Malone and Malone

FAMILY COURT OF AUSTRALIA

MALONE & MALONE

[2016] FamCA 689

FAMILY LAW – CHILDREN – PARENTING ORDERS – Where the children live with the mother – Where the mother lives in Sydney and the father lives in Queensland – Where the mother seeks that the children spend indefinite supervised time with the father – Where the father seeks unsupervised time with the children – Where the mother has made allegations of family violence against the father – Where these allegations have not been established to the requisite standard – Where the single expert indicates that indefinite supervised contact is not in the children’s best interests – Where a staged approach to spending time with the father is recommended by the single expert – Where orders are made that the children spend time with their father once every month – Where the Orders allow for a staged approach for the children to progress to overnight time with the father – Where the Orders enable the father to be involved in the children’s lives – Where the mother retains sole parental responsibility of the children

Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 4AB, 60CC, 61DA

Dundas & Blake (2013) FLC 93-552

APPLICANT:

Ms Malone

RESPONDENT:

Mr Malone

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

SYC

1593

2013

DATE DELIVERED:

22 August 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

1, 2, 3 and 4 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Pigdon Norgate Family Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Clayhills Escobar Solicitors

Orders

IT IS ORDERED

That the mother have sole parental responsibility for the children B, born … 2010 (‘B’), C, born … 2011 (‘C’), and D, born … 2012 (‘D’) (“the children”).
That the children live with the mother.
That where, in accordance with these orders, the parties are to provide information to each other, such information is to be provided by email and each parent shall, within 14 days, establish and notify the other parent of an email address to be used for such communication.
That notwithstanding order 1, the mother shall in a timely manner, advise the father of:
a.the necessity for a parenting decision about education or health, other than in an emergency; and
b.the decision she proposes to make; and
c.all information pertaining to the decision, including but not limited to the names and contact telephone numbers of relevant treating medical or dental practitioners; and
d.the father shall be entitled to make any suggestions or request any further information in relation to the decision.
That within seven days of these Orders, the mother shall advise the father, and keep him advised, of:
a.the name(s) and address(es) of the school(s) attended by the children, including any pre-school attended by D; and
b.the names and contact telephone numbers of all medical professionals treating the children.
That the father is at liberty to obtain, from any school or pre-school attended by a child, information that is ordinarily provided to parents, and to attend school functions, to which parents are invited.
That the father is at liberty to obtain information about a child’s health and treatment from any professional treating the children.
That until D commences school, the children shall spend time with the father in Sydney on one weekend in each month, the father to collect the children from the E Contact Service (“MCS”) and return them to the MCS, in the following progression:
a.On two occasions, supervised at the E Contact Service, for two hours on each occasion;
b.Then on three occasions, supervised by F Contact Centre (“FCC”), for 4 hours on each occasion;
c.Then on one occasion for 6 hours, supervised by FCC;
d.Then on one occasion from 10am until 5pm, on a Saturday, unsupervised, but in the presence of another adult family member;
e.Then on both the Saturday and Sunday, of one weekend, from 10am until 5pm on each of those days, unsupervised; and
f.Then from 10am on Saturday until 5pm on Sunday, unsupervised.
That from the commencement of the 2019 school year the father shall spend time with the children, during school terms, on one weekend in each month, collecting the children from school on Friday until returning the children to school on Monday, or Tuesday if the weekend is a long weekend.
That from the commencement of the 2019 school year and until the commencement of the 2021 school year the children shall spend time with the father during school holidays:
a.For half of all holidays at the end of Terms 1, 2 and 3, from the conclusion of school of the last day of the term, until 5pm on the 7^th day of the holidays; and
b.For two weeks in the December-January school holidays, commencing on the last day of school in even-numbered years, and the first Monday in January in odd-numbered years.
That from the commencement of the 2021 school year, the children shall spend time with the father during school holidays:
a.For half of all holidays at the end of Terms 1,2 and 3, from the conclusion of the last day of the term, until 5pm on the 7^th day of the holidays; and
b.For half of all December-January school holidays, commencing on the last day of school in even-numbered years, and the 3^rd Monday of the holidays in odd-numbered years.
That within 14 days of the date of these orders, the father shall notify the mother’s solicitor of the dates he intends to spend time with the children up to the end of 2016.
That by 14 January 2017, the father shall notify the mother of the dates he intends to spend time with the children in 2017, and thereafter the father shall notify the mother by 14 January each year of the dates he proposes to spend time with the children.
That unless otherwise agreed between the parents in writing by email, where changeovers cannot occur at MCS or at school, changeover shall be at McDonalds at G Street, Suburb H.
That during the time the children are with the father in Sydney, he will ensure that they attend any extra-curricular activities, including but not limited to sports, and the mother shall inform the father of the time and location of each of the activities which the children are scheduled to attend.
That the mother shall, at her expense, establish and maintain in her home an internet connection on which the children can have audio-visual communication with the father between 6pm and 6:30pm on the following days, if the children are not otherwise spending time with the father on those days:
a.Wednesday and Saturday in each week;
b.the children’s birthdays;
c.Fathers’ Day;
d.Christmas Day;
e.Easter Sunday.
That the father shall do all things necessary on his part to facilitate communication between the children and the mother by telephone at 6pm on Saturdays when they are spending two or more nights with him, and also each Wednesday during school holidays, and at any other reasonable time when requested by the children.
That each parent shall keep the other parent advised at all times of his/her residential address and email address and contact telephone number.
That neither parent shall denigrate the other parent in the presence or hearing of the children, or permit any other person to do so.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1593 of 2013

Ms Malone

Applicant
And

Mr Malone

Respondent
REASONS FOR JUDGMENT

These proceedings concern the parenting arrangements for three children, B born in 2010, C born in 2011 and D born in 2012. The children are aged six, five and four years.
Ms Malone (“the mother”) and Mr Malone (“the father”) met in February 2006, married in 2006 and separated on 9 November 2012. The parties divorced on 9 May 2014.
The mother is a qualified professional and, until the children were born, worked for a multi-national. She was not employed after the children were born. The father is employed in primary industry and, for much of the marriage, worked away from home on roster that allowed him one week in three, or one week in four, at home.
The parties initially lived in Queensland, moved to Western Australia in December 2006, and returned to Queensland in late 2007. The father continued to work in Western Australia.
B was born in 2010. There is a dispute about the amount of time that the father spent with the mother after B’s birth.
C was born in 2011. The father spent a period at home to assist with the care of the children. There is a dispute about the time he actually spent at home and the amount of assistance he provided.
D was born in 2012. The mother alleges that there was an incident at the hospital involving the father. Those allegations will be examined later in these reasons.
The mother alleges that it was agreed that, after D’s birth, the parties would move to Suburb I in Sydney and live in a property owned by her parents so that her parents could assist with the children. They moved to Sydney in July 2012. The father was then employed in J Town, Queensland, working four weeks on and one week off.
The parties separated on 9 November 2012.
After the parties separated, the children remained living with the mother in Sydney. The father returned to Queensland. He now lives in J Town which is 350 kilometres west of Brisbane.
Thereafter the father had very limited time with the children.
In December 2012 the father had three periods of contact with the children at “K Centre” which is a play centre near the mother’s home. Thereafter he did not see the children until after orders were made in the Federal Circuit Court on 9 August 2013 which provided for contact supervised by one of three specified contact agencies.
In August, November and December 2013 the father had contact with the children supervised by “L Centre”. The reports of L Centre in relation to those visits are in evidence. There is a discrepancy between the mother’s account of the visits and the reports.
In April 2014 the father commenced contact visits supervised by the M Contact Service (“MCS”). The visits were sporadic. The reasons will be explored later. It is the mother’s case that the father didn’t bother to exercise contact. The father’s case is that the interim orders made on 9 August 2013 did not take his roster into account and that the mother was inflexible in accommodating his requests for variations.
At the time of the hearing, the father had seen the children only once, in February 2016, since November 2015.
The proceedings, which had been commenced in the Federal Circuit Court on 26 March 2013, were transferred to the Family Court of Australia on 18 August 2014.
The Court was assisted by the evidence of a single expert, Dr N, a child and family psychiatrist, who saw the parties and the children in January and February of 2014, and produced a report dated 17 April 2014. The report was more than two years old when the matter came to trial.
The children were represented by an Independent Children’s Lawyer (“ICL”).
The mother was represented by counsel and the father appeared for himself.
At trial, the mother sought orders that the father have time with the children, supervised by the MCS once each month for two hours. She proposed telephone contact with the children on the other Saturdays and on special occasions. The mother did not envisage that the children would ever spend unsupervised time with the father.
The father amended his proposals at the conclusion of the evidence.
The father sought time with the children, progressing from supervised time to unsupervised time and ultimately for one weekend per month, from Friday after school until Monday morning, and for half of the school holidays.
At the commencement of submissions, the ICL tendered a Minute of Orders, broadly in accordance with the recommendations made by Dr N in cross-examination, to which reference is made later in these reasons.

FAMILY VIOLENCE

It was the mother’s case that the father should have only supervised time with the children on an indefinite basis until they were adults, because of his previous history of violence towards her and towards the children.
Each and every allegation was denied by the father.
The standard of proof in relation to allegations of violence is set out in s 140 of the Evidence Act 1995 (Cth) as follows:
EVIDENCE ACT 1995 - SECT 140
Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is the nature of family violence that most incidents occur in the family home and without witnesses. In cases such as this, where the mother and the father were usually the only persons present, the extraneous evidence, in records kept by the police, doctors, medical notes and the like, is significant.
Because of the nature of the mother’s complaints, alleging not only violence towards her but also towards the children, each incident needs to be considered in the light of the extraneous evidence available.
Where there is no extraneous evidence, and the matter falls to be determined on the allegation of the mother and the denial of the father, it may not be possible to determine which version of the event should be accepted.
In those circumstances, the mother will have failed to discharge the onus of proof.
Family violence is defined in s 4AB of the Family Law Act 1975 (Cth) as follows:
FAMILY LAW ACT 1975 - SECT 4AB
Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

ALLEGATIONS OF FAMILY VIOLENCE TOWARDS THE MOTHER BY THE FATHER

It is necessary to examine each of the allegations and consider the evidence to determine whether the mother’s allegations are established to the requisite standard.
In her affidavit sworn 22 December 2015, the mother deposed to an incident on 23 May 2007 when the parties were living in Western Australia. There was an argument about money. The mother deposed that the argument was in relation to money that she had paid on the father’s behalf. The father gave evidence that the argument was about an amount of $24,000 which the mother had removed from the safe, refusing to tell him what she had done with it. The mother deposed that the father, during the argument, pushed her backwards and she stumbled into the doorway. She asked the father to leave the house and he refused. She tried to leave the unit herself but the father blocked her exit. The mother called the police. The father agreed that he blocked the mother’s exit but denied pushing her. On the evidence available it is not possible to determine which of the accounts of that incident should be accepted.
The next incident of which the mother complains occurred on 4 January 2012. The father was sleeping on the couch. The mother deposed:
On 4 January 2012 at approximately 4.15am, I picked up [Mr Malone’s] phone to turn it off. He grabbed my hand, squeezed it tight and twisted it. I was not yelling at [Mr Malone’s], nor did we have an argument about money. I said: “You’ve really hurt me” and he replied: “I was only acting in self-defence”.
The mother reported this incident to the police.
Documents produced by Queensland Police indicate that on 4 January 2012, police attended at the home and spoke with the mother at about 7.30 in the morning. The mother told police that the father’s mobile phone alarm had gone off while he was asleep on the couch and she went out to turn off the alarm so that the children were not woken. When the mother grabbed the phone, the father grabbed her hand with the mobile phone in it and twisted her hand in a way that caused her pain. The mother pulled her hand away from the father and no injury was caused.
The report produced by Queensland Police of this occurrence states that the mother told police that “there has been times when [the father] has pushed her out of the way when she has been attending to the baby as he believes that he is the only one that is able to soothe the baby.”
Under the heading “Likelihood of further DV” the police recorded:
[The mother] states that she is going to move back to Sydney to be with family and that she is not going to stay with [the father].
The mother’s statement to the police does not accord with her sworn evidence that she and the father had agreed that they would move back to Sydney together. There is no evidence that the mother informed the father that she intended to separate from him.

On 4 January 2012 the mother sent an email to a friend. That email was annexed to the friend’s affidavit. The mother said:
[The father] nearly broke my finger this morning, he let the mobile alarm ring for what felt like ages this morning at full blast. I waited to see if he’d turn the phone off but he didn’t. when he started to wake the kids I got up & yelled at him that he needed to turn off the phone cause he’s waking the kids. I picked up the phone off the arm of the sofa (he’s been sleeping on the sofa) & tried to turn it off myself. He grabbed the phone off me to stop me doing it & with his other hand he grabbed my right hand & twisted it & squashed my fingers with a full man’s grip.
The father was not interviewed by police in relation to this incident. The father gave evidence that on the morning in question he was asleep on the couch and did not hear the alarm on his mobile phone. He was awakened by the mother slapping him on the head. When the mother moved to slap him again he grabbed her hand and said “don’t you dare”.
Annexed to the father’s affidavit is an email sent by the father to the mother at 9:18 am on 4 January 2012 which reads in part, “I cannot talk to you any more you get so angry with everything I do I say (sic). Slapping me on the head this morning because I didn’t hear my alarm is not on, I didn’t hear it simple as that.”
The father’s email continued:
Right I transferred $1000 into your account less than an hour ago out of my wages which was $1,585.00 … Again tonight you have threatened me with kicking me out taking me to court because Im (sic) not giving you enough money. If I don’t have the money to give what can I do. By the way go through the account the five months I had off work I put $22500 into your account. I will sell the car you wanted if the $1000.00 a month payment is a problem.

The father then, in his email, set out extracts from the relevant account including two transfers totalling $1,000.
The father in his oral evidence, said that the incident occurred when he had stayed up late to give the children their late night feed and decided to sleep on the couch because he had to start work early in the morning. He was tired and did not hear the alarm ringing. He was woken by the mother slapping him and when she moved to strike him again he grabbed her hand and said, “Don’t you dare”.
If the father’s version of events is accepted, then the mother was the aggressor on that occasion.
There is some corroboration for the father’s version in the email that he sent the mother, just as there is some corroboration of the mother’s version in the email she sent her friend.
Given that the records of the mother’s complaint to the police note that no injury was caused to her, it is difficult to categorise this event, on either version, as an incident of family violence.
Again it is not possible to determine which version of the event should be accepted.
The next incident of which the mother complains occurred on 7 July 2012. She deposed that an argument occurred while the parents and the children were in the car on their way to visit a train exhibition. The mother asked to be let out of the car and said that she would call the police if the father did not let her out. The father reached over and tried to grab the phone out of her hand. The mother phoned her father and put the phone on loud speaker so that Mr P could speak to the father. Mr P suggested that the father should bring the mother and the children home. The father drove back home. When the father pulled into the driveway he left the car engine running. The mother reached over from the front passenger seat to turn the car engine off. Before she was able to take the keys out of the ignition, the father grabbed and twisted her hand with such force that it broke the car keys while they were still in her hand.
It is an agreed fact that the plastic “head” of the key broke away from the metal key.
The mother reported the incident to the police the next day.
Notes produced by the Queensland police indicate that the mother reported to police that on 7 July 2012:
[The mother] and [the father] were in the car having an argument about moving back to Sydney to be with her parents. [The mother] stated that [the father] wouldn’t stop the car to let [the mother] out. The two children were also in the vehicle at the time. Whilst in the car, [the mother] stated that [the father] was yelling and becoming angry. [The mother] phoned her father…Eventually [the father] has driven the vehicle with [the mother] in it to the family home where [the mother] attempted to remove the key from the ignition so [the father] couldn’t drive off with the children still seated in the back.
On 10 July 2012, the mother again attended at the police station saying that she had failed to mention that the father had grabbed her hand while she was attempting to get the key out of the car and that the key had snapped. The police record notes:
[The mother] did not wish to provide a statement or any information for Police to investigate the matter for a Police Application. She stated that she was due to give birth in the next two days and that while she was in hospital [the father] has custody of the other two children and that she’d prefer to be home at the time Police spoke with [the father] to care for the children. She further stated that she was seeking to move to Sydney in the next week with her parents, the newborn and her two other children. She stated that whilst she would be down there she would apply for a private Domestic Violence Order with the assistance of her family who are all in Sydney.
What is clear from the mother’s version of events is that the father was driving the car, he was sitting in the driver’s seat and she attempted to remove the keys. The mother did not report to the police that she was injured in the altercation.
Again it is difficult to characterise this incident as an incident of family violence.
On 10 July 2012, during her attendance at the police station, the mother told police that on 9 July 2012 the father was watching a movie and after she had gone to bed she awoke to find him standing over her. The father said to her “Did you know that half of Psychopaths are left handed and I’m left handed, all it takes is one thing to make them snap.”
The father denied that this conversation had ever occurred.
Much was made in the mother’s case of an alleged incident at the O Hospital (“the O”) in 2012, the day D was born.
The mother deposed that there was an incident at the hospital involving the father and staff, and a dispute as to whether the father would be allowed in the delivery room and then into her hospital room. The mother deposed that there was a discussion among staff about whether security should be involved. The mother, in her affidavit, relied entirely on hearsay evidence in relation to that incident. None of the events, which she alleges occurred, was witnessed by her.
The mother’s father, Mr P, was present at the hospital. He swore an affidavit in the proceedings. There was no evidence in Mr P’s affidavit about the alleged incident at the hospital. In cross-examination by the father, Mr P when asked about the incident at the hospital, said that he wasn’t there but relied upon what he had been told by Dr Q, the mother’s obstetrician. Mr P in his oral evidence said that he had been present when the father arrived in the waiting area of the hospital. He said that the father pressed the intercom, went in, approached the staff and said “Where’s my wife?” Mr P said that the father’s tone was aggressive.
Mr P’s evidence, in answer to questions asked by counsel for the ICL was that he heard the father arguing with the staff at reception in an agitated and aggressive manner. When pressed, he resiled somewhat from that evidence and said that he heard the father say “Where’s my wife”, but he was adamant that the father’s tone was aggressive.
The mother’s mother, Ms P, also gave evidence about what she was told by other people at the hospital on 12 July 2012. In her affidavit Ms P deposed:
[The father] then came into the room. [The mother] and the baby had still not arrived. [The father] was marching back and forward and demanding answers. He yelled “Where is she? Why is she not in this room? Where is the baby?” I said “She is in the recovery room being attended to.”
Ms P was cross-examined in relation to that passage of her evidence and was adamant that the father had raised his voice.
At the request of the mother, Dr Q, provided a letter for use in the proceedings dated 18 January 2013. Dr Q stated:
During the last pregnancy [the mother] was terrified throughout the pregnancy. She was reluctant to divulge too much to me, and as I have said it is not my role to explore into family relationships. Nevertheless, it was obvious to me during the pregnancy that [the mother] was genuinely terrified about losing contact with her children and about violence, both involving her husband. I don’t think I have seen any pregnant woman more genuinely scared than she was during the pregnancy and around the time of delivery. At one point, just after delivery of [D], there was an incident at the reception desk with the husband, when the question of whether he would have access to her room arose. There was a debate about whether [O Hospital] security should interfere.
Dr Q’s letter concluded:
If anyone wants to talk to me about any of these aspects or to probe it, I am happy to do that.

In response to Dr Q’s invitation, the father wrote a letter to him dated 10 March 2016 in which he asked Dr Q whether he had seen or witnessed any threats by the father to remove the children from the mother or any threats of violence. The father also pointed out that there was a discrepancy between Dr Q’s letter and the notes which had been kept by the O Hospital and asked for the opportunity to discuss the discrepancy. No response to that letter was received by the father.
Nothing in Dr Q’s letter suggests that he was present and observed any inappropriate behaviour on the part of the father.
Except for the limited evidence given by Mr and Ms P of their observations of the father, the evidence upon which the mother relied on this occasion was a combination of what she was told by a midwife and what she was told by Dr Q. Ms P’s evidence was a combination of what she was told by a midwife and what she was told by her husband.
I accept that the father raised his voice when talking to staff.
Dr N reviewed the records in relation to the alleged incident at the O Hospital. In his report he states:
I also note the incident which allegedly occurred shortly after [D’s] birth at the [O Hospital] in Brisbane. In my experience, if hospital staff take some administrative action such as communicating with the consultant about the behaviour of a person on the ward, this is generally accompanied by contemporaneous notes in the hospital records.
The records kept by the O Hospital were tendered in evidence.
The records contain a document entitled “Anti-natal Summary GP/Chart” which was completed on 29 March 2011, when the mother was pregnant with C. The information on the chart would appear to have been provided by the mother. Under the heading “Domestic Violence Screening” the questions:
·Afraid for safety
·Physical safety
·Emotional abuse
·Threatened with harm
·Do you want help with any of this now?
These questions were all answered “no”.

The question “Concerns with Relationship” is also answered “no”.
Notes produced by the O Hospital indicate that on 12 July 2012, the midwife recorded:
[The father] presented to desk on MM10 @ 1445 hrs, asking where his wife was. Ward Clerk [Ms R] spoke with me privately to alert me that [the father] did not know his wife was in theatre … when I spoke with [the mother] in Recovery, she stated that [the father] did not know of the planned [caesarean section] and that she didn’t want him in theatre. I advised her that [the father] was waiting in her room upstairs … She said she was happy to go back to that room and to see her husband. She also stated that she had spoken with [Dr Q] and he was aware of what was going on. The midwifery staff on MM10 had no prior warning or notification. I spoke with [Dr Q] in Recovery and found out that [the mother] is planning on leaving [the father] due to domestic violence issues and that police and lawyers are involved. [The mother] did not want [the father] in theatre, but she does not want to make a scene whilst in Hospital and is happy for him to present in the room on the ward.
On 13 July 2012, the notes indicate that the father was present for most of the day, and was appropriate with the mother and with the children. This does not support the mother’s evidence that the father visited each day but only stayed for an hour each time.
On 14 July 2012, the notes of the social worker indicate:
[The mother] explained that she and [the father] have been having relationship issues for a few years now. She disclosed that there had been occasions of ‘pushing and shoving’ by husband during arguments but no black eye or ‘physical violence’ as such.
The notes continue:
[The mother] has liaised with her lawyer and DV connect in Sydney and advised of her keenness to leave [the father]. Lawyer and DV connect recommended [the mother] wait until baby is born, then leave with her family and go to Sydney to live. Then deal with family issues through court.
[The mother’s] plan; when discharged, plans to talk with husband re: separation ([the mother] has advised police to attend if required) pack and leave with her children and parents to Sydney. [The mother] stated the safety of her children is paramount – she advised the relationship has been broken and she will not tolerate DV and expose the children to further issues ([the mother] stated [the father] has never been abusive to the children).

The last incident occurred on the day the parties separated 9 November 2012. They argued about the baptism of the younger children and who were to be the Godparents. The mother deposed that in the course of the argument the father headed towards the hallway to get the car keys and put the car keys in his pocket. She deposed:
I then tried to get the keys out of his pocket and he grabbed my hand, squeezed it and twisted it. As a result, my finger was fractured. He pushed me backwards, but I was able to hold my balance. At this time I was holding [D], and [B] and [C] were standing in the lounge room next to me, crying hysterically. I put [D] on the lounge and phoned my mum and said to her ‘Send dad down now’. I put [D] in his cot and took the second car key from the wooden box on the hallway table and [Mr Malone] grabbed my hand and took the key. He pushed me and I fell backwards. As [B] and [C] were still standing next to me, they also fell.
Again the police were called. On this occasion the father was interviewed and his version recorded.
The records of the interview were produced. The father’s version of events was that he had the car keys in his pocket. The mother pushed him against the wall trying to get the keys out of his pocket. The father told police that he had both sets of keys to the car in his pocket. The mother said to the father “If you don’t give them back to me, I’m going to ring the police.” The father suggested that she do so. The mother continued trying to get the keys out of the father’s pocket and then emptied out the father’s laptop bag which was in the bedroom. The mother then put D on the couch and approached the father again saying “Give me the keys, give me the keys”. The father told the police that he put his hands up because the mother started hitting him, and by that time the mother’s father had arrived at the house. The mother screamed at her father “Get him to give you the keys”. The mother resumed going through the father’s bag trying to find the keys and shouted out to her father “He’s hurt my hand”.
It is not disputed that in the course of the altercation the mother’s hand was injured.
Tendered in the mother’s case was an x-ray report which stated:
There is a hairline lucency through the base of the 5th metacarpal bone which on clinical examination correlates with the patient’s point of maximum tenderness.
This is suspicious for a non-displaced fracture in this location. The remaining bones are intact with no phalangeal fracture or dislocation evident and the carpal bones align normally.
On the mother’s version of the event it was she that instigated the physical contact between them, trying to get the keys out of the father’s pocket.
In relation to the mother’s allegations of family violence, Dr N in his report stated:
[The mother] asserts a history of domestic violence to which the children were at times exposed. [The father] agrees that there was significant domestic disputation between them at times but denies domestic violence perpetrated on his wife. The scanty police records that are available seem rather ambiguous on this matter. I have not seen any materials from the 2007 Western Australian incident, but the January 2012 incident could be a rather subjective matter, and perhaps entirely accidental. The July 2012 incident also on the face of it appears to have a significant degree of subjectivity to it, at least in terms of whether this involved an assault on [the mother] or whether it was as much as anything else, an argument in the final stages of a relationship which included a tug of war over keys. In isolation, these materials do not seem to go to a pattern of domestic violence by [the father] in the relationship … I have noted above that the behaviour I saw from the children did not seem to be clearly indicative of exposure to domestic violence.
In relation to the incidents which occurred on 4 January 2012, 7 July 2012 and 9 November 2012, I do not accept that the mother has established that the father alone perpetrated family violence. Even on her version of those events, she too was involved in the incidents as an aggressor. On the father’s version, she was the instigator.

ALLEGATIONS OF HARSH TREATMENT OF THE CHILDREN

The mother’s case is that the children cannot safely be left with the father because his parenting is inappropriate and he is not capable of caring for them.
Whilst there is a dispute about the amount of time that the father spent in the same house as the children, it is not disputed that for much of their lives he was engaged in work that kept him away from the home for three or four weeks at a time. Necessarily, they spent most of their time with the mother and for most of the time she was a sole carer for them. When the father was away from home, the children slept with the mother.
The mother’s allegations about the father’s treatment of B and C (but not D) while they were living together fall into a number of broad headings:
·He put Panadol in B’s and C’s bottles so they would sleep.
·He forcibly gave them Panadol and an iron supplement with a syringe.
·He held the children tightly to himself to calm them down or put them to sleep.
·He hit the children.
·He force fed the children.
·He told them to “toughen up” if they cried.
The father denied each and every allegation.
The mother deposed that, when C was born, the father cared for B. She deposed that while she was still in hospital, the father told her that he had given B Panadol to get him to sleep. When she told him not to do that, he said he had done it a few times and it was fine. She deposed that on other occasions they argued about giving B Panadol and the father insisted that it was not a problem.
The father denied that he had given either child Panadol except when they were teething. He said he understood that Panadol was a pain killer and had no effect on sleep unless the child was in pain when alleviating the pain might help the child go to sleep.
The mother deposed that in June 2012 she had a conversation with her father and he told her that the father had said to him, “I’ll give them some Panadol and they’ll fall asleep no problem. It works for me all the time”.

Mr P swore an affidavit in the proceedings. He did not give evidence to that effect himself.
I prefer the father’s denial on oath to the hearsay evidence relied on by the mother in relation to this conversation.
The mother’s parents, Mr and Ms P, lived in the granny flat attached to the family home in Queensland from late January 2012 until July 2012 when the family moved to Sydney. Ms P deposed that they were with the children from early in the morning until they went to bed, including times when the father was present in the home. Neither Ms nor Mr P saw the father giving Panadol to the children.
The mother deposed that:
[The father] used to pin [B] down and try to force Panadol down his throat by way of syringe. Every time I saw him do this, I would have to intervene by trying to get [the father] off [B] and pull [B] out from under his grip. I witnessed [the father] doing this on approximately to (sic) 6 occasions and every time I was required to intervene and release that particular child from [the father’s] grip.
The mother does not allege that the father gave Panadol to C in a syringe.
The mother also alleged that the father “forced iron supplements down [B’s] throat by a syringe”.
The father denied that he had ever given B Panadol using a syringe. He said that he had tried to give B the iron supplement using a syringe but was unsuccessful and after the second attempt he gave up and let the mother do it.
In cross-examination by the father, the mother said that her main complaint was that the father “pinned them down” to get them to sleep.
The mother alleged that the father restrained the children by holding them tightly in order to calm them until they slept. She does not allege that he hurt either child. The mother described the father laying the child across his chest and wrapping his arms around the child. The mother disagreed with this practice.
The mother deposed to the father frequently smacking both B and C.
Mr P, in cross-examination, said that he had seen the father smack “the kids” at the table. He said that he had seen this several times which he clarified to mean eight or ten or maybe more. Mr P described a hefty smack. There was no mention in Mr P’s affidavit of the father smacking the children. There was also no mention in Mr P’s affidavit of the evidence he gave in cross-examination to the effect that he had seen the father drag one of the children inside and “throw him in the corner”. Pressed by Counsel for the ICL, Mr P conceded that the father had not thrown the child but had dragged the child to the “naughty corner”.
In relation to the mother’s allegations that the father was inappropriately forceful with the children, Dr N stated:
It is very difficult for me to assess the veracity of the mother’s allegations that [the father] was particularly and inappropriately forceful with the boys, particularly with [B], doing things such as physically restraining them, forcing medications into them with syringes etc. On the face of it the acts alleged are of a fairly unusual nature and I did not find the photographic evidence the mother provided persuasive. Moreover, neither [C] nor [B] showed behaviour which was consistent with the truth of the allegations, although as I noted earlier, this is hardly unexpected in the case of [C] and does not exclude the possibility in the case of [B]. The court would be assisted if other material were to become available about this. On the other hand it may represent a misinterpretation and exaggeration by [the mother].
The mother’s complaints against the father included ill treatment of a dog, possession of firearms including hand grenades (a fact that she did not mention in any of her reports to police), a complaint that he sometimes used different versions or spelling of his name, and an attempt to introduce evidence in reply of a conversation in 2007 about the ease with which an insurance company could be defrauded.
It was also submitted by the mother that the father was deceitful because he had included unpaid work, to assist a friend, on his curriculum vitae in a job application and that he would teach the children to be deceitful.
The mother gave evidence of her belief that the father was a murder/suicide risk for the children. This was based on two separate incidents.
The mother alleged that, on 4 January 2012, the father, while he was carrying B and walking towards the door, said to her that he was taking the child with him. Some days later, in a conversation, the mother alleged that the father told her that he had nothing to live for if he did not have his family. Based on those two incidents, the mother in her oral evidence said that she had a real fear that the father would murder, presumably, all of the children and kill himself.
The father denied any suggestion that he had threatened suicide.
The breadth of the mother’s complaints against the father inevitably leads to concern, as expressed by Dr N, that she may be exaggerating.
There are two pieces of objective evidence that are the only reliable indicators of the father’s treatment of the children. The first is the mother’s statement recorded in the O Hospital notes that the father had never been abusive towards the children. The second is the video footage of the children’s response to their father on the first occasion they saw him after the separation, which is described in detail later in these reasons.
I do not accept that the mother has established that the father behaved towards the children as the mother has alleged.

WHAT PARENTING ARRANGEMENTS SHOULD BE PUT IN PLACE?

Nothing in the evidence displaces the primary consideration of the need for the children to have a meaningful relationship with both of their parents. Dr N expressed the view in his report that these children would benefit from this.
I propose to consider the evidence in the context of such of the factors set out in s 60CC(3) as are relevant to these children.

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

There is no evidence of any views expressed by the children.

(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);

There is no dispute that the mother is the children’s primary carer and their primary attachment figure.
Although there is no direct evidence about the children’s attachment to their maternal grandparents, I note that they live close by and see their maternal grandparents every day and it is likely that they would have a close and loving relationship with them.
The children have not been able to develop any relationships with the paternal extended family or Ms S, the father’s present wife.
The mother, in cross-examination, agreed that she had refused numerous requests by the father for members of his family to visit the children after separation “because they don’t know them”.
When the father’s aunt Ms T came from Europe she did not see the children. The mother could not recall whether she had received a request for Ms T to visit alone, or with other family members but said “I would have said no”.
The mother told Dr N that the children “were extremely fearful of their father”.
The objective evidence of the nature of the children’s relationship with their father is drawn from the various reports of supervised time which the children have spent with the father over the past three and a half years.
The parties had separated following an argument during which the children were present on 9 November 2012.
Tendered in the father’s case was video recording of some of the time the children spent with the father on 15 December 2012, the first occasion they saw him after the parent’s separated, and again on 30 December 2012. The visits took place at a play centre. The recording is of the children’s arrival and greeting their father and of them leaving.
Dr N was asked to view video footage. The video footage shows the two older children delighted to see their father, reaching out to him and repeatedly hugging him. Dr N said that the children did not appear to him to seem fearful. He said the older boys reached out to their father “in a spontaneous and unrehearsed joy at seeing him”. Dr N described D’s demeanour as preoccupied but not fearful. Dr N said that D seemed quite comfortable in his father’s arms when the father picked him up, and that D looked comfortable and as if he were used to being picked up by the father. Dr N said that the older boys looked overjoyed at seeing their father.
Dr N said in his oral evidence that the mother’s statement to him to the effect that the children were afraid of their father, was not borne out by his observations of them in the video.
Nothing in the reports of any of the supervisors since August 2013 suggests that the children have any fear of their father.
The mother told Dr N that if the children are left with the father they will be at increased risk from him because she is not there to protect them. She said that she did not even trust his new partner to stand up to him and protect the children. The mother has never met Ms S.
The children spent time with the father supervised by L Centre on 24 August 2013. In the report of L Centre under the heading “Summary of Visit”, the supervisor states:
Although initially quite distressed for the first ten minutes of the visit, and decreasingly distressed for approximately a further twenty minutes, [D] did settle and engage with his father, sitting on his lap and appearing to enjoy physical contact with his father, playing with, smiling and reaching out towards him for the last hour of the visit. [C] and [B] both seemed well engaged with each other and their father, while [the father] seemed loving and attentive towards all three of his sons. [The father] shared his attention equally between all three children, and appeared to manage their questions, activities and [D’s] distress calmly.
Under the heading “Hand back details”, the supervisor reported that C started to cry when separated from his father, reaching backwards towards the father as he was escorted out of the building. The supervisor spoke to the mother who was concerned that D was crying and reassured her that although D had been upset at the beginning of the visit, he had resumed crying only at the very end with his father.
The next supervised visit with L Centre took place on 16 November 2013. Under the heading “Summary of Visit” the supervisor notes:
The visit seemed to pass in a happy atmosphere with the children appearing relaxed, happy, comfortable and engaged, with [the father] dealing with the children in a calm and attentive manner. [The father] seemed able to divide his attention equally, inclusively and fairly between all three boys.
When the children were handed back to the mother she asked the supervisor if the children had had their formula and whether their nappies had been changed. The supervisor confirmed that the children had been fed and their nappies had been changed. The supervisor also told the mother that D’s crying had coincided with his last nappy change.
In relation to the visit which occurred on 14 December 2013, under the heading “Summary of Visit” the supervisor notes:
The visit appeared to be a positive and enjoyable experience for the children and for their father. Although [D] cried during the handover period, he had calmed within a few minutes of being in the flat. All three children laughed and smiled frequently, and appeared comfortable and familiar in their interactions with their father. [The father] divided his attention equally between the children, actively engaged them in age appropriate games, and maintained a positive mood and easy manner, throughout the visit.
When the children were handed back to the mother, the supervisors told the mother that D had settled well and had stopped crying within a few minutes of the visit commencing.
Dr N observed the father with the children when he saw the family in early 2014. In his report he states:
Bearing in mind the boys’ ages and particularly [D’s], I settled them with their mother and grandfather in a peripheral waiting area then I brought their father to just around the corner from where they (sic) boys were and went around to collect the boys. [C] and [D] were a little hesitant to go with me, although [B] seemed more confident, and it took several minutes before all three had got round to where their father was because [D] and [C] both gravitated back to their mother briefly. Then [D] was a bit hesitant following his two brothers with his father back to my office. However, the two older boys quickly engaged with their father as soon as they saw him and [D] seemed to gain heart from this. They finally walked as a group with their father back to the office.
[D] was initially a bit unsettled and he started to grizzle but he settled quickly when his father picked him up. However when his father put him down, [D] bumped his head on the desk and started to cry again. Once again his father settled him quickly. From then on, [D] basically hovered around the other two boys who were playing with their father. He seemed on one hand not unsettled but on the other hand a bit directionless. While [the father] was settling [D] on the first occasion, [C] twice said apparently out of the blue “Daddy yuk mum” in quick succession. [The father] ignored this remark and [C] resumed his play with the blocks.
Soon after they arrived and when [D] had settled, [the father] asked the boys whether they wanted a drink. They said that they did and he took out of bag an organic orange juice which he divided into three, partially filling two children’s drink bottles and giving the remainder in the original container to [B]. He was able to manage drinking from it without difficulty and the two younger boys consumed most of their orange juice quite quickly as well.
[C] and [B] showed their father what they had been doing with the blocks and the dolls house. Their father had a book of animal stickers and he encouraged them each to select a sticker for the good work that they had done. He also brought out a couple of colouring books and a box of crayons, but none of the boys showed much interest in this so he showed them a folder of photocopied photographs of the boys at the supervised visits over the previous 12 months and before that. [C] and [B] were quite interested in this and they enjoyed pointing each other and recounting recollections of those particular times. One picture showed [B] wearing a Batman shirt which prompted [the father] to ask him to tell him a story about Batman, but [B] did not seem to be able to get going on this before being distracted by [C] into something to do with the blocks. There then followed a period of [C] building, [B] at the dolls house and [D] picking up and carrying around various of the soft toys while he watched what his brothers were doing. [C] and [B] seemed quite eager to tell their father more about what they were doing and after a while [the father] asked them if they wanted a horse ride. The two older boys hopped on his back in way which seemed quite familiar to them. At their father’s suggestion they tried to pull [D] on too but he was not able to get a good purchase behind the two other boys and he slid off to the side. All the boys were laughing at this point. [C] and [B] stayed on their father’s back and rode him around for a few minutes while [D] looked on sucking at the drink bottle.
When I indicated that we were going to have to finish, [B] promptly said goodbye to his father and went to the door. The two other boys followed and I readied them to bring them around to where their mother was waiting, but [C] disengaged himself twice to go back into the office to say goodbye to his father again.
In relation to the nature of the children’s relationship with their father Dr N reported:
[The father] seemed to relate to the boys quite satisfactorily and capably when I saw him with them, and the boys seemed to enjoy their time with him. [D] and [C] showed some separation behaviour in relation to their mother which in my view was within the expected range given the amount and frequency of time they have spent with their father over the previous 18 months.
I note that [the mother] alleges that [C] and [B] were extremely fearful of their father. By the time I saw them, they had not lived with him for about 18 months and they had spent very little time with him since then under reasonably safe conditions. Bearing in mind that [C] was only aged one year when he last lived under the same roof as his father, I may not have expected to have seen any avoidant or vigilant behaviour with his father, although it could have been evident. In the end all I saw was some mild separation behaviour from his mother that could easily be explained on the basis of the very little time that he has spent with his father over his life and the strength of his relationship with his mother. Conversely, of the three boys he was the most reluctant to separate from his father at the end of my session with them. I might have expected [B] could have had a better recollection of a terrifying father as he was aged nearly two and a half at the time of separation, but there was no evidence of this at all in the observation session. However that does not exclude the possibility bearing in mind how much time had passed since he may have been exposed to that type of behaviour.
Basically I did not observe anything in the observation sessions which was clearly supportive of either parent’s allegations.
The first supervised visit at MCS between the father and the children took place on 26 April 2014. The supervisor’s notes describe a happy visit between the father and the children with B and C hugging and kissing the father and D appearing shy. The supervisor describes the interaction with the father, and all three children, becoming more boisterous. The notes state:
For the last thirty minutes of the contact visit, the children variously played on the large climber with [the father] supervising (on one occasion as [B] slid down the slippery slide, and as [the father] stood at the bottom to catch him, he noticed a raised mole on the child’s right arm that had a few hairs growing out of it, and he cmmented (sic) “What’s this?” as if he had never seen it before, he then allowed the child to continue playing).
The report continues:
Lively interaction with [the father] and children also occurred as [the father] smiled and asked the children “Who wants to fly?”. They took it in turns as [the father] swung each around a few times, all shrieked with laughter. As the session drew to a close, [the father] encouraged the children to help him pick up the dropped pieces of chalk and return the bikes to the shed… [The father] then checked [C] and [D] to see if either child had soiled their nappy... [The father] gave the supervisor the unopened pack of ‘pull-ups’ nappies he had brought to give to [the mother]. At separation, he told the children he loved them, each child reciprocated his kiss and cuddle, although [D] refused initially.
The supervisor concluded:
Throughout the contact visit, [the father’s] interaction was positive and child focussed (sic) at all times. On occasion, the two older children, particularly [B], would initiate physical contact, approaching [the father] for a hug. At the request of [the father], random photos were taken throughout the visit by the visit by the attending supervisor.
On 26 April 2014, the mother reported to the MCS that whilst she was parked outside the MCS the father and Ms S stared at her, causing her to become intimidated. The worker spoke to the father who said that he and Ms S had seen the mother’s car and commented to each other that the children must be here. They did not see anybody in the car. In his oral evidence, the father said that the mother’s car has very dark window tinting. The father said he entered the MCS and Ms S left to go shopping. Ms S told MCS that she walked passed the mother’s car and could not see if there was anyone in the car.

On 24 May 2014, the supervisor commented that the children and the father engaged in active outdoor play and that the children initiated physical contact with the father, all asking for a piggy back and taking turns.
There were 13 visits supervised by the MCS. It is not necessary to record the comments in relation to each visit. The visits were happy, the children were affectionate, and the supervisor’s comments were largely positive. Those comments which are the exception to that general position are set out below.
The report of the supervised contact on 28 March 2015 states that when the father asked the children “Do you know who I am?” the boys had different responses. D said “Daddy”, C said “Father”, and B said “[Mr Malone]”.
On 27 June 2015, B again called his father “Mr Malone”.
On 25 July 2015, when the father, chatting about school asked B “Who is your friend at school?” B replied “I’m not allowed to tell you.”
On 28 November 2015, at the conclusion of contact, the father said to the children that he was going on a big aeroplane to Brisbane tonight. D said “Can I come too?” The father replied “I wish you could but you need to go home to mummy.”
On 27 February 2016, the father asked the supervisor to take photographs of the children unwrapping presents. The supervisor told the father that she had taken six photographs and would take more at the end of the visit. The father said “I don’t see them very often please.” And the supervisor told the father that she could take the matter up with the co-ordinator.
The notes record that the children and the father played outside. They state:
[The father] asked the children if they would like to do some swinging. He placed his hand around the wrist of [B] and attempted to swing him by his arms, I interrupted him stating ‘Please stop it is unsafe to be swinging him by the arms,’ I also mentioned that there were a number of other families in the playground and that his legs could hit someone. [The father] immediately said. ‘the other girls (supervisors) have let me.’ I stated ‘I believed this was unsafe and that if he wished to discuss this with the co-ordinator he could do so,’ he then shook his head and continued playing with the children. [The father] approached me and said ‘Can you take a photo of [B’s] arm there is a mole on it that looks like it may be infected.’ I advised him that I would not take a photo on his personal camera of the area on his child’s arm. [The father] said “why not?” I stated that I did not think this was the time to take photos and draw attention to the child’s arm and that I would not do this I stated once again that he should advise the coordinator of the concerns.
The father then had a conversation with the co-ordinator. The notes record that the father returned to the play area, picked up C and held him by his ankles and attempted to swing him. The co-ordinator advised the father that this was not safe for the children to be swung by their ankles upside-down. The father then put the child down appropriately and stated, “I’ve got a good idea lets just wrap them up in cotton wool then shall we?” The children continued to play outdoors for the remainder of the visit.
Dr N reviewed the records of the contact supervisors and particularly MCS and expressed the view that there was nothing of concern in their reports in relation to the father’s parenting .
The evidence of the supervised visits suggests that the children have a close and loving relationship with the father.

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;

The father can be criticised for his failure to exercise contact with the children that was available to him. Dr N, in his oral evidence, stressed the importance to the children of maintaining regularity and consistency.
It is an agreed fact that the father, since 9 August 2013, could have had 36 sessions of supervised time with the children. He saw the children on only 13 of those possible occasions. On two of the “missed” occasions, the MCS was closed. On one occasion one of the children were ill. On another occasion the father was ill.
The father’s evidence in cross-examination was that the scheduled visits did not coincide with his work roster and that he made numerous requests to change the dates. No doubt his work roster causes difficulties for the father. He works on a two or three weeks on/one week off basis. However, it was demonstrated that on some of the “missed” dates, the father was not working.
The father blamed the mother for being inflexible and refusing to accommodate him by changing dates. The father made 16 requests in all to change dates and the mother agreed to 9 of those requests. There is no evidence of her reasons for refusing the balance of his requests.
In 2015 the father spent time with the children at MCS in January, March, June, July and November. He did not then see the children until February 2016 and, until a visit was arranged at the conclusion of the trial, had not seen them since that time.
I accept that it was difficult for the father to attend the supervised visits. He lives 350 kilometres west of Brisbane. He works on occasions in U Town which is a six hour drive north of Brisbane and a six hour drive from his home town. However, it is clear from the notes kept by MCS that the father was becoming increasingly frustrated by the supervision.
The father requested a change of supervisor from MCS to F Contact Centre (“FCC”) so that he could spend his time with the children at places like the Sydney Aquarium. The mother refused his request.
The mother’s reason for refusing the change of supervisor was that she was concerned that with even two supervisors present from FCC there was a possibility that two of the children might “take off” in different directions and be chased by the two supervisors, leaving one of the children unsupervised with the father for a short time.
The father’s telephone communications with the children have also been problematic. The mother complains that he does not bother to call. The father complains that the mobile phone is switched off when he calls.
The father has asked that the calls take place in the evening rather than in the morning because that is more convenient to him. The father said that he could not use his mobile phone when he was on site because of safety restrictions and that morning calls were difficult. The father starts work earlier than the scheduled time for the calls. The mother did not agree to change the time. On any view, it is not appropriate for the father’s telephone contact with the children to take place during his work time.
The mother asked that the calls be made earlier on Saturdays because B was going to karate lessons. The father asked for proof. The mother declined to provide it.
The father asked for the communication to be by Skype or similar. The mother did not agree.
At trial, the father sought an order that the mother facilitate communication between him and the children by Skype or other visual means. The mother opposed that order. The father submitted that, with Skype, he can show the children pictures, books and toys, and more easily engage and hold their attention. The mother did not dispute the father’s contention that Skype was a superior method of communication but has refused to adopt it because of the expense, and because she considers that such contact would be uncomfortable and intimidating for her.
Counsel for the mother submitted that to require the mother to facilitate Skype contact was beyond the power of the Court because such a requirement would impose a cost on her as she would have to pay for an internet connection, and would be a child support order. I do not accept that submission. Every order which requires a parent to make a child available for contact, or to exercise contact, carries a cost. The current orders for supervised contact impose a cost on the father who pays for supervision. The cost of transporting the children to the MCS is a cost imposed on the mother.
There is no evidence of the mother’s financial situation. The father said that she retained the proceeds of sale of the family home. She lives rent free in a home owned by her parents although she pays the rates and utilities. The father pays in excess of $3,500 per month in child support.
There is no evidence before the Court of the costs which would be incurred in establishing an internet connection but everyday experience suggests that the cost is not great.
The orders will provide for Skype or similar contact to be facilitated by the mother.
Dr N said that twice each week was an appropriate frequency for the Skype contact.
If the contact takes place in the evenings, the father will not be at work and the children’s morning commitments will not be affected.

(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

The father pays child support for the children in excess of $3,500 per month. In addition he pays the costs of the supervised visits and bears the expense of travelling from Queensland to Sydney to see the children.

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

Neither parent’s proposal involves separation from either parent or family.
The father’s proposal may give the children the experience of his extended family which has not been available to them under the existing orders.

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

The father currently lives 350 kilometres from Brisbane. He gave evidence that he is considering changing his employment and moving to Brisbane. The costs of travel for the purpose of seeing the children is considerable, but his evidence is that he is prepared to pay.
Similarly, the father will continue to pay for supervision at MCS and for supervision by an outside agency such as FCC.
Those costs are unavoidable.
Similarly, the father’s present work roster creates problems. For the next year, his employer guarantees that the father will work two weeks on and one week off. This will require the father to tell the mother, and the supervisors, which weekend in each month he will see the children and the orders will require him to give that notice sixty days in advance.

(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

The significant matter to be considered is the effect on the mother of any orders for the children to eventually spend unsupervised time with the father.
In relation to the mother’s likely reaction to orders which provide for little or no supervision in due course, Dr N said:
I think it is likely that this would cause her significant personal distress, however I think it is unlikely that it would lead to a significant decline in her parenting abilities as on her account, she continued to parent very conscientiously even when he was present in the home and his contribution to parenting was more destructive than constructive. However in my view she would be assisted by counselling.
In his oral evidence, Dr N expressed a rather more optimistic view, saying that he was now not sure that orders for unsupervised time would have a great deal of impact upon the mother’s ongoing parenting capacity.
Dr N said that there was almost nothing in the material that he had seen since the interviews and up to the time of the trial that suggested any compromise to the mother’s mental health or her parenting ability. Dr N said that, provided the unsupervised time had a phased introduction, it would have a minimal impact upon the mother’s parenting.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

Whilst the mother has been a committed and conscientious parent in most respects, one of the major responsibilities of parenthood is the responsibility to foster the children’s relationship with the other parent and, in this respect, the mother has been sadly lacking.
The mother has complied with the letter of the MCS contact orders.
It is not possible to ascertain where the truth lies in the myriad complaints of each parent about telephone contact but what is clear is that the mother has done no more than the minimum to ensure that the children’s contact with their father is maintained.
She has steadfastly refused any communication with the father, insisting that all communication be with her solicitors. That refusal extends to MCS with whom the mother also refused to communicate about any change in arrangements. This did not, however, prevent her from contacting MCS directly to complain about aspects of the father’s behaviour.
The father has persistently asked for information about the children’s health. None has been provided.
The mother’s attitude towards the father’s involvement in the children’s lives is also evidenced by her actions in relation to their education.
Both B and C are at school. Even at the conclusion of the trial, the father did not know what school they attend, other than that the school is a Catholic school. The mother resisted an order that she provide the father with that information.
Similarly, D attends pre-school and the mother has not told the father where he attends.
In oral evidence the mother said the reason she had not told the father where the children went to school was that she was afraid he would come to the school and create a scene. She was unable to give any instance of the father having done anything like that in the past. The mother relied upon the fact that the father had challenged one of the children’s medical specialists. However, I note that the mother herself has challenged various of the children’s specialists and Dr N indicated in his reports that the records produced by both Dr V and Dr W suggests differences of opinion between the doctors and the mother.
The mother was asked if she had given the school which the children attend the father’s contact and other details. She could not recall. It was suggested to her that she could easily obtain a copy of the enrolment forms from the school.
The next day, the father was shown an enrolment form for a private school which included his details. It was not until I asked to see that document that it became clear that the form did not relate to the children’s current school but rather to the high school in which the mother has enrolled all three children, without notice to or consultation with, the father.
Dr N expressed some concern about the mother’s attitude in relation to the school, saying that it was indicative of a lack of support for the father’s involvement with the children. He also said in his oral evidence that the mother’s insistence that the school be kept secret would impose a burden of secrecy on the children. That this is so, is evidenced from B’s statement to his father on 25 July 2015 at MCS, that he was “not allowed” to tell the father about his friend at school.
Further, Dr N said that the children would benefit from the father’s involvement in their school life. He said that involvement with the school would add to the father’s effectiveness as a parent in that there would be a significant area of the children’s lives, school and their school friends, which they could discuss.
Dr N expressed the view that the mother’s desire to exclude the father from the children’s school was a big problem that “is really all about her and not about the children”.
Nothing in the mother’s case suggested that there was any benefit for the children, in the father remaining excluded from the children’s school.
The orders will require the mother to give the father all relevant information about the children’s schools and permit him to attend functions to which parents are invited.
Dr N said in cross-examination that one likely feature of the mother’s attitude towards the father’s involvement with the children is that he is likely to be discussed in her household in pejorative ways. As an example, he said that it is likely that they will not be encouraged to speak of him and think of him as “Daddy”. He cited as an example B calling the father “Mr Malone” at MCS.
The mother’s refusal to change supervisors to FCC, as requested by the father, to allow some flexibility in the activities which the children can enjoy outside MCS, which has been considered earlier in these reasons, is not objectively reasonable.

CONCLUSION

The mother’s proposal for indefinite supervised contact between the father and the children, in a contact centre, is neither practicably workable nor required for the protection of the children.
Dr N was critical of long term supervised contact for these children. It would inhibit the development of a proper parenting relationship with the father because he would never have the opportunity to parent them. It would prevent the children developing a balanced understanding of their father as a man and as a father, but rather they would have a “monochromatic” view of him.
Dr N said that these children will be men and parents one day and they need to understand how to be fathers.
The mother said that, if questioned by the children, she would tell them that she and the father had agreed that he would see the children in a contact centre. Dr N thought this unrealistic. He suggested that the children would not accept her explanation for long and that eventually the mother will give some explanation that includes a version of bad behaviour on the father’s part. This will contrast with their own experience of their father and create tension in their relationship with their mother.
Dr N said that this is not a case where ongoing supervision is necessary to protect the children. Rather, his evidence was that ongoing supervision would be harmful to the children.
Dr N, when asked by the father to recommend a regime of contact for the children, suggested that there should initially be some visits supervised by MCS, followed by monthly supervised visits outside the MCS, initially for four hours for three visits, then extending to the whole day.
After six months of supervised visits, Dr N suggested that the supervision could be dispensed with and the visits extended to two consecutive days on the weekend, but not overnight.
After a period of time, the visits could be extended to overnight.
Dr N envisaged that, when D is five years old, the visits could be extended to more nights so that the father could collect the children from school and return them to school. Until that time, changeovers should occur at MCS so that the parents are not brought into contact.
Dr N suggested that the children could spend half of their school holidays with the father from the time that D is eight years old.
A consideration of all of the matters relevant to the best interests of the children suggests that the regime proposed by Dr N is appropriate.

PARENTAL RESPONSIBILITY

The mother seeks an order that she have sole parental responsibility for the children. The father seeks an order that the parents have equal shared parental responsibility.
There is a presumption in s 61DA of the Family Law Act 1975 (Cth) that it is in the best interests of a child that the parents have equal shared parental responsibility when making parenting orders. The presumption is rebuttable.

The relevant paragraphs of s 61DA are set out below:
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The mother’s allegations of abuse and family violence have been considered and not found to be made out. Therefore she relies on s 61DA(4).
The Full Court in Dundas & Blake [2013] FLC 93-552, in relation to parental responsibility, said:
56.Her Honour’s discretion in determining the question of parental responsibility was not at large. Her Honour’s discretion was circumscribed by s 61DA, which requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this case, as we have already indicated at [34], her Honour was required under s 61DA(4) to rebut the presumption “by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
57. In our view, her Honour was in error in making an order for sole parental responsibility. Section 61DA is mandatory in its requirement that the presumption must be applied until a level of satisfaction upon the evidence is reached that it would not be in the interests of the child for it to apply.
At Paragraph 61 their Honours say:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
Therefore, in order to determine all of the issues between the parents, in particular the mother’s application for sole parental responsibility, it is necessary to look to the matters in s 60CC in order to determine what is in the children’s best interests.
The primary matter upon which the mother relies is the complete failure of the parents to communicate in relation to any matter relating to the welfare of the children since separation in November 2012.
The failure to communicate is a consequence of the mother’s insistence that the father not communicate directly with her and that his communication be directed through solicitors.
I was not directed to any instance where the mother, unsolicited, had provided the father with any information about the children, their health, welfare or day to day activities.
It was the father’s evidence that information he had sought about the children’s health had not been provided and that he had been left in a position where his information was derived from material produced on subpoena.
The mother’s refusal to provide the father with any information about the children’s schooling has already been canvassed.
The issues in relation to which parents are required to reach joint decisions for their children are limited. Major long-term issues are defined in the Family Law Act 1975 (Cth), s 4, to mean:
issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
Thus far, the mother has excluded the father from both decisions and information in relation to education. The children are being raised in the faith of both their parents and there is no suggestion that will change. The mother has not involved the father in decisions about the children’s health since separation and has not provided him with relevant information. There is no evidence that there is any proposal to change the names of any of the children.
An order that the mother have sole parental responsibility would not allow her to change the residence of the children such as to frustrate the orders for the children to spend time with their father.
There may well be decisions about the children’s education and their health which need to be made in the future. The issue to be determined is not whether the mother chooses to communicate with the father and discuss these issues with him in an effort to reach an agreement, but whether they are able to discuss the issue, albeit by email if necessary, and reach an agreement as to the best decision for the children.
Nothing in the evidence suggests that the mother’s refusal to communicate with the father is other than respectful. A volume of correspondence between the father and the mother’s solicitor is annexed to the mother’s trial affidavit. There is little to distinguish between the tone of the father’s letters and that of the solicitor’s letters.
However, I accept the evidence of Dr N that “the divide” between the parents is now too deep for there to be effective, co-operative decision making.
The children’s interests will, from time to time, require that decisions be made about matters important to their welfare and it is not appropriate that such decisions have to be the subject of a court order, which is likely if the parents have not reached an agreement.
Accordingly, the orders will provide for the mother to have sole parental responsibility.

I certify that the preceding two hundred and thirty-one (231) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 August 2016.

Associate:
Date:22/08/2016

[2016] FamCA 689

22 August 2016

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Natural Justice

Procedural Fairness

Duty of Care