left him vulnerable to deep and function-disrupting depression when starved of admiration in the workplace in 2008, then from [Ms N] in 2009.
Ms ZZ is a psychologist whom the father consulted at various times alone, with his daughter Q and more recently Ms J. Dr M reported:
230.I put to [Ms ZZ] my impression that the father uses narcissistic psychological defences, and that he might be an active and better-than-average dad while he was receiving appreciation and praise from a child and the child’s mother, but was at risk of being rejecting and hostile if he was not receiving this appreciation and praise. She agreed, and said (referring to the father’s positive relationship with the partner’s children), “I hope they don’t cross him”.
Dr M referred in his report to the father’s “sense of entitlement” and wrote:
278.Along with the father’s grandiosity comes a sense of entitlement. This was seen in his coming around to the mother’s house for some years after separation, and his booking an appointment with [Ms E’s] therapist without an initial request, and then a rapid escalation to threat when denied his requirements in that context. Although [Ms BBB] wanted to continue her relationship with him and they had produced 2 children together, he felt entitled to avoid being tied down and to take the opportunity to sow his wild oats. After his overdose in 2009, he felt confident to refuse to talk to all professional staff, and to insist that his ex-partner attend the hospital to be present before he would speak.
“Ms BBB” is the mother of the father’s two older children, Ms O and Ms P.
To this list of examples of the father’s sense of entitlement I would add his insistence that his behaviour toward Ms N in 2009 did not constitute an assault. On his own account he inflicted physical injuries upon her and forced her backwards for a distance of about one metre. He appeared to assert that he was entitled to act as he did in “self defence” and accepted no responsibility whatsoever for his own behaviour.
In my view, a further example of the father’s sense of entitlement was his refusal to accept any responsibility for the situation in which police officers broke down the door of his mother’s house after he took Q from preschool. In cross-examination he said “[Q] had been abandoned in a childcare facility so that [Ms N] could collect as much property from the house…” In my view, nothing compelled the father unilaterally to take Q from her preschool and then refuse all requests by police to provide them with an opportunity to check on her welfare. It was always open to the father to put an end to this situation. Evidently, he was focused on his needs and oblivious to those of Q and the effect of this unfortunate situation upon her. He felt entitled to separate Q from her mother for an unspecified period after he took her from preschool.
A further example of the father’s sense of entitlement can be seen in his dealings with Mr V, Ms E’s treating psychologist. Mr V began to see Ms E in 2009 in relation to issues of her self-harm, isolation and low mood. The father made an appointment to see Mr V, who told him that he would be unable to disclose any information as he had a duty of confidentiality to Ms E.
Having spoken to Mr V, Dr M reported that he told him that the father adopted a hostile tone and threatened legal action when he explained his duty of confidentiality to Ms E. The father denied that he did so but I consider that he gave untruthful evidence on this issue. In cross-examination the father said that he “made no attempt to see if [Ms E] had any difficulty with him contacting [Mr V]”. In cross-examination he said:
I made an appointment with [Ms E’s] therapist because I was concerned that he had been told a lot of misinformation about me. I did not want to influence him but I wanted him to know my side of the story.
It thus seems that the father focussed on his own position at the expense of Ms E’s need to trust that her therapist would protect her privacy.
Dr M outlined in his report examples of the father’s lack of empathy. He wrote:
280.The father lacks empathy. His focus is on his own view of self and his image in the eyes of others, and there is little space for pausing to connect with the experience or emotions of others. He appeared genuinely unaware of the subject childrens’ fear of his disciplinary style during the contact years and did not give weight to the family consultant’s feedback about [B’s] experience at contact. Instead, on both occasions, he focused on the legitimacy of his own actions, rather than on the emotional experience of the children. Both boys made unprovoked mention of their fear on the occasion when the father drove jokingly on the wrong side of the road. I think it more likely that the father continued with this behaviour because he didn’t appreciate the intensity or significance of their fear, than that he noticed but didn’t care. The father described raising [Mr P] without reference to [Mr P] experiencing negative emotion, but the mother (I believe accurately) described him coming to her from time to time with distress about an aspect of his life, seeking her empathic understanding.
281.The father’s lack of empathy and his sense of entitlement contribute to him being interpersonally exploitative. The mother refers to numerous occasions where he made threats for example to contest custody or to take [Ms E], if he was not given what he wanted. These descriptions are consistent with the father’s actions in taking an overdose then insisting that he would only talk with [Ms N] present, insisting that [Ms N] rather than an ambulance or police officer take [Q] from his arms when they had been called to his home because he was acutely distressed (as recorded in subpoenaed documents from police), and in July 2009, taking [Q] early from care to a deliberately undisclosed location and informing [Ms N] of this action by txt.
In my view, the evidence contained several examples of behaviour on the part of the father which could reasonably be categorised as manipulation, intimidation and/or coercion of other people. A striking example arose from his suicide attempt in 2009, which he attempted to portray in his affidavit as a consequence of the mother preventing him from seeing Ms E, B and C. In reality, however, he attempted to manipulate and coerce Ms N into a resumption of their relationship by refusing to eat, drink or talk to the Psychiatric Registrar unless she attended the Mental Health Unit.
Another example of manipulation, intimidation or coercive behaviour on the father’s part was his apparent attempt to destroy Ms N’s business upon their separation. He sent a letter to her customers which stated that the business would close on … October. Although this date was Ms N’s birthday, the father said “… October has no significance to me”. I have no hesitation in agreeing with Dr M that the father acted in a “cruel and manipulative” manner on this occasion.
In my view, the father conducted himself in an intimidating, manipulative and coercive fashion when he spoke to the mother about his involvement with “[organised crime]” and the danger which these people posed to him. I consider that he also attempted to intimidate, manipulate and coerce the mother in the period leading to the orders for property settlement.
A concerning example of the father’s manipulation of others was his extraction of a statement in support of his case from CCC, the then 15 year old daughter of Ms H. This statement spoke of the father in glowing terms, which I have difficulty in accepting were of CCC’s own creation.

In cross-examination the father said that he did not ask CCC to prepare this statement and maintained that she approached him with an offer of assistance. He said “I take no responsibility for the fact that [CCC] prepared this statement” and unconvincingly denied that he was involved in any way. In cross-examination the father attempted to excuse himself from all responsibility for CCC’s involvement in these proceedings. He blamed Ms H and claimed that it was for his solicitor to decide what use should be made of this statement. In my view, it is likely that his actions were intimidating, manipulative and coercive of CCC and taken in obvious disregard for her psychological wellbeing.
It may be correct that the father coerced, manipulated or intimidated Ms H into holding $55,000.00 for him after he sold a townhouse so as to avoid Ms N receiving any part of this money in a property settlement. The father denied that any such arrangement existed and no corroborating evidence was produced. I cannot tell whether the father did enter into such an arrangement with Ms H. In my view, however, the evidence otherwise contained abundant examples of the father’s tendency to manipulation, intimidation and coercion of other people.

The presumption of equal shared parental responsibility

As noted, Dr M stressed the necessity to maintain the integrity of the mother’s family unit. He expressed concern at the prospect that the father may undermine its stability by competing for the boys’ attention and affection and attempting to establish himself as a parent superior to the mother. Dr M pointed to an example of this tendency on the father’s part, when he took Q to Ms ZZ for her to assess whether the child was ready to start school. He and Ms N disagreed on this issue and he elicited professional advice to support his position. Dr M was concerned that the father may engage in similar conduct in relation to B and C if he disagreed with a decision of the mother.
I share Dr M’s view that preservation of the integrity of the mother’s family unit must be a major focus in the outcome of these proceedings. The children’s stability is fundamentally dependent upon the mother’s effective functioning in the role of primary care provider. I also share Dr M’s concerns that the father may undermine the mother’s parenting capacity by attempting to establish himself as a superior parent and competing with her for the boys’ attention and affection.
As noted, Dr M modified his opinion of the mother’s ability to cope with a resumption of the boys spending time with the father, after he became aware of her evidence and that of Ms G relating to her ongoing symptoms. He was firmly of the view that the children’s best interests require that the mother has “power and strength” in relation to the father.
In my view, there is a real risk that the father would use an order for equal shared parental responsibility as an ongoing opportunity to question and undermine the mother’s decisions and attempt to transfer the boys’ affection and loyalty from her to him. The mother’s capacity to parent the boys appropriately would thus be placed in jeopardy. In these circumstances, I find that the presumption of equal shared parental responsibility has been rebutted. That being so, I am relieved of the obligation to consider whether it would be in the children’s best interests, and reasonably practicable, that they spend equal or substantial and significant time with each parent.

Conclusion

In his report, Dr M recommended that the boys spend limited time with the father and spelled out his reasons why these periods should be confined to day visits. He wrote:
“312.The reasons for this contact not progressing to more substantial time are:
312.1Primarily, my reservations about the father’s personality vulnerabilities and parenting capacity, outlined above, in contrast with my confidence in the mother’s parenting capacity and the secure home base which she has provided for the boys.
312.2The father in the current context is likely to “pull out all stops” and make the boys’ contact experience super-normal in contrast to their past experience of relative neglect. In small doses over a long period of time, this is likely to be a positive and healing experience for father and sons. In large doses, it risks setting up an idealised and overheated engagement which lacks the foundation of empathy and parental maturity and hence may fall over and become a coercive process of competition with the mother for the boys’ approval and loyalty.
312.3Secondarily, I am concerned that the father is at risk of using the power and knowledge inherent in substantial contact to set up a competition for societal approval of his parenting over the mother’s in settings such as school and sporting clubs, and a competition for the boys’ approval/ loyalty between his own and the mother’s residence.
312.4Thirdly, I am concerned that the father is at risk of using the power and knowledge inherent in substantial contact to vengefully disrupt the mother’s security of daily life. I deliberately place this point in third place, in that whilst it is important, it is not my main reason for recommending that contact be limited.”
Dr M clearly recommended against a gradually increasing regime of time for the boys with the father. He expressed concern as to the impact of such a regime on the mother, in terms of each anticipated increase in time. He was also concerned that the father may attempt to manipulate the boys into arrangements which increase more quickly than or go beyond the provision of orders.
In his oral evidence, Dr M was rather more circumspect than was the case in his report as to the benefits to the boys of a reintroduction of time with the father. He said that there is “an argument for no contact” if “the Court finds closer to the end of coercion, intimidation and criminality”. In my view, the evidence fell short of establishing that the father engaged in criminal activity but I am comfortably satisfied and have found that he acted in a manipulative, intimidating and coercive manner towards several people and on multiple occasions. In these circumstances, Dr M recommended that the boys spend time with the father for a day only period every three months. In his oral evidence he opined “I said monthly in my report but now I wonder about second monthly” in circumstances of a finding of “benign narcissism” in the father.
Dr M was of the view that “if there is no contact, [the boys] will be raised well and will probably seek the father out some time between 17 and 25”. I am not persuaded that the risks to the stability of the mother’s family unit are outweighed by the potential benefits to the boys of spending time with the father for one day every two or three months.
My concerns are reinforced by the indications of tension in the family unit of the father and Ms J. It is evident that T is a troubled teenager and U has complained about the father’s treatment of him to an independent person. Dr M expressed concern that Ms J gave him false information in relation to the living arrangements between her and the father and opined that this “was an example of the father manipulating a situation”. At present, the father seems to be channelling his energies and narcissistic behaviour into this family unit. I have very real concerns that his focus would shift to B and C, if there is an order for them to spend time with him and a disintegration of his family unit with Ms J.
I am reinforced in these concerns by the expert evidence of Dr M, to which I have referred above in these reasons. In the context of assessing risk to the children of exposure to abuse, neglect or family violence in the father’s current household Dr M referred, inter alia, to “the progress of the father’s current partner relationship”. For the reasons which I have indicated, I have concerns as to the ongoing stability and viability of the father’s current family unit.
For all of these reasons, I conclude that an order for B and C to spend time with the father would be contrary to their best interests. It seems to me that they should be afforded the guarantee of a secure upbringing by the mother and the opportunity to seek out the father when they wish to do so. I share Dr M’s view that the mother would be likely to support a decision by one or both of the boys to initiate contact with the father.
Both the ICL and Dr M proposed that the children receive letters and cards from the father. Dr M suggested that the father also receive copies of their school reports. I accept that the children would benefit from indirect knowledge that the father retains an interest in them but he should be restrained from attending their schools or otherwise approaching them.
As there will be no order for B and C to spend time with the father, I can see no basis for an order that the mother’s potential places of residence with the children be restricted to the area between Newcastle and Wollongong. In my view, it is likely that she and the children will establish a happy, secure and productive lifestyle in D Town. The mother should thus have the opportunity to relocate with the children to the Coast.
There was no evidence in relation to the mother’s application for orders for the issue of passports for the children or overseas travel. On the other hand, the father offered no cogent reason why such orders should be refused and the children thus denied the experience of overseas holidays. I will thus make those orders as sought by the mother.

I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 5 April 2013.

Associate:

Date: 5 April 2013

[2013] FamCA 212

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Family Law

Statutory Interpretation

Legal Concepts

Injunction

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