Merman and Cotton

FAMILY COURT OF AUSTRALIA

MERMAN & COTTON

[2007] FamCA 47

FAMILY LAW – Best interests – Parental responsibility – With whom the children spends time – Family violence

APPLICANT:

Ms Merman

RESPONDENT:

Mr Cotton

INDEPENDENT CHILDREN’S LAWYER:

Gisela Margaret HANNAN

FILE NUMBER:

DGF

240

2005

DATE DELIVERED:

29 January 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

5 and 6 October 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Marchetti of Counsel

SOLICITORS FOR THE APPLICANT:

Armstrong Ross Barristers and Solicitors

COUNSEL FOR THE RESPONDENT:

N/A The respondent appeared in person

SOLICITORS FOR THE RESPONDENT:

N/A The respondent appeared in person

INDEPENDENT CHILDREN’S

LAWYER’S COUNSEL:

Ms Spehr of Counsel

INDEPENDENT CHILDREN’S

LAWYER’S SOLICITORS:

Gorman & Hannan,

Orders

Living arrangements

The children, M born in January 1995, H born in November 1996 and R born in March 1998 (the children) live with the mother.

Parental responsibility

The children’s parents Ms M (the mother) and Mr C (the father) each have parental responsibility for the children as set out in s 61C(1) of the Family Law Act 1975.

Children’s time with the father

The children spend time with the father:
(a) to be supervised at a contact centre, for four hours each third weekend, to commence upon the father’s written notification to the mother of the dates and times of arrangements which he has made at a contact centre, provided that unless and until the father should arrange intake at a suitable contact centre and provide written notification to the mother of such arrangements, this order be suspended, and provided further that if the mother should not be able to persuade the children to see the father pursuant to any such arrangements which the father may be able to make and to notify to the mother, she have liberty to apply to the Court for this order to be suspended;
(b)in the case of any medical emergency or serious accident concerning the children or any of them, as the mother may permit, to be supervised by medical or hospital staff.

Other communication

The children may if they wish communicate with the father by letters, cards, email or telephone, to be assisted and facilitated by the mother, provided that the mother supervise any telephone communication, meaning that she be in reasonable proximity to and within the hearing of the children but not listen in by handset or speaker.
The father must not communicate with the children by letters, cards, email or telephone other than to send to them, addressed to the mother, age appropriate birthday and Christmas letters, cards or gifts, which the mother may read and inspect before, at her discretion, providing or not providing them to the children, according to her assessment of age appropriate content and suitability.

Non denigration

The father and the mother must not denigrate each other to or in the presence of the children, and must not permit any other person to denigrate each other to or in the presence of the children.

Information

The mother must notify the father of any medical emergency or serious accident concerning the children or any of them.
The mother must keep the father informed as to the name and address of any medical or health practitioner treating the children or any of them and authorise any such practitioner to provide, at his or her discretion, information and reports concerning the children to the father, at his request and expense, provided that this order is sufficient authority without further written authority by the mother.
The mother must authorise the children’s schools to provide term reports to the father, at his request and expense, provided that this order is sufficient authority without further written authority by the mother.

Postal addresses

The mother and the father must keep each other informed as to a current postal address to which written communications may be made.

Non attendance at children’s school functions or sporting events

The father must not, unless specifically invited by the mother in writing, attend at the children’s schools, or any of the children’s sporting or other extra curricular events.

Discharge of orders

All other orders concerning the children are discharged.

Applications

All other applications concerning the children are dismissed.

Discharge of the independent children’s lawyer

The independent children’s lawyer is discharged.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 240 of 2005

Ms Merman

Applicant

And

Mr Cotton

Respondent

REASONS FOR JUDGMENT

Overview

Ms M (the mother) and Mr C (the father) have been unable to agree parenting orders in relation to their three children M born in January 1995 now nearly 12 years, H born in November 1996 now 10 years and R born in March 1998 now nearly 9 years.
The mother, by her amended application filed on 27 April 2006 (original filed on 21 March 2005) sought final orders that the children live with her, that she be solely responsible for their long term and day to day care, welfare and development, that the father’s contact with the children be “reserved” and other orders as the Court may consider appropriate. During the trial the mother (during her cross examination) made clear that she sought a “no contact” order (as opposed to there being no specific order for the children to spend time with the father). Despite that, subsequently in the course of the trial Mr Marchetti of Counsel, who represented her, tendered two proposals which became respectively exhibits 1 and 6, ex 1 proposing that the children spend time with or communicate with the father as may be agreed between the parties, and ex 6 proposing that in the event the children express a view or wish to spend time with or communicate with the father the mother do all things necessary to advise him and make all necessary arrangements to give effect to the children’s views and wishes, provided that all time which the children should spend with the father be supervised.
The father, by his amended response filed on 6 June 2006 (original filed on 23 March 2005 and earlier amended on 7 April 2005) had sought (in effect, by his agreement with pars 2, 3 and 5 of the mother’s amended application) that the children live with the mother, that she be solely responsible for their day to day care, welfare and development and an interim order that the children spend time with him for two hours on each alternate weekend at the Relationships Australia Contact Centre at W. However, in opening, the father, who appeared for himself, proposed that ultimately the children should live with him but in the interim there be an order that they spend time with him on alternate weekends and for half of the school holiday periods, for the period of six months as a “trial period”, so that he can “build the bridge” between himself and the children, with a “review” in six months so that once he has demonstrated that he can “build a relationship with the children” there then be a final order that the children live with him. In opening, the father made clear that he did not seek a self executing order for the children to live with him in six months, but that there be a “review” in six months to that ultimate end. The father made clear that although he did not consider supervision to be necessary during the interim six month period, he would agree to initial supervision if sought by the mother but “at a later point” there not be supervision, the father explaining that at all times until the matter “came into the system” (meaning, into the Family Court) by the mother’s application filed originally on 21 March 2005, the children had enjoyed contact with him. In the father’s final submissions (written submissions 6 October 2006) however (last paragraph) the father sought what he described as a “half shared care plan” to be “initiated” by himself and the mother.
Towards the end of the trial, Ms Spehr of Counsel, for the independent children’s lawyer, said that the independent children’s lawyer had “no difficulty” with a proposal put by me for orders that the children spend time with the father, to be supervised at a contact centre for say two or four hours each alternate weekend, but that unless and until the father should arrange intake at a suitable contact centre and notify the mother of such arrangements the orders be suspended, with a provision that if the mother should not be able to persuade the children to see the father pursuant to any such arrangements which the father may be able to make, the mother have liberty to apply to the Court for the orders to be suspended.
Ultimately, in final submissions, the mother through her Counsel expressed agreement with that proposal and adopted it.
It is necessary to mention at the outset that:
·The father has an extensive criminal history (annexure MAM11 to the mother’s trial affidavit), extending from November 1986 to February 2005
·The father is rehabilitating from an horrific assault on him in February 2006 by attack with a butcher’s knife and a hammer, as the result of which he was hospitalised for an extensive period, his attacker, a Mr P, apparently now charged with attempted murder in relation to the incident
·The father during 2004 spent time in prison
·There has been a considerable history of family violence, including the making of a Family Violence Intervention Order on 11 March 2005, the mother being the aggrieved person, the order being in place until 10 March 2007
·Despite there being in place since 12 December 2005 an order that the father have contact with the children on alternate weekends for two hours at the Relationships Australia Contact Centre at W, provided that the parties do all things necessary for intake, the father has failed to complete the intake procedure with the effect that the children have not spent time with the father now for over one year
·In January 2003, as fully described in ex 4, the children witnessed a violent assault on the father prior to which, it is alleged, at a Red Rooster restaurant, the father had thrown an EFTPOS machine at a person and was then, in the presence of the children, punched in the mouth leaving him with a bloodied mouth and three missing teeth, after which the father attended the Hospital with the children, resulting in a five hour After Hours Child Protection Outreach Visit between 1.15am and 6.15am, during which at 2.40am, at the hospital, the father was arrested and the children put into an “undisclosed community placement” under the A Program
·Dr K, clinical and forensic psychologist, recommended on two occasions (first report, 28 July 2005, and second report, 29 August 2005 to the same effect) that he would not recommend that the children have contact with the father, and recommended in his third report, 7 December 2005, that the father appears to have “little or no insight” into his own difficulties, that “further intervention is unlikely to produce the necessary changes that would allow confidence in unsupervised contact” and that “the most appropriate course” is that any contact between the father and the children “be professionally supervised by an independent party”, with “continued contact” to be “dependent on the father desisting from inappropriate behaviours” in contact with the children, the supervision to occur on an “approximately three weekly basis over a period of four hours”
·The Department of Community Services has had extensive involvement in relation to the children (ex 5)
·The father has engaged in extensive correspondence with the Attorney-General (Commonwealth), the Minister for Community Services (NSW), the Chief Justice of the Family Court of Australia and others (see the voluminous correspondence in ex 3).
Against this background, I will endeavour to refer only to so much of the evidence as I consider relevant to the discharge of my statutory function.

Relevant background facts

The mother is 33 years and the father 46 years.
They were married in June 1997, having cohabitated for three or four years before the marriage. Final separation occurred in January 2000.
The mother is a homemaker and part time retail assistant, engaged in that employment for three hours per day, five days per week, for which she receives modest remuneration. The mother also receives a Parenting Payment (Sole Parents Pension) and Family Payment A and B of about $1,375 per fortnight.
The father is not currently in paid employment and has not been since the attack on him (referred to above) in February 2006. Since that time he has been dependent on a Disability Support Pension. Prior to that the father had completed a Certificate III in Engineering/Mechanical Trade from TAFE in March 2000 (the certificate comprising part of ex 3). The father describes himself as an “engineer/fitter and turner” (father’s written submissions). As at the date of the trial, the father had not been in consistent paid employment for about five years, however, he had engaged in casual employment as a fitter and turner with labour hire companies.
The mother says that she has not received any child support from the father since 2002. She says that she has asked the Child Support Agency to assess the father, however, has not requested the collection of money as she has not wanted to “upset and aggravate” the father (mother’s trial affidavit, par 48).
Since the final separation, the children have lived with the mother.
Presently, the mother and the children live with the maternal grandmother Mrs M and her partner Mr A, in a house property at B, owned by the maternal grandmother. The mother describes the house property as a four bedroomed brick veneer home with standard amenities and a large rear yard, the mother and M (a female child) sharing a bedroom and H and R (both male children) sharing a bedroom.
The father currently lives at R in a Government Housing three bedroomed brick veneer home with modern amenities and a fenced yard. The father has lived at that premises for about four years. He lives alone. The father said however that if the children should live with him, the Government Housing Authority has promised him new premises at a new address, in particular because Mr P, the father’s alleged attacker in February 2006, had been the father’s neighbour.
According to the evidence, neither party has repartnered.

History of parenting since the final separation, including parenting orders

As I have mentioned, since the final separation in January 2000, the children have lived with the mother.
Initially, pursuant to an informal agreement between the parties, the children spent time with the father on weekends from after school on Fridays until late afternoon on Sundays in each week, and for half of the school holidays.
The informal agreement apparently progressed successfully until about April 2004, when it commenced to break down. It appears that between April 2004 and March 2005, when the mother commenced the current proceedings, the parties endeavoured to negotiate and formalise parenting arrangements for the children through their respective solicitors. See the mother’s affidavit, pars 13 and 14, and the solicitor’s correspondence, annexures MAM1-MAM5 to the mother’s affidavit.
Since March 2005, there have been several Court orders concerning the children, including those made on:
·21 March 2005 (Carter J)
·23 March 2005 (Carter J)
·1 April 2005 (Carter J)
·11 May 2005 (Dessau J)
·3 August 2005 (Mushin J)
·5 September 2005 (Mushin J)
·27 September 2005 (Young J)
·5 October 2005 (Carter J)
·12 December 2005 (Ramsden JR).
It is not necessary to set out the terms of all of those orders. It is sufficient to observe, I think, that two of those orders were recovery orders against the father, being those made on 21 March 2005 (Carter J) and 27 September 2005 (Young J); and that several of the orders provided for an interim regime for the children to spend time with the father, all of which seem to have been largely unsuccessful, for example, 1 April 2005 (Carter J); 11 May 2005 (Dessau J); 3 August 2005 (Mushin J); 5 September 2005 (Mushin J); 5 October 2005 (Carter J); and 12 December 2005 (Ramsden JR).
I have mentioned already the circumstance that the most recent interim parenting orders made on 12 December 2005 provided that the children spend time with the father for two hours on alternate weekends at the Relationships Australia Contact Centre at W, provided that the parties do all things necessary for intake, but the father has failed to complete the intake procedure. The father said that, initially, he was in contact with Ms L, the manager of the Relationships Australia Contact Centre at W, for the purpose of attending to the intake procedure, but that his ability to complete the intake procedure was interrupted by the violent assault on him by Mr P on 22 February 2006, as the result of which he was hospitalised for several months, I think until June 2006. However, at the trial, the father was not able to offer any explanation as to why he had not completed the intake procedure between June 2006 and October 2006 (the date of the trial), being the period of three months, other than that he had had “no time” and was “too busy”.
Thus, the children have not spent time with the father for over one year.
In relation to the two recovery orders, the father gave evidence that on each occasion of his retention of the children, he had been advised by persons in the Department of Community Services and/or officers of Victoria Police involved with the Sexual Offences Child Abuse Unit that he should keep the children in the circumstances that one or some of them had disclosed being sexually abused by the maternal grandmother’s partner Mr A. However, in relation at least to the second retention, leading to the recovery order made on 27 September 2005, the father’s evidence was discredited by reference to the Department’s file, ex 5, which included a letter dated 1 June 2004 to the father by the Minister for Community Services advising that the matters relating to the father’s allegations of the children’s disclosures as to sexual abuse had been fully investigated by Victoria Police and Protective Services and that “no evidence was found to substantiate that sexual abuse had occurred”. Further, in relation to a subsequent notice of child abuse or risk of child abuse (referred to below), the father admitted that the basis of his concern underlying the notice had been the disclosures already investigated.

Notice of child abuse or risk of child abuse

On 23 March 2005 the father filed a notice of child abuse or risk of child abuse alleging:
Sexual abuse of the children by the maternal grandmother’s partner, [Mr A].
In his oral evidence, the father said that he maintains a present concern that there has been sexual abuse of the children by Mr A. He said however that the basis of his present concern is solely the children’s prior disclosures of sexual abuse by Mr A which had been fully investigated by the Department by June 2004, with the result to which I have referred, namely that “no evidence was found to substantiate that sexual abuse had occurred” (the Minister’s letter 1 June 2004, comprising part of ex 5, to which reference has been made above).
I will refer below, when dealing with the evidence of Dr K, clinical and forensic psychologist engaged by the independent children’s lawyer, as to his assessment of the children’s disclosures, and to my findings in relation to the children’s disclosures.

Principles relevant to this application

Children’s best interests paramount

Pursuant to s 60CA of the Family Law Act1975, in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·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
·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
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Determining what is in a child’s best interests

Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time

Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.

Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.

Prior parenting plans

Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

The evidence

I propose to refer only to selected parts of the evidence presented by the mother, the father and the independent children’s lawyer. However, I have taken all of the evidence into account.

The mother’s evidence

The mother provided an extensive affidavit setting out in great detail the history of contact arrangements for the children since the final separation, a detailed history of events since the commencement of the proceedings, her own assessment of the children’s individual needs, her version of incidents in which she alleges the father showed aggression and violence towards the children, the involvement of the State Welfare Authorities in relation to the children, allegations by her of the father’s failure to comply with previous parenting orders and other matters. The annexures to her affidavit comprised correspondence between the solicitors in relation to contact and documents relating to a Family Violence Intervention Order which she obtained on 11 March 2005, current until 10 March 2007. As already mentioned, the mother annexed also the father’s criminal history (annexure MAM11).
In her oral evidence, the mother said that the children have told her they are fearful of the father, and that they are aware of the current proceedings and want them to be finalised. The mother said that the children see the Court as a “safe ground” for them, to look after their interests.
The mother said that the children have been “calmer” since October 2005, when contact ceased, and that the children have not seen the father since 5 December 2005 in relation to the interviews with Dr K for the purpose of his third family report. The mother said that before the cessation of contact the children had been “anxious and nervous” and were “very nervous” when they were required to see Dr K. She said that the course of the Court proceedings had impacted on the children “because it has been going on for so long”, with the children questioning her “is it going to end?” She said that the children were aware that the trial in October 2006 was for a final hearing as to whether they should continue to see the father. She said “they are hoping they won’t have to see [the father] again”, with the qualification that “only the youngest” ([R]) is ambivalent in that he had said to her that if the older two children were present, he would see the father at the same time, but that the older two children have said to her that under no circumstances do they wish to see the father. She said that the most recent occasion before the trial on which the children had expressed these views to her was “the last time in Court”, which she identified as the pretrial conference in August 2006.
The mother said that if the result of the Court proceedings should be that there not be any order that the children spend time with the father, or that there be an order for “no contact”, the impact on the children in her view is that “they would be relieved”. She said however that in that event, if the children should ask to see the father she would organise for that to occur, and would let the children know, and that she would pass onto the children “you can ring him if you want to and if you want to see him ask me and I will arrange it”.
As to the receipt by the children of letters from the father, the mother said “to be honest I would not pass on the letters” on the basis that “I couldn’t trust what he would write in letters at the moment” and “I wouldn’t read them as that would not be my place”. She said however that if the Court ordered that the father be able to send letters to the children, then “I would have to pass them on”.
The mother said that even with “professional supervision by an independent party”, in her view the children would not feel safe around the father. She gave the example that recently, at one of the children’s basketball events, the father arrived and the children came up to her saying “Dad’s here”. She said the children “stood right next to me and would not look at the father” even though there was the safety of teachers and other parents there. The mother said that in her view the children would be upset and scared if the father again turned up at their basketball games.
The mother said that her preference in relation to the children, in all of the circumstances, is a definite order that there be “no contact”, on the basis that she and the children need the “security of a definite order”.
The mother emphasised, in her oral evidence, her belief that it would not be in the children’s best interests for there to be contact orders, but reiterated that if the children should express the wish to see the father she would contact him to make all necessary arrangements, provided that the time which the children should spend with the father be supervised.
As I have already mentioned, after the mother’s oral evidence and cross examination, Mr Marchetti of Counsel, for the mother, tendered ex 1, proposing that the children spend time with or communicate with the father as may be agreed between the parties in writing in accordance with the children’s views and wishes, and subsequently, ex 6, proposing that in the event that the children express a view or wish to spend time with or communicate with the father the mother do all things necessary to advise the father and make all necessary arrangements to give effect to the children’s wishes, provided that all time which the children should spend with the father be supervised.

The father’s evidence

The father, in his trial affidavit, referred to the orders made on 12 December 2005 which, it will be recalled, provided for the children to spend time with him for two hours on alternate weekends at the Relationships Australia Contact Centre at W, with the parties to do all things necessary for intake. The father said that about five days after that Court order he contacted Ms L of Relationships Australia to inquire what he had to do “to commence contact with my children”, but that he decided that as the children would be on school holidays he “would not immediately attend to the documentation”. He said that on about 21 February 2006 he received paperwork from Ms L relating to intake, but was not able to complete it because in February 2006 there occurred the violent incident in which he said “I was badly beaten by my then next door neighbour, [Mr P]”, in relation to which he sustained severe injuries to his right thigh and face, left thigh and buttock, Mr P having since been charged with attempted murder “as well as a number of other related assault charges”.
The father’s affidavit provides that he was admitted to Intensive Care at a City Hospital in February 2006 as he had lost a large quantity of blood and required surgery for his injuries. The father said that he was later transferred to the Plastic Surgery Unit at that Hospital and on 28 February 2006 discharged to a rehabilitation hospital. He said that he attended various rehabilitation hospitals during the next four months and returned to his home on 7 July 2006, where he has continued his rehabilitation, which includes weekly counselling and physiotherapy. The father said that during his time in the City Hospital he believed he had completed the intake forms sent to him by Ms L and that the social worker at the hospital had sent the forms to Ms L on his behalf. He said that in early March 2006 he telephoned Ms L but unfortunately “became ill mannered” so that Ms L “did not wish to communicate with me again”. The father said that he has since apologised in writing to Ms L and that he understands that she is willing to “speak with me again with the view to assessing me for enrolment at Relationships Australia”. He said that he is most anxious for this to happen because he misses the children very much, not having seen them since late 2005. However, in cross examination, the father conceded that since the preparation and filing of his affidavit (filed on 27 July 2006) he had not made further attempts to complete the intake procedure.
The father said in his affidavit that he has applied for new housing for himself and the children “in view of the assault on me on 22 February 2006” and has been advised that his application has been successful (annexure DC7).
The father further said in his affidavit that he has undertaken an anger management course, and found the sessions “insightful”, and that he enjoyed “learning different strategies to assist in the management of conflict”. He said that he has continued to implement the skills learnt and that he has “no need to resort to yelling or corporal punishment”, of which he does not approve. He relied on a certificate in relation to the course he undertook (annexure DC8), which certificate provides that the course was entitled “Men Making Change”. He said that he had commenced attendance at the program after a preliminary interview on 10 January 2000 but then “dropped out” on 23 February 2000 after attending three sessions. The certificate provides further that on 15 October 2001 the father returned to the program and attended a further nine sessions, but “dropped out” before the completion of the program on the basis that “he had returned reunited with his partner [I]”.
The father said that on two days in May 2006 (28 and 29 May 2006) he undertook volunteer work with the Salvation Army in relation to its Red Shield Appeal, and referred to a letter (annexure DC9) evidencing his assistance.
The father said that he no longer consumes alcohol and has not done so since June 2006 (the affidavit being sworn on 24 July 2006 and filed on 27 July 2006).
The father said that in his belief he has been “unfairly” cast as the aggressor in his relations with the mother and referred to a Family Violence Intervention Order for which he applied in October 2005 against the maternal grandmother as the result of “an assault” which he said occurred on 4 October 2005.
In his affidavit, the father proposed that the children spend time with him each week for two hours at Relationships Australia, W, or like organisation and that if orders are not made for the children to spend time with him they will be “alienated from me and their culture”.
The father’s reference to the children’s culture is a reference to the circumstance that he is Maori and that, through him, the children also have that heritage.
I have referred already to ex 3, which is a voluminous folder of documents tendered by the father, including his correspondence to and from the Attorney-General (Commonwealth), the Minister for Community Services (NSW), the Chief Justice of the Family Court of Australia and others. It is however not necessary for me specifically to refer to the contents of ex 3.
In his oral evidence, the father spoke of his preference for a shared care arrangement concerning the children.
Under cross examination by Mr Marchetti of Counsel, for the mother, in relation to ex 4, being the file extract of the After Hours Child Protection Outreach Visit to the father and the children at the A Hospital in January 2003 (the visit extending from 1.15am to 6.15am) during which, as I have already mentioned, at 2.40am the father was arrested, the father denied that at a Red Rooster restaurant prior to his hospitalisation he had thrown an EFTPOS machine at a person, and denied that on that occasion he had been affected by alcohol.
In relation to the orders made on 12 December 2005, the father conceded that even since the filing of his affidavit on 27 July 2005 he has not made further contact with Ms L of Relationships Australia. The father said that, even since then, he has not had “time” to attend to the intake procedure, emphasising that the assault by Mr P “took four months of my life” and that he has “clawed back” since the assault “to get here” meaning, to be able to attend the trial to seek parenting orders in relation to the children.
In relation to the Family Violence Intervention Order which the mother obtained on 11 March 2005, Mr Marchetti cross examined the father as to an appeal by the father against the Intervention Order, an application by him to vary or revoke it and other matters concerning it, including a conviction for its contravention, which the father successfully had quashed on appeal.
In relation to the Family Violence Intervention Order sought by the father against the maternal grandmother (referred to in the father’s affidavit, to which reference has been made above), the father acknowledged in cross examination that his application for this order was “dismissed outright” and that an appeal by him against that dismissal had been unsuccessful.
Mr Marchetti referred the father to a contravention application brought by him against the mother, filed on 4 July 2005, which was heard by Mushin J, which the father acknowledged had been dismissed, on the basis that the allegation against the mother (to do with the timing of changeover) was erroneous. (Basically, as I understand the matter, the father’s application was erroneously based because, in relation to the particular changeover occasion, the mother was there, and it was the father who was not there).
In relation to the two recovery orders made against him in relation to the children, namely those made on 21 March 2005 by Carter J and on 27 September 2005 by Young J, the father said that he had not returned the children to the mother on the advice of persons in the Department of Community Services and/or officers of Victoria Police involved with the Sexual Offences Child Abuse Unit because of sexual abuse disclosures made by the children, or one or some of them, against Mr A, the maternal grandmother’s partner. However, in cross examination by Mr Marchetti of Counsel, the father was forced to acknowledge that the investigation in relation to the children’s disclosures was, to his knowledge, closed on 17 May 2004. (In this regard, I would refer to the letter from the Minister for Community Services to the father dated 1 June 2004 (the first document in ex 5) advising the father that the matters concerning the children’s disclosures had been fully investigated by Victoria Police and Protective Services and that “no evidence was found to substantiate that sexual abuse had occurred”.

The father said that he maintains a present concern as to sexual abuse of the children by Mr A, but conceded in cross examination that the basis of his present concern is the prior disclosures by the children, which he had been notified by the Minister’s letter dated 1 June 2004 had already been investigated, with the result to which I have referred.
The father further conceded that the notice of child abuse or risk of child abuse which he caused to be filed on 23 March 2005, similarly, related to the prior disclosures, already investigated, with the result to which I have referred.
In relation to the assault upon him on 22 February 2006, by Mr P, the father said that Mr P attacked him with a butcher’s knife and a hammer; that with the hammer he had “hit me to the floor”; and then with the butcher’s knife he “nearly cut my leg clean off”; also with the butcher’s knife he had cut his face “clean up to my ear, with the knife in my ear”; and used the knife also on his scalp and throat; that with the butcher’s knife Mr P had also made “backstabs” and stabs to his groin so that his buttocks were stabbed “clean to the floor”; and that with the hammer Mr P had assaulted his arm. The father said that he “bled three and a half litres”, “rolled to the neighbours” and that he had “no vitals” and “no blood”. He said that the neighbours gave him a “neat whisky” and that then he was taken to hospital.
The father said that Mr P had been his next door neighbour and had asked the father to borrow his mower and whipper snipper. He said that he had not known Mr P before, that he had “just moved in” and had “invited over” the father with the request also of borrowing the mower and the whipper snipper.
In the witness box, I observed the right side of the father’s face showing an unsightly and elongated scar which appeared to me to extend approximately from his throat to his right ear.
The father said that in October 2006 (but after the Family Court hearing on 5 and 6 October 2006), he was required to attend the Magistrates Court for proceedings relating to the attempted murder and other charges which, from the father’s description, appeared to me, possibly, to be committal proceedings.
The father said that Mr P telephoned him on 29 March 2006, on his mobile telephone, and threatened to kill him with a gun.
On 3 October 2006 (two days before the hearing) the father lodged a complaint in the Magistrates Court at Ringwood against Mr P, claiming that each of the three children was a “victim of stalking” by Mr P. The documents relating to his complaint (ex 2) include the father’s allegation that on 29 March 2006 Mr P telephoned the father and said “I’m gonna kill you with a gun”.
In cross examination, the father conceded that the children had not, at any stage, been “victims of stalking” by Mr P, but that the father had sought the Intervention Order against Mr P on the basis that, as the result of these proceedings, the children may spend time with him and “in case they come to live” with him, as a result of these proceedings. The father said that he had not brought the Intervention Order proceedings between March 2006 and October 2006 “because I knew I wouldn’t have the kids near me”, but, as explained, filed the Intervention Order proceedings on 3 October 2006 (two days before the hearing) “in case they came to live” with him, as a result of the proceedings. Pertinently, however, the father conceded in cross examination that at no stage had Mr P stalked the children.
As to the incident at Red Rooster which led to the After Hours Child Protection Outreach Visit referred to in ex 4, the father was referred to the circumstance that, as a result of his hospitalisation, the children were with him at the hospital in an emergency ward where he was a patient, and that the children were “sleeping in the emergency ward”. The father acknowledged that the impact on the children of the events at Red Rooster and his subsequent hospitalisation and arrest were “enormous”, including that at one stage the father had been handcuffed in front of the children. The father acknowledged also that, at Red Rooster, before his hospitalisation, the children were present when he was punched in the mouth by an assailant which “cost me three teeth”, that his mouth was bleeding and that he had “spat the three teeth onto the ground” in front of the children. The father acknowledged that this experience was “frightening” for the children to watch. He said however that throughout the incident he had not been agitated or aggressive and, as I have mentioned above, denied throwing an EFTPOS machine in Red Rooster at a person (who may or may not have been his assailant), and denied being affected by alcohol.
The father acknowledged, in cross examination, that on occasions in the past when the children have been with him he has lived with the children “under bridges”, offering to the cross examiner “show me one piece of paper that my children have suffered by being with me”.
In relation to the circumstance that he was “ill mannered” to Ms L of Relationships Australia on the occasion in March 2006 when he contacted Ms L for the purpose of intake pursuant to the order made on 12 December 2005, the father offered that he was “not coherent” and was “off my face” while still in hospital and “just out of a coma” following the attack on him in February 2006 by Mr P. The father said however in relation to intake with Ms L that he is still “anxious for this to happen” although, as he acknowledged, even since his release from hospital and return to his own home on 7 July 2006, as at the date of the trial, 5 and 6 October 2006, three months later, he had done nothing to reactivate the intake process.
In cross examination, the father was not able to offer any cogent explanation as to why he had “had time” to instigate the Intervention Order proceedings against Mr P (referred to already) but did not “have time” to attend to the intake process.

The independent children’s lawyer’s evidence

The independent children’s lawyer relied upon three reports by Dr K, clinical and forensic psychologist, in private practice since 1986. According to Dr K’s curriculum vitae (comprising part of his affidavit filed on 12 July 2006) he specialises in “Pycho-Legal Evaluation, Reporting and Testimony” and, more relevantly, holds and since 1998 has held the position of consultant, DHS High Risk Infants Panel of Experts, Southern Metropolitan Region.
Dr K prepared three reports, dated 28 July 2005, 29 August 2005 and 7 December 2005.
In relation to the first report, the father did not attend. Mr K records (first report, p 2) that the father was expected to arrive but did not arrive, that a further appointment for the father was arranged, but Dr K was then informed that the father “would not be attending for an evaluation”.
I will refer below to Dr K’s observations in his first report.
In his second report, dated 29 August 2005, Dr K observed that although the father attended on that occasion, he did not participate in the evaluation process.
At this point, it is relevant to mention the Reasons for Judgment of Mushin J dated 5 September 2005, as follows, which includes most of the text of Dr K’s second report (the part in italics):
2On 28 July 2005 [Dr K], a clinical and forensic psychologist, prepared a report in this matter which evaluated both the mother and the children and recommended that the father engage in a psychological evaluation to address the issues with respect to contact with his children. In his report, [Dr K] could not recommend that the children have contact with their father.
3The reason for the adjournment was that I thought [the father] had agreed to participate, in a meaningful way, in the evaluation and thereby hopefully obtain a positive report to enable me to move contact to the next stage. Regrettably, I was wrong. There is a short, three-paragraph report by [Dr K] dated 29 August 2005 which is evidence before me, which noted [the father’s] arrival for the evaluation 20 minutes late, spending approximately 15 minutes in his office and indicating that he is still not legally represented.
4The report continues:
I indicated to him that I was prepared to undertake the assessment with him and also involving interaction between himself and the children and described what the usual assessment process is.
[The father] spoke about the injustice of the system. He spoke negatively about the previous evaluation. [The father] indicated that he was not prepared to go through with the evaluation. I stated to him that we were prepared to assist with any evaluation at a later point if he re-thought the situation at a later stage. He said that he would take his chances and represent himself without having gone through the assessment process.
Based on this contact with [the father], I am not in the position of altering my previous opinion regarding this family situation.
[bold emphasis added]
5From the bar table, [the father] asserted that there is a problem in that [Dr K] wanted the evaluation to be with the children. My reading of [Dr K’s] report is that there is a clear statement of the usual two-stage process; that is, first the evaluation of [the father] as was previously done with the mother, [Ms M], and then an evaluation of [the father] with the children.
6To the extent that the two of them disagree, I prefer at least on an interim basis the view of [Dr K]. He has got absolutely no motive to get this wrong. He is a very well credentialed clinical and forensic psychologist, and his reports seem to me to be appropriately, professionally and expertly prepared.
7In those circumstances, on the basis of the material which I have, it seems to me that [the father] has not cooperated with the evaluation despite the fact that I gave him the opportunity to do so on 3 August. Accordingly, I must return to the recommendations from the first report which I have already quoted. On 3 August I made an order by consent in paragraph 2 of my second order for contact to take place associated with one of the children’s baseball training. The position of the mother through her Counsel and the Child Representative is that that should continue but there be no other order for contact.
As is evident, therefore, the father did not participate in the evaluation process in relation to the first and second reports.
However, the father did participate in the evaluation process for the purpose of Dr K’s third report.
In all of the circumstances, it remains for me to refer to the relevant parts of Dr K’s first and third reports.
Dr K’s first report, dated 28 July 2005, referred to the history of the matter as the result of interview with the mother, including that the father has a Maori background and that the father and the mother were together for seven years, between 1983 and 2000.
Pertinently, Dr K recorded the mother’s information to him that the father has made “constant threats” and (p 3):
… The threats have involved [the father] killing her and the children. She takes these seriously, because of his moods. [The mother] indicated that he has stated things such as: “it won’t take long for me to slit three throats and mine as well.” …
[bold emphasis added]
Dr K referred to his interviews with the children (pp 5-8).
Pertinently, (p 8) Dr K referred to the youngest child’s disclosures of sexual abuse by Mr A, the maternal grandmother’s partner. Rather than paraphrasing, I will set out Dr K’s evaluation as to the disclosures:
When the issue was raised about [Mr A], [R] indicted that his father made him say that “poppy touched him on the willy”. He stated that his father had told him that if he did not say this, he would get really mad. [R] indicated that his father wanted “poppy to get in deep trouble”, but [R] did not want “poppy” to get into trouble. He reported that “poppy” did not do anything. [R] stated: “I knew it was wrong to say things that weren’t true”. He said that he told his mother that it had happened in the backyard, but it was not really true. [R] denied having been sexually touched by an adult. His affect was very serious, and he appeared quite upset discussing the issues in question. [R] appeared quite ashamed of what he had done.
[bold emphasis added]
Under the subheading “Summary” (pp 9-10) of the first report, Dr K concluded:
The relationship between the children and their father has been quite troubled. There is clear evidence that [R] has been coerced by the father to make false accusations about sexual abuse perpetrated by the grandmother’s partner, [Mr A]. It is clear that this has not occurred. It is also clear that [the father] has coerced the child, [R], to say this.
…
In my opinion, it is difficult at this point, due to the fact that [the father] has not been prepared to be involved in the evaluation to come to any other conclusion than to suggest that contact with [the father] and the children at this point is inadvisable. There is reasonable evidence that he presents with some personality difficulties and a tendency towards anger, which has made the relationship between him and the children problematic, and their emotional response to him is one of fear. It is possible in the future that if [the father] is prepared to be involved in an evaluation to assess these issues outlined, it may be reasonable to reconsider contact.
The children themselves appear to be functioning reasonable well, and it appears that their general functioning has improved following the reduction in contact between them and their father. Nevertheless, I do not see this as a long-term prospect and, in my opinion, it would be appropriate that all attempts are made for the father to be actively involved in an evaluation.
[bold emphasis added]

Under the subheading “Recommendations” (p 10) in the first report, Dr K said:
I respectfully recommend to the Court the following:-
1At this point, I would not recommend that the children, [M], [H] and [R] have contact with their father, [Mr C].
2I would recommend that [the father] be encouraged to be engaged in a psychological evaluation to address the above issues, with respect to contact with his children.
[bold emphasis added]
Dr K’s third report, dated 7 December 2005, followed the father’s attendance for interview on 5 December 2005, together with the children (third report, p 2).

In Dr K’s third report, he said of the father (p 4) that he presented as “irritable, hostile and belligerent” as well as “extremely defensive throughout the evaluation”. In the same part, Dr K described the father, in his assessment, as someone who appeared to be prepared to make statements that were “manipulative” and that “distorted the facts”. Dr K concluded (p 4) that the father’s behaviour and approach to the evaluation provided “little confidence in the veracity of his statements” and that, additionally, he “presented himself as victimised” and appeared to show “a tendency to make negative statements about others, including the mother, without adequate consideration of the seriousness of his statements”.

Dr K then set out further observations in relation to the father (pp 4-7) concluding (p 7) that the father presented as a man with “personality difficulties” and with “marked cognitive difficulties”. In particular, Dr K said (p 7), in relation to the father:
2[The father] presented a picture of himself as beyond reproach and his ex-wife as “crazy”. He presented with no attempt towards balance, and little or no attempt to address any of his own issues in a serious manner, but rather presented frank denial and, in general, a circumspect presentation and history.
…
7[The father] presents with hostility just under the surface of his behaviour.
8[The father’s] account of the situation related to [R’s] disclosure is not convincing.
…
[bold emphasis added]

In relation to Dr K’s observations as to interaction with the children (pp 8-9), Dr K observed that the children were “reticent to go to him” and appeared “anxious”, although it “should be recognised that the children have not had contact with their father for some time”.
Dr K observed that the father’s behaviour with the children was “unusual”.
Dr K said in summary (p 9) that there were “some positive aspects with respect to the evaluation” and “considering the context”, that there were “some positive aspects about the contact”. He said however (p 9):
… Nevertheless, all three children presented as extremely anxious, [M] in particular. Additionally, the father’s behaviour is rather unusual and bordered on the problematic. [The father] showed a tendency to be prepared to speak in a manipulative fashion; he was overbearing with the children; and his skills of interacting with the children are problematic.
[bold emphasis added]
In relation to his evaluation of M, Dr K said (p 9) that she had indicated that she is “happy now that she does not see her father as much”; and that she stated that she does not want to see the father with or without supervision; although, as to seeing the father with supervision, she appeared “somewhat more open” to this idea but still appeared “quite ambivalent”.
As to H, Dr K observed (p 10) that H had stated that he “still felt frightened of” the father and is “still extremely ambivalent about future contact”. Dr K said that “like [M]”, H’s position was “slightly more flexible” with the possibility of an external supervisor who was independent, noting however that H presented a “high level of anxiety” in comparison with Dr K’s previous evaluation of him.
As to R, Dr K observed (p 10) that he appeared to be “more anxious than previously” and had stated that if he saw the father he “feels that he would still be worried about being smacked and his father being angry”, and “his father asking hard questions about their mother”.
Under the subheading “Summary” (p 12), Dr K said:
… Despite [the father’s] stated attempts to be involved in intervention programmes, there is little in his presentation to suggest that he has developed insight into his own behaviour. He presents as relatively insightless regarding the impact of his behaviour on others. Recent information would suggest that [the father] continues to have difficulty adhering to legal undertakings.
The children present as anxious and concerned about potential violence, verbal abuse and denigration of their mother, which have been behaviours that they have reported in the past. There is no evidence that the children have been coached by the mother.
As indicated in the original report, of particular concerns is the reports by [R] that he was coerced by the father to make false accusations about sexual abuse perpetrated by their grandmother’s partner, [Mr A]. The children’s relationship with the father remains ambivalent, largely due to the father’s anger and denigration of the mother.
There is no evidence of any systematic attempt by the mother to alienate the father from the children. In contrast, the father’s statements regarding the mother as being “crazy” are extreme, and appear quite unfounded, based on this and the previous evaluation. [The father’s] behaviour within the evaluation and across the series of contacts that have been made with this office provides no re-assurance that he is able to maintain appropriate control over his own behaviour. As such, clear limits are appropriate in the contact with the children.
[bold emphasis added]

Under the subheading “Recommendations”, (p 13) Dr K said:
I respectfully recommend to the Court that:-
1[The father] appears to have little or no insight into his own difficulties. As such, in my opinion, further intervention is unlikely to produce the necessary changes that would allow confidence in unsupervised contact.
For this reason and based on the past history of these issues, it is my opinion, that the most appropriate course of future action is for any contact between the father and the children to be professionally supervised by an independent party.
2Inappropriate behaviour, inappropriate displays of emotion or denigration of the mother or her family should be considered unsuitable, and continued contact should be dependent on the father desisting from such behaviours in contact with the children.
3Supervision needs to extend not only to behavioural features, but with respect to the conversations between the father and the children, largely due to the pattern of denigration which has occurred from the father regarding the mother in the past.
4Supervision to occur on an approximately three-weekly basis over a period of four hours.
[bold emphasis added]

Dr K concluded (third report, p 12, set out above) that there is no evidence of any systematic attempt by the mother to alienate the father from the children.
Of concern is the circumstance that Dr K observed (third report, p 13) a “pattern of denigration which has occurred from the father regarding the mother in the past”.

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of separation from either of the parents or other persons

There was no specific evidence in relation to this aspect of the matter.

Practical difficulty and expense

This did not arise as a significant factor.

The parties’ capacities to provide for the needs of the children, including emotional and intellectual needs

Unfortunately, the parties’ own dispositions at the trial had the effect that there was little if any evidence relating to their capacities to provide for the children’s needs, including the children’s emotional and intellectual needs.
However, it must be observed, I think, that the mother has provided for all of the children’s needs, to her ultimate capacity. In relation to the children’s emotional needs, it is plain, I think, that the children rely upon her, as evidenced by their emotional reliance upon her on the occasion when the father attended (recently, before the hearing) at one of the children’s basketball events, when the children sought her protection by immediately going up to her saying “Dad’s here” with her description that the children “stood right next to me and would not look at the father” even though there was the safety of teachers and other parents there.
The father’s capacity to provide for the children’s needs is lacking, evidenced by, for example, “sleeping under bridges”, and exposing them to the events of 20 January 2003 (although, as must be recognised, this occurred nearly four years ago). However, Dr K observed that the father presented with “no attempt towards balance”, with “hostility just under the surface”, as a person “relatively insightless regarding the impact of his behaviour on others” and as providing “no re-assurance that he is able to maintain appropriate control over his own behaviour”.

The children’s maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children or the children’s parents

There was no evidence as to the children’s progress at school, or their intellectual progress. However, to the children’s credit, Dr K observed that they “appear to be functioning reasonably well”.
According to the evidence provided by Dr K, there is no reason to think that the children’s maturity is not age appropriate, nor that their present lifestyle with the mother is inappropriate for them.
As I have mentioned earlier, the father is Maori, with the consequence that the children have a Maori heritage.
The father, in his case, placed much emphasis upon the necessity for the children to be aware of and participate in the Maori heritage.
However, the mother, for her part, said that the father himself has showed little interest in the Maori heritage, and done little or nothing to engender the children’s interest in that heritage or aspects of its culture and lifestyle.

The parents’ attitude to the children and to the responsibilities of parenthood

The mother, to her great credit, has demonstrated a committed attitude to the children and to her responsibilities to them as their parent.
Regrettably, the father has not, to date, demonstrated a commitment to the children’s best interests, evidenced, I think, by his failure since the order made on 12 December 2005 to embrace the intake procedure at the Relationships Australia Contact Centre, W. In relation to this, I have had full regard to the father’s excuses for not undertaking the intake procedure between December 2005 and the hearing, October 2006. It is sufficient to say, I think, that on all of the evidence, although the father had good reason to not undertake the intake procedure between December 2005 and June 2006, his offered excuses since then were hollow.
Nonetheless, it is commendable that the father has arranged new Government Housing, in anticipation of the children either living with him on the “half shared care basis” or alternatively spending unsupervised time with him, which demonstrates that he is willing to assume the responsibilities of parenthood, in the children’s best interests.

Family violence orders

I have referred above to the circumstance that the mother has a current Family Violence Intervention Order in place until 10 March 2007; to the history relating to that Intervention Order since it was made; to the father’s application for a Family Violence Intervention Order against the maternal grandmother, which was “dismissed outright”; and the father’s further application for a Family Violence Intervention Order against Mr P which, at least in relation to the children, had no basis.

Order least likely to lead to the institution of further proceedings in relation to the children

In my view, having regard to the children’s ages, there is no order which may be least likely to lead to the institution of further proceedings in relation to the children.
In particular, having regard to Dr K’s assessment of the father, to which I have referred sufficiently already, it may be that the father’s adopted role as presenting himself as “victimised”, and his view that “the system” is against him, may have the result that in any event further proceedings may be likely.

Decision and reasons

For the reasons already explained (pars 130-136 above) s 61C(1) of the Act will operate in relation to parental responsibility for the children.
Having regard to all of the evidence, the submissions, and the statutory factors which I must consider, as analysed above, and having balanced all relevant matters, in my view the children’s best interests would be served by an order that the children live with the mother; and spend time with the father, to be supervised at a contact centre, for four hours on each third weekend (having regard to the fourth recommendation in Dr K’s third report, p 13), but with a provision that unless and until the father should arrange intake at a suitable contact centre and notify the mother in writing of such arrangements, this part of the order be suspended, and with a further provision that if the mother should not be able to persuade the children to see the father pursuant to any such arrangements which the father may be able to make, the mother have liberty to apply to the Court for this part of the order to be suspended.
In so concluding, I have had careful regard to whether an order that the children spend equal time with the father, or substantial and significant time, may be in their best interests; and had careful regard to the father’s proposal (written submissions 6 October 2006, last paragraph) that there should be a “half shared care plan” to be “initiated” by himself and the mother. However, on all of the evidence, and my analysis of the statutory factors, I am not satisfied, on balance, that such an arrangement would be in the children’s best interests.
In particular, I have carefully considered Dr K’s evidence as to the “positive aspects” of his evaluation of the father and the “positive aspects” of contact, as discussed by Dr K, and referred to above.
I have considered also the children’s best interests in relation to telephone communication, and the children sending to and/or receiving written communications from the father, and have determined, in the children’s best interests, on all of the evidence, in particular Dr K’s evidence at pars 108-109 above, that the children should, if they wish, be permitted to communicate with the father by letters, cards, email or telephone, to be assisted and facilitated by the mother, provided that the mother supervise any telephone communication, particularly in view of Dr K’s evidence, given specifically in relation to a question as to telephone communication, that “any contact would need to be supervised” (par 109, above). As to the mode of supervised telephone communication, it seems to me that it would be appropriate for the mother to be within reasonable proximity to and within the hearing of the children but not to listen in by handset or speaker. As to communications from the father to the children, I have determined, again based on Dr K’s evidence, that the father should not be permitted to communicate with the children by letters, cards, email or telephone, other than to send to them, addressed to the mother, age appropriate birthday and Christmas letters, cards and gifts, which the mother may read and inspect before at her discretion providing or not providing them to the children, according to her assessment of age appropriate content and suitability. In particular, I have had regard to Dr K’s evidence (par 108 above) that it would be in the children’s best interests to receive written communications from the father if a “third party scrutineer” could be involved. I have concluded that, in practical terms, as the children will live with the mother, she would be the most suitable person to perform that role.
I will, in the children’s best interests, make a non denigration order.
The evidence does not indicate that there would be any benefit to the children by permitting the father to attend at their schools, or their sporting or extra curricular activities. In particular, there is evidence that the children became fearful of the father when he attended a recent sporting occasion. In all of the circumstances, I will make an order that the father must not, unless specifically invited by the mother in writing, attend at the children’s schools, or any of the children’s sporting or extra curricular activities.
However, in my view it would be in the children’s best interests for the father to be kept informed as to their school progress and also to have access to medical information so that if and when the children spend time with the father he will be familiar with their progress and any health issues; and that there be an order, to facilitate the parenting order, that the parties keep each other informed as to a postal address.
Further, I will order that all other orders concerning the children be discharged, that all applications concerning the children be dismissed and that the independent children’s lawyer be discharged.

I certify that the preceding one hundred and eighty (187) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:

Date: 29 January 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MERMAN & COTTON

[2007] FamCA 47

29 January 2007

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