Modlin and Anstead & Anor
[2013] FamCA 955
•6 December 2013
FAMILY COURT OF AUSTRALIA
| MODLIN & ANSTEAD AND ANOR | [2013] FamCA 955 |
| FAMILY LAW – CHILDREN – Best Interests – Parental responsibility – Where the children live primarily with the mother and stepfather – Where there is a history of violence between the mother and father – Where it is in the child’s best interests that the mother and stepfather have equal shared parental responsibility for the children – Where the father shall have no parental responsibility for the children – Where the father shall spend no time with the children – Change of name – Where the children’s names should be changed to the stepfather’s name, retaining the father’s name as a middle name – Where the father is restrained from approaching the children’s school or residence – Where the mother and stepfather are restrained from denigrating the father to the children. | |
| Family Law Rules 2004 (Cth) | |
Pavli & Beffa [2013] FamCA 144
Kemsley and Kemsley (1984) FLC 91-567; 10 Fam LR 125
McCall & Clark (2009) FLC 93-405
Champness & Hanson (2009) FLC 93-407
Barone & Barone [2012] FamCAFC 108
Rice v Asplund (1979) FLC 90-725
| APPLICANT: | Mr Modlin |
| FIRST RESPONDENT: | Ms Anstead |
| SECOND RESPONDENT: | Mr Anstead |
| INDEPENDENT CHILDREN’S LAWYER: | Marsdens Law Group |
| FILE NUMBER: | SYC | 4145 | of | 2012 |
| DATE DELIVERED: | 6 December 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 23-27 September 2013 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENTS: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms S Sloane |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Marsden Law Group |
Orders
(1)The mother, Ms Anstead, and stepfather, Mr Anstead, shall have equal shared parental responsibility for the children, X Modlin (dob: … 2004) and M Modlin (dob: … 2005) and the father, Mr Modlin, shall have no parental responsibility for them.
(2)The children shall live with the mother and stepfather.
(3)The children shall spend no time with the father.
(4)The father is restrained from approaching the children, any school which the children attend from time to time and the children’s residence, either in person or in writing or by electronic communication.
(5)The father is restrained from approaching the mother or any place she may reside or be employed from time to time and except for the circumstances and in the manner prescribed in Order 9 is restrained from communicating with the mother by any means whatsoever including in writing or by electronic communication.
(6)The father is restrained from approaching the stepfather or any place he may reside or be employed from time to time and except for the circumstances and in the manner prescribed in Order 9, is restrained from communicating with the stepfather by any means whatsoever including in writing or by electronic communication.
(7)Orders 4, 5 & 6 are made for the personal protection of the mother.
(8)The mother or the stepfather shall notify the father in writing at the paternal grandmother’s address of the current postal address for the stepfather and of any major long term decisions made in relation to the children, as to any of the following:
a)Medical issues requiring surgical or long-term treatment,
b)Change of school,
c)Change of residence from the NSW Central Coast without being required to provide an address, or
d)Placement of either or both of the children in long term, out of home care.
(9)Unless a Court otherwise orders, leave is granted to the father to serve documents in respect of proceedings under the Family Law Act in relation to the children on the mother and or the stepfather, care of the stepfather at the postal address provided from time to time under Order 8.
(10)The mother and stepfather shall do all things and sign all documents necessary for the children to be respectively known as X Modlin Anstead and M Modlin Anstead.
(11)The mother and stepfather are restrained from denigrating the father or members of the father’s family to the children or in the presence of the children.
(12)The mother and stepfather shall use their best endeavours to ensure that no other person denigrates the father or members of the father’s family to the children or in the presence of the children.
(13)The mother and stepfather are restrained from discussing these proceedings with or in the presence of the children or showing to the children any document connected with these proceedings.
(14)Within two months the father:
a)ensure that the payment made by him direct to Dr R by money order in the sum of $850 has been received by Dr R or cause a fresh payment in that sum to the Legal Aid Commission of NSW. In the latter event, upon receipt, Legal Aid NSW shall disburse $797.50 to Dr R and $52.50 to the mother and stepfather;
b)make payment to Dr R in the sum of $797.50 being half the cost of the attendance of Dr R to give oral evidence; and
c)make payment to the Legal Aid Commission of NSW in the sum of $6,591 being his half share of the costs of the Independent Children’s Lawyer.
(15)Within 14 days the mother and stepfather make payment to the Legal Aid Commission of NSW in the sum of $6,591 being their half share of the Independent Children’s Lawyer’s cost.
(16)Leave is granted to the parties to apply in relation to the wording of these orders within 28 days of the date of these orders, or such further time as the parties agree in writing, on giving at least seven days’ notice to the Court and each other.
(17)Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Modlin & Anstead has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4145 of 2012
| Mr Modlin |
Applicant
And
| Ms Anstead And Mr Anstead |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings involving X Modlin who is nine years of age and M Modlin who is eight years of age (“the children”). It is agreed that the children will live with Ms Anstead and Mr Anstead, the mother and her husband (who is also referred to as the stepfather), and the mother and stepfather will have parental responsibility for the children.
The controversy before the Court arises because the father, Mr Modlin, wants to spend time with the children and to share parental responsibility for them. The mother and the stepfather seek that the father have no time with the children, that he not share parental responsibility with them and that the children be known by the surname “Anstead”. Although there are other issues, those are the main areas of dispute.
Applications
At no time during the trial did the father provide a document setting out the orders he sought. I told him on the first day of the trial that he needed to prepare and submit such a document. As is referred to below, at one early stage the father said that he was withdrawing from the proceedings. He also said that he would not oppose the orders sought by the mother and stepfather. He told me diametrically opposed things about his reaction to the recommendations of the single expert. By the final day of the trial the father still had no document setting out the orders he sought. Ultimately the father told me what orders he sought. The father sought orders to the following effect:
1.That the father, the mother and stepfather have equal shared parental responsibility for the children.
2.That the children live on the Central Coast with the mother and stepfather.
3.That the children spend time with the father:
(a) for a period of six months, every second Sunday for a period of two hours at a Contact Centre; and thereafter;
(b) every second weekend from 6.00 pm Friday to 6.00 pm Sunday and at a McDonalds Restaurant on the Central Coast from 5.00 pm to 7.00 pm on each Wednesday evening; and
(c) every year from 12 noon on Christmas Day until 12 noon on New Year’s Day.
4.That the father communicate with the children by telephone at 6.00 pm each week night except on those weeknights when the children are with the father. For the purpose of that order the father shall supply to the mother a mobile phone for the use of the children.
5.That the parties facilitate communication between each other in relation to the children by the use of a communication book that would accompany the children between the households.
6.That the mother and stepfather do all things and sign all documents to facilitate the provision to the father of copies of all school reports in relation to both of the children.
7.That the mother and stepfather be restrained from causing the residence of the children to be changed to a residence outside the State of New South Wales.
8.That orders be made in terms of paragraphs 4, 6, 7, 8, 9, 10, 11 & 12 of the Minute of Orders Sought by the Independent Children’s Lawyer.
9.That the mother and stepfather be restrained from causing or allowing the children to be known by any other surname but “Modlin”.
The mother and the stepfather sought the following orders:
(reproduced as original)
1.That the children live with the mother and stepfather
2.That the mother and stepfather have sole parental responsibility for the children
3.That the father spend no time with the children
4.That the father be declared a person with a disability, for the purpose of Pt 6.3, r 6.08 of the Family Law rules
5.That in the event the father wishes to seek further orders from this Court or any Court exercising jurisdiction under the Family Law Act, then he shall obtain an order for the appointment of a case guardian. In the event of such case guardian being appointed, that case guardian should be required to obtain leave of the court on behalf of the father prior to filing any application for parenting orders in relation to the child.
6.That the case guardian, upon the making of any application, serve the mother with any such application for parenting orders in relation to the children, give at least fourteen days notice of any hearing date appointed in relation to the matter as to the question of leave
7.That the father is hereby restrained from approaching the children, any school which the children attend from time to time and the children’s residence, either in person or in writing or by electronic communication
8.That the father is hereby restrained from approaching [the mother’s son, Y] or any place that [Y] may reside or be employed from time to time and is hereby restrained from communicating with [Y] by any means whatsoever including in writing or by electronic communication
9.That the father is hereby restrained from approaching the mother or any place the mother may reside or be employed from time to time and is hereby restrained from communicating with the mother by any means whatsoever including in writing or by electronic communication
10.That the father is hereby restrained from approaching the stepfather or place the stepfather may reside or be employed from time to time and is hereby restrained from communicating with the stepfather by any means whatsoever including in writing or by electronic communication
11.That children’s names be officially changed from [Modlin] to [Anstead]
12.That a copy of the judgment, orders and family report be made available to DOCs and the NSW Police
13.That the [Anstead’s] be granted leave to utilize a copy of the judgment, orders, family report and evidence in pursuing a complaint against NSW Police
In addition, the mother and the stepfather sought an order to the effect:
That the father be restrained from making further complaints in relation to the mother to the NSW Police or the Department of Family and Community Services.
By a minute of orders submitted on the last morning of the hearing, the Independent Children’s Lawyer (“ICL”) sought:
(reproduced as original)
1.That the mother and stepfather shall have sole parental responsibility for the children, [X Modlin] (dob: … 2004) and [M Modlin] (dob: … 2005).
2.That the children, [X Modlin] (dob: … 2004) and [M Modlin] (dob: … 2005), live with the mother and stepfather.
3.That the father be restrained from approaching any school which the children attend from time to time and the children’s residence.
4.That the mother or the stepfather notify the father in writing at the paternal grandmother’s address of any major long term decisions made as to any of the following:
4.1 Medical issues requiring surgical or long-term treatment,
4.2 Change of school,
4.3 Change of residence from the NSW Central Coast without being required to provide an address, or
4.4 Placement of either or both of the children in long term out of home care.
5.That the mother and stepfather do all things and sign all documents necessary for the children to be known as [X Modlin Anstead] and [M Modlin Anstead].
6.That the mother and stepfather be restrained by injunction from denigrating the father or members of the father’s family to the children or in the presence of the children or at all.
7.That the mother and stepfather use their best endeavours to ensure that no other person denigrates the father or members of the father’s family to the children or in the presence of the children.
8.That the mother and stepfather be restrained by injunction from discussing these proceedings with or in the presence of the children or showing to the children any document connected with these proceedings.
9.That the father within 14 days make payment to Dr [R] the sum of $797.50 being half the cost required by Dr [R] for attendance to give oral evidence.
10.That the mother and stepfather within 14 days make payment to Dr [R] the sum of $797.50 being half the cost required by Dr [R] for attendance to give oral evidence.
11.That the father within 14 days make payment to the Legal Aid Commission of NSW the sum of $6,591 being his half share of the ICL’s costs.
12.That the mother and stepfather within 14 days make payment to the Legal Aid Commission of NSW the sum of $6,591 being their half share of the ICL’s cost.
During final submissions learned counsel for the ICL said that the ICL did not intend by Order 5 that there would be a change to the existing middle names of the children. Thus I understand the proposal to be:
5.That the mother and stepfather do all things and sign all documents necessary for each of the children’s names to be changed to include an additional middle name, “[Modlin]”.
The Appointment Of Case Guardians
The mother and stepfather sought the appointment of a case guardian for the father. The father made assertions about the mother’s fitness to run her case but I ascertained from him that he did not seek the appointment of a case guardian for her.
I explained to the mother and stepfather that their application for the appointment of a case guardian for the father was late and, in my view, misconceived. In any event I understood that they did not press their application. If there was to be such an appointment it should have been sought and made long before the commencement of the final trial.
The appointment of a case guardian is not discretionary. It goes to the integrity of legal proceedings that parties have the capacity to present their case or to instruct a lawyer to do so. The Family Law Rules 2004 (Cth) require the appointment of a Case Guardian for any party who is a person with a disability. Rule 6.08 provides:
6.08 Conducting a case by case guardian
(1) A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.
(2) Subrule (1) does not apply if the court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting the case.
Note 1: For service on a person with a disability, see rule 7.09.
Note 2: If a case is started by a child or person with a disability without a case guardian, the court may appoint a case guardian to continue the case.
The Dictionary to the Rules defines person with a disability in this way:
person with a disability, in relation to a case, means a person who, because of a physical or mental disability:
(a) does not understand the nature or possible consequences of the case; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.
Perhaps in raising this issue the parties had all confused disability with compromised mental health. In any event there was no evidence before me that warranted either of the parents being found to be persons with a disability in the sense that term is used in the Rules. To my lay observation albeit there was the occasional odd remark and illogical proposition, and in the case of the father, changed positions on issues, the parents were able to present their cases.
Requirement For The Father’s Case Guardian To Have Leave To Apply
The wording of the orders proposed at paragraphs 5 and 6 of the orders sought by the mother and stepfather has the flavour of an order that could be made under s 118 of the Act – an order in the nature of a declaration that the father is a vexatious litigant. I say has the flavour of such an order but as it is framed an order in terms of paragraph 6 would not achieve the ends for which s 118 was designed. If a person is declared vexatious and is obliged to obtain the leave of the Court before progressing an application, then that issue would be dealt with before the application could be served on another party. That is the point. Section 118 allows a barrier to be erected protecting unwilling respondents from incurring the emotional and financial cost associated with responding to an application that is vexatious or otherwise without merit.
In any event, in my view there is no basis for a declaration that the father is a vexatious litigant. Typically a vexatious litigant will have been found to have filed repeated applications which either had no reasonable prospect of success or which were filed for an ulterior purpose, such as to harass, embarrass or threaten another party. That is not the situation here. The father has made one substantive application and even though the orders sought were changed and poorly defined, they were understandable and within a possible range of outcomes. Indeed, it is clear from the reasons set out below, all other things being equal and perhaps subject to supervision, there are and could in the future be, important relationships between the father and each of the children.
Written Evidence
The father relied on:
Affidavit of Mr Modlin filed on 22 August 2013
Initiating Application of Mr Modlin filed 16 July 2012
The mother relied on:
Affidavit of Ms Anstead filed 23 August 2013
Affidavit of Mr Anstead filed 26 August 2013
Response filed 21 August 2012
Oral Evidence
At the end of his cross-examination the father sought and without objection, was granted leave to present oral evidence from Ms P. She was briefly cross-examined. As it transpired, no orders were sought that would involve Ms P. I will say no more about her evidence.
Expert Evidence
The following expert evidence was relied on:
Report of Single Expert Dr R dated 30 August 2013
Child Responsive Program Memorandum prepared by Family Consultant dated 23 November 2012
The Hearing
The hearing commenced on 23 September 2013. The parties were unrepresented and the ICL was represented by counsel.
Immediately prior to the commencement of cross-examination of the applicant father, he said that he withdrew his application. He said, in effect, that he could not afford the cost of proceedings, that he had a heart condition and was unwell and something to the effect that he realised that the mother and the stepfather would never give up in their quest to exclude him from the lives of the children. I caused an enquiry to be made about the availability of a duty solicitor and understood that no duty solicitor was available. So as to ensure that the father was aware of the possible consequences of withdrawing from the case, I asked counsel for the ICL to draw up the terms of orders proposed by the ICL and to discuss them with the parties. Once that was done it became apparent that there would be matters of controversy between the ICL and the mother and stepfather including, the mother and stepfather’s application to change the names of the children from Modlin to Anstead, the terms of orders about communication between the mother and stepfather and the father and the various injunctions sought by the mother and stepfather. The father repeated that he did not want to be heard against the making of the parenting orders proposed by the mother and stepfather, including the order for a change of name but said something to the effect that he was not happy with injunctions of the type sought by the mother and stepfather. He then stated that he might as well continue with his application. Thus the trial resumed as a contested hearing with all parties involved. It ultimately transpired that the father was not sanguine about many of the parenting orders proposed by the mother and stepfather and the ICL.
On 27 September 2013, judgment was reserved.
Short History
The father was born in 1963 and at the time of the hearing was 49 years of age. The mother was born in 1969 and at the time of the hearing was 44 years of age. The parents commenced cohabitation in 2003. They do not agree about the date of final separation. The mother contends that the final separation was in August / September 2009. The father contends that it was on 15 April 2011. The parents lived under the same roof at times after September 2009. It is not possible or necessary to be specific about the date of separation.
There are two children of the relationship – X, who was born in 2004 and M, who was born in 2005. The child X has Autism Spectrum Disorder (ASD) and an intellectual disability. The child M has a congenital chromosomal disorder and mild global delay.
The stepfather was born in 1956 and as at the date of the hearing was 57 years of age. He married the mother in September 2012 and he was joined as a party to these proceedings on 19 November 2012.
Credibility and Submissions
There are some factual disputes and there is little by way of independent corroboration of the parties’ evidence in relation to those issues. Therefore it is relevant to refer to the creditworthiness of the parties.
The father gave his evidence in a generally upbeat and gregarious manner but displayed a range of moods and attitudes. As is set out above, at the start of the hearing he said he was withdrawing from the proceedings and very soon thereafter changed his mind. He twice changed his attitude to the recommendation of the single expert that he see the children only three times a year, on his and their birthdays. The father failed to disclose relevant information. The evidence about his adult daughter and the nature of their relationship was not included in his evidence in chief and he refused to give further evidence about her in cross-examination. Remarkably, the existence of his pregnant European fiancée was never the subject of evidence, whether by way of disclosure to Dr R, inclusion in his affidavit, his Parenting Questionnaire[1] or his oral evidence. During final submissions at the conclusion of the trial he said that he is engaged to marry a woman who lives in Europe and that she is pregnant with his child. This only came to light in discussion about injunctions that might restrain him from approaching the children and others, when the father rhetorically asked a question to the effect - what would happen if he and his fiancée accidentally met the children or the mother and stepfather while visiting the Central Coast. Happily the health problems referred to by the husband did not prevent his involvement in the proceedings through to the end of the trial.
[1] For example question 47 calls for the details of any person who might live with the children full time or from time to time.
The father objected to answering some questions. He said that he was suspicious about the motives of the mother and the stepfather in pursuing various lines of enquiry in cross-examination. At times he appeared thoughtful and careful in responding to questions. At other times he was glib and off-hand. The father was not a credible witness.
The mother displayed a range of emotions during her oral evidence. On some occasions when she was in the witness box and when she was at the bar table she broke down and required some time to compose herself. Although she said that she was very much adversely affected by the presence of the father in the Court room, she nevertheless insisted on personally cross-examining him. That was not necessary as she had the option of relying on the stepfather to undertake that role.
The mother said that she has an excellent memory but distinguished between the quality of her recall of important and less important events. It is apparent that in interviews and other records her statements to others have at times been unreliable and out of context. For example the mother did not recall a particular interview at a school but said that the matters, recorded as her statements of current events in that interview, reflected things that had occurred some months before.
The mother made many concessions against her interest in the proceedings. Not least among them is the main thrust of her case. It is the mother’s evidence that at times in the past and in certain circumstances in the future, her parenting capacity was or could be substantially impaired. The mother’s memory is not accurate and although I did not discern any attempt by her to mislead the Court, she was not a good witness.
The stepfather was not successfully challenged in relation to any significant issue in respect of which he has first-hand knowledge. He no doubt sees matters from his perspective and understandably, from the perspective of the mother. That said, I accept him as a witness of truth.
There are significant factual disputes in the proceedings. Not all of them can be resolved. The parents have compromised mental health and for that reason alone, they are not entirely reliable witnesses.
The disputed issues cannot be resolved by generally preferring the testimony of one of the parents over that of the other. Where findings are possible, they must be made issue by issue.
Background Facts
The father has an adult daughter from an earlier relationship. From something the mother told Dr R, it may be that her name is Ms B. The father is in communication with that daughter but I understood him to say that, although he recently paid for her to have a trip overseas, he was not currently on good terms with her. The father declined to answer some questions about his older daughter or her circumstances, saying he was concerned that the mother and stepfather would somehow further damage his relationship with her or would try to do so.
The mother has a son from a previous marriage, Y. He was born in 1997 and as at the date of hearing was 16 years of age.
In July 2003 the father and mother commenced their relationship and in October 2003 they started living together in Sydney. They lived at various addresses over the years.
In mid 2004 their first child, X, was born. The child X has Autism Spectrum Disorder (ASD) and an intellectual disability.
In late 2004 the mother was prescribed anti-depressants.
In 2005 their second, child, M, was born. She has a congenital chromosomal disorder and mild global delay. The mother ceased taking anti-depressants around this time.
In November 2006 the mother was struck by a car on the way to work. She received Workers’ Compensation for several years and resumed taking anti-depressants.
The parents first separated in December 2006.
In December 2006 the mother obtained an Apprehended Domestic Violence Order (“ADVO”) against father following an argument. The mother told Dr R that the father threw her down the hall of their home, fracturing her toe. The police attended, however charges against the father were later dropped. Around this period the mother contacted the National Security Hotline to report the father in relation to bombs. As I understand it, as a result of that contact, the father was arrested and admitted to Q Hospital. The father was scheduled under the Mental Health Act and was released after a week.
The mother was taken to hospital with “nervous shock and bruising”, was admitted to a psychiatric facility and scheduled under the Mental Health Act. The children were placed in foster care during this period. When the children were returned to the mother’s care, she relocated with the children to Queensland, without the father’s knowledge.
In February 2007 the father visited the mother and children in Queensland and returned to Sydney with the children. The mother claims this was without her consent.
Later in February 2007 the mother also returned to Sydney and resided in Suburb W with the children. The parents subsequently resumed cohabitation at Suburb H.
In June 2007 the mother ceased taking anti-depressants after having a manic reaction to that medication.
In October 2008 the mother began fortnightly treatment under Dr O for depression and anxiety, which continued until late 2011. She was prescribed Valium and, although she did not take it, a mood stabilising medication. Dr O thought she had “Bipolar III”.
In August or September 2009 the parents separated for the second time. The mother contends that this was the final separation. The mother and the children moved into social housing on the basis of the mother’s disclosure of financial hardship and domestic violence.
In early 2010 the father took M to a Hospital in relation to nasal problems. A doctor recommended the removal of a foreign object from her nose. The object was causing an ulcer and odour. Although the mother had previously taken M to a health care professional regarding this issue it had not been resolved. The mother later arranged for the removal of the foreign object.
In 2009 or 2010 the mother and the children moved to Suburb A. There are conflicting versions of events as to when, for how long, and where on the property, the father resided at this location. Suffice it to say that at times the parents lived under one roof during that period.
In January 2010 the mother was granted an ADVO against the father.
In February 2010 the father smashed glass in or near the front door of the mother’s home and then kicked the door off its hinges. He assaulted the mother. On 25 February 2010 the father was charged with break and enter, common assault, contravention of ADVO, unlawful entry and intentionally or recklessly destroy/damage property at the mother’s residence. The father was placed in the mental health wing at RX Hospital for a week and then was held on remand at a Correctional Facility for a week.
On 4 June 2010 the Local Court ordered a report by Dr S, forensic psychiatrist, in relation to the father’s criminal charges and he made a recommendation for a release pursuant to a Mental Health Order with a diagnosis of Bipolar I.
On 30 September 2010 the Sydney Local Court heard the charges against the father in relation to an alleged breach of an ADVO. A section 32 Mental Health Order was issued. Section 32 of the Mental Health (Forensic Provisions) Act (NSW) 1990 allows for the diversion from the usual criminal sanctions of those found to have committed a crime where certain mental health issues exist and a treatment plan can be undertaken. On 27 October 2010 the charges were dismissed and the father was released under a section 32 Mental Health Order.
In late 2010 or early 2011 a former partner of the maternal grandmother was charged and convicted of molesting the mother when the mother was a child. He was sentenced to eight years in gaol.
On 14 February 2011 the father was seen by Senior Clinical Psychologist, Mr G of the N Health Service, who wrote[2] that the father was “not suffering from a psychiatric disorder for which treatment is necessary” and also “In view of his current stable mental state, no further contact with our service is planned”. The father had been a client of the Service for two months.
[2] Letter dated 14 April 2011 “To Whom It May Concern” annexure D to the father’s affidavit sworn 22 August 2013
According to the father, the parents finally separated on 15 April 2011. The father had no contact with the children from 15 April 2011 to 19 August 2011.
On 19 August 2011 an ADVO was taken out against father for the protection of the mother, the children and the mother’s son Y. This was extended and ultimately expired on 18 February 2013.
Between August and November 2011 the father and the children spent each weekend together.
In late 2011 the mother met Mr Anstead. He was born in 1956 and as at the date of the hearing was 57 years of age
In early November 2011 the child X went missing in a National Park while in the father’s care. The father contacted police and the child was returned safely. At about that time the father sent 13 photographs of his penis from his mobile phone to that of the mother. As I understand his evidence, the father denies deliberately sending the photographs to the mother. He gave evidence to the effect that the photographs were on his phone for the purpose of ‘sexting’ his then girlfriend. At about that time the child M returned from a visit with the father saying that the father swore at her.
In November 2011 contact between the father and the children ceased. It is the mother’s evidence that contact ceased because the father did not press for contact for a period and for her part, she thought that, as a result of the conduct referred to above, he would be in gaol for breaching the ADVO.
Sometime in 2011 Y went to live with his father.
In early 2012 the mother received victim’s compensation in relation to domestic violence by the father.
By February/March 2012 the stepfather was living for most of the time at the mother’s home although he maintained a separate residence in the Manly area.
In March 2012 the father sought to initiate mediation with the mother at a Family Relationship Centre but the Centre deemed the matter, or the parties, unsuitable for mediation. The father participated in the Interrelate Family Centres’, Building Connections Positive Parenting seminar workshop.
On 30 April 2012 there was a variation of the ADVO, the effect of which was to prevent the father from coming within 50 metres of the mother’s house or contacting the mother.
On 6 June 2012 the father’s solicitor sent the mother a proposed interim parenting plan. The mother did not respond.
On 4 July 2012 the father completed Anglicare’s “Engage 4 Dads” program.
On 16 July 2012 the father commenced these proceedings by filing an Initiating Application in the Federal Magistrates Court, as the Federal Circuit Court was then known.
On 3 September 2012 orders were made including the appointment of an ICL and the transfer of the proceedings to this Court.
In September 2012 the mother married the stepfather.
On 27 September 2012 the mother and stepfather moved to the Central Coast with the children.
On 8 October 2012 the matter was mentioned before this Court. The father filed Application in a Case seeking that the children be returned to the Sydney metropolitan area and re-enrolled at their former specialised schools. A request was made for an urgent interim hearing.
On 1 November 2012 the mother filed a contempt application and alleged that the father made false statements in his affidavit.
On 15 November 2012 the parents met with a Family Consultant. On 23 November 2012 the Family Consultant’s Memorandum was released. The Family Consultant recommended that a Chapter 15 Single Expert Report be prepared, due to the mental health issues raised by each party.
On 19 November 2012 orders were made for the father to spend time with the children for three hours at Christmas. The stepfather was joined as a party to the proceedings. Orders were also made restraining the mother from removing the children from L Public School. Dr R was appointed as the expert to prepare a report. The mother’s application that the father be dealt with for contempt was withdrawn and dismissed.
On 11 January 2013 the father filed a contempt application. The father asserted that the stepfather lied about the children’s accommodation.
It was the mother’s evidence that an application to renew or extend the ADVO protecting her and the children from the father was listed in a Sydney court in early 2013. She said that she had no prior notice but received a call from a police officer on the day of the hearing, asking her to attend the Sydney court from her Central Coast home, immediately. The mother was unable to travel to Court in time and understands that no further or extended ADVO was made.
On 18 February 2013 the father’s contempt application was heard and dismissed.
On 27 February 2013 the mother filed an Application in a Case. She wanted the orders made on 19 November 2012 to be varied, the father to be restrained from filing further applications in the matter until the Chapter 15 Expert Report was released and the father to have no contact with the children until the release of the report.
On 15 March 2013 the father filed an Application in a Case requesting that he spend two hours with the children on Sundays.
On 11 April 2013 orders were made varying the orders of 19 November 2012 to allow the mother to move the children to an address within ten kilometres of her current address. Otherwise, the applications of the father and of the mother were dismissed.
On 12 June 2013 orders were made listing the matter for final hearing for five days commencing on 23 September 2013. It was also ordered that the applicant and respondents each pay half of Dr R’s fee for the report into the Marsdens Law Group’s account.
On 16 July 2013 the mother and stepfather attended on Dr R. On 17 July 2013 the father attended on Dr R.
On 6 September 2013 Dr R’s report, dated 30 August 2013, was released to the parties.
The Expert Evidence
The single expert was Dr R, a Child Adult and Family Psychiatrist with rooms at Suburb NN. Her qualifications include the following: MBBS (1977); Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP) (1987) and Certificate in Child and Family Psychiatry (1988).
Dr R has undertaken extensive clinical experience since 1987. Dr R currently works in private practice in supportive and exploratory psychotherapy, child and family psychiatry.
Dr R prepared a report in this matter dated 30 August 2013 and it was released to the parties on 6 September 2013.
The father presented as “distressed and articulately described being ‘half mad with grief, in total despair’ about not seeing his children, whom he alleged he had previously had a good relationship with”. Dr R was confident that the father “has paranoid and narcissistic personality traits and, quite probably, a personality disorder”.
The mother was reported to present as “a vulnerable woman, by virtue of her past traumatic experiences, psychiatric history of Bipolar Disorder and anxious personality. She clearly also has strengths in being of above average intelligence and currently in a supportive relationship, as well as having had a positive therapeutic experience with Dr O. With Mr Anstead, she appears to be currently parenting the children well.”
Dr R reported that the stepfather presented as “a rather controlling, assertive…with an upbeat manner. He was articulate, had a reactive affect and appeared euthymic.”
Dr R observed that the mother was more insightful about her mental health than the father was about his mental health. She recommended the mother as the more appropriate person to be the children’s residential parent.
Dr R stated at page 24 of her report that given the children’s “significant developmental disorders, there is a more than usual need for predictable and consistent parenting and life circumstances”.
At page 23 of Dr R’s report she expressed the view that the children will benefit from having a meaningful relationship with both parents, if the father is able to engage with them positively. However, Dr R had the following reservations in relation to the children spending time with the father:
·contact would be markedly detrimental to the mother’s mental health, which would be highly detrimental to her parenting of the children;
·the father’s narcissistic and paranoid attitudes and behaviours make him more self-focussed than child-focussed; and
·the father has not had experience of parenting the children for any length of time for some years. Therefore, if the children were to commence spending time with the father, that time would need to commence in a contact centre to ascertain the father’s capacity to meet the children’s needs.
At page 20 Dr R reported that the child X presented as suffering from moderately severe autism and moderate cognitive delay. He ignored Dr R’s attempts to engage him and was not interviewed by her.
The child M presented to Dr R as a shy, pleasant, well regulated seven year old with cognitive developmental delay. When M drew a family picture, she did not want to add “[the father]” to the picture. At page 4 of her report, Dr R reported that M said she did not want to see the father because he is “mean”, “went to gaol, naughty”. M did not elaborate further.
At page 20 Dr R agreed with the observations of the Family Consultant on 23 November 2012, that the significant lack of time spent with their father would have caused deterioration in the children’s relationships with him.
Dr R noted at page 4 that M referred to the stepfather as “dad”. Dr R also observed that the mother repeatedly referred to the father as “[Mr Modlin]” and at page 5 of the report, wanted “...things with [Mr Modlin] to be over”.
Both parents have had significant histories of mental health issues. Dr R reported at page 24 that she had marked concerns about the stability and nature of the father’s mental health and the potential for psychological harm to the children should the father interact inappropriately with them because of his personality difficulties and negative attitude to their mother and stepfather.
Dr R concluded her report with “the potential benefits for the children of spending regular time with their father are far outweighed by the definite adverse impact contact would have on their mother’s mental health and parenting. I would support the children being with their father in a contact centre around their and [the father’s] birthdays”.
The Legislation
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60B sets out the objects of the Part and the principles underlying those objects. Relevantly[3] the section provides:
[3] S 60B(4) adds a further object - to give effect to the Convention on the Rights of a Child done on 20 November 1989 at New York
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child‘s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
….
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
As to the layout of these reasons, I will:
a.Set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
b.Where possible and relevant, consider and make findings about matters set out in s 60CC;
c.Consider and make findings about parental responsibility, including considering the presumption in s 61DA;
d.Apply s 65DAA if relevant and assess the proposals in light of that provision;
e.If 65DAA is not relevant, assess the proposals against the best interests criterion;
f.Consider and make findings about living arrangements; and
g.Make orders.
The Parties’ Proposals
Although the orders sought are differently expressed, it is my understanding that it is agreed that the children will live with the mother and stepfather and that they will have parental responsibility for the children. It is agreed that the mother and stepfather will notify the father, through his mother of certain events.
The controversial matters are as follows.
The father seeks to retain some involvement in decision making about the children. He opposes the children being relocated outside of NSW. He wants to spend time with the children. He proposes that for six months there be day-only time at a contact centre and thereafter on an unsupervised basis, alternate weekend from Friday to Sunday night and for two hours each Wednesday evening spent at a McDonalds Restaurant on the Central Coast. He seeks time between Christmas Day and New Year’s Day each year. He wants to be able to ring the children at 6 pm each week day night, on occasions when they are not already with him. He seeks that the children retain their current names.
The mother and stepfather seek that the father not have any parental responsibility for the children. They seek that the father spend no time with the children and that he not be permitted to communicate with them. They seek permission to change the children’s surname from Modlin to Anstead. They seek a number of injunctions to prevent the father approaching the children, themselves or Y or places connected with any of them. They seek the father be restrained from making further complaints in relation to the mother to the NSW Police or the Department of Family and Community Services. The mother and stepfather oppose any injunctions being made against them but would agree to the Court noting their agreement in similar terms to those of the proposed injunctions.
The ICL agrees with the mother and stepfather’s proposals in relation to parental responsibility, spending time and communication. The ICL proposes that the children’s names be changed but only by the addition of “Modlin” as a middle name to appear after their existing middle names. The ICL seeks an injunction to restrain the father from approaching the children but also seeks a number of injunctions that would prevent the mother and stepfather from denigrating the father to the children.
The range of dispute on the key areas seems to be:
·Should the father have equal shared parental responsibility or no parental responsibility;
·Should the father spend no time with the children or if he spends any time, how much and under what conditions;
·Should the father be permitted to communicate with the children at all;
·Should the father be permitted to communicate with the mother and stepfather at all;
·Should the children’s names be changed to Anstead. If so should Modlin remain as a middle name;
·Should injunctions be granted to restrain the father in aid of the decision about time and communication; and
·Should orders be made to enforce the mother and stepfather’s role in maintaining a positive image of the father in the minds of the children.
Section 60CC Considerations
Relevantly S 60CC provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3). Subsections 60CC(2) and (3) set out primary and additional considerations. Turning to the relevant considerations:
Primary considerations:
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[4] The enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[4] McCall & Clark (2009) FLC 93-405.
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a “meaningful relationship”.[5]
[5] Champness & Hanson (2009) FLC 93-407.
Dr R’s reported recommendation was to the effect that there should be a place for the father in the lives of the children. After I told her that the mother told me that she would not comply with an order for any time, including an order for time on only three brief occasions each year and that the father had told me that he would not exercise contact if it was to be limited to those occasions, Dr R said that she would then recommend that the father have no time with the children. Dr R based her initial recommendation of only three occasions a year, not just on the risk of poor behaviour by the father, but importantly on the destabilising impact on the mother of more extensive contact.
The evidence, including the well supported opinion of the single expert, supports a finding that there have been meaningful relationships between the father and the children and that, was it not for countervailing factors, there is potential, provided some safeguards are in place, for those relationships to be meaningful in the future.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
‘Abuse’ and ‘family violence’ are defined terms.
“abuse” , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Section 4AB provides:
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.
The mother and the children have been exposed to family violence at the hands of the father. There is no dispute about that proposition.
The mother’s affidavit sets out a number of allegations of violence against her by the father. I note, without setting out the detail, the mother’s evidence at paragraphs 22, 23 24, 26, 28, 30, 32 and 35 of her affidavit. The father neither challenged that evidence in cross-examination nor addressed the specific allegations in his own evidence. In those circumstances I accept the mother’s evidence.
The mother and the children were the victims of a home invasion by the father in February 2010. It is common ground that the mother was very badly affected by that incident. The father told Dr R that on that occasion the mother would have been in fear for her life and that what he did was a “dreadful, terrible, terrible thing..” He told Dr R that the break-in left the mother “with deep scars”.
The father told Dr R that the children were asleep when he broke in. However, the mother attributes M’s derogatory references to the father, to a memory of the smashed front door, of blood on a wall and the police attending at the house on that occasion.
I note that a reported threatening conversation after Court on 18 February 2013 lead to a provisional ADVO against the father for the protection of the mother and stepfather. As I understand the father’s case, the person who threatened the stepfather is not connected with him (the father). Without more evidence that suggests further reason for concern about family violence by the father.
As between s 60CC(2)(a) and (b), as directed in s 60CC (2A), I give more weight to the latter consideration.
Additional considerations
(3)(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;
Taken as a whole, the evidence suggests that this is not a relevant consideration. Dr R did not interview the child X. Given the seriousness of the other considerations, and the fact that the child M too suffers some delay, her views would not be influential in these proceedings.
(3)(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);
The mother is the primary care giver for the children. Over the last 12 months or so, the stepfather has also played an important role in their lives.
It is the mother’s evidence that X is afraid of his father. That is the only evidence on that issue.
The father said that he was concerned about damage to the children and to him arising from his separation from them. He was concerned that both X and M would have a sense of their father having abandoned them. The father considers that his relationship is equally strong with each of the children. The father feels that he has lost two years of his children’s lives and that he will never be able to recover that time.
The father said that he would be willing to work with the mother and the stepfather to restore his bond with the children. The father said that he would like as much time with the children as possible, to be able to embrace them, to take them to swimming and to buy them things.
The father said that he had a particular concern in relation to M because he had heard that for female children, the loss of a father can make it difficult in the future for them to have relationships.
(3)(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;
This factor is not of importance in these proceedings. It is not argued by either of the parents that future parenting orders should be based to a significant extent on their taking or failing to take opportunities to be involved in decision making about or spending time with, the children.
The children have lived with the mother at all relevant times and she has made decisions about them. For periods the father has not spent time with the children and has not been involved in decision-making about them but that is largely explained by the circumstances. For much of the time since separation the parties were engaged in these proceedings and for a period there was an ADVO in place preventing the father’s involvement with the children.
(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 is very critical of the mother and stepfather and yet presses on the court, orders whereby the children will mainly live with them. Therefore, it is an agreed fact that the children are safe with the mother and stepfather.
The mother’s evidence is replete with examples of the father harming the children or harming her in the presence of the children. In particular the mother deposed to finding the children living in squalor with the father after he removed them from her care in Queensland in February 2007 and came back to Sydney. She says that M had a large infected cut on her hand, sustained while she was with the father. The mother took M to a hospital where she was treated. The paediatrician reported the incident to DOCS.
I gather that there is a child support dispute simmering away. Despite the reference in the father’s communication to the mother in April this year to him having access to a one third interest in a $40M development, it is not possible to be confident about the father’s financial circumstances. For that reason it is not possible to find that he has failed to provide appropriate financial support to the children.
The evidence of the mother and children requiring public housing from time to time suggests that at those times the parents were not able to maintain the children from their own resources.
(3)(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;
There is little if any evidence on this point. The father says he is concerned about what would happen to the children if the relationship between the mother and stepfather was to break down, particularly if some link is not maintained between him and the children.
On at least one occasion the children were placed in care. There is no suggestion that, respite aside, this would be desirable in the future.
(3)(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;
Apart from the question of expense, in a way this is the main issue in the case. It is agreed that the children should live with the mother and stepfather and that they should have parental responsibility. It is the mother’s case that she cannot cope if the father is involved with the children. The evidence supports that position. In my view, that makes it impracticable to maintain personal relationships between the children and the father.
(3)(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 father said that he has had health concerns arising out of his return to smoking, a feeling of depression, symptoms of asthma as well as palpitations. The father has not had any significant medical treatment in relation to any of the concerns he has experienced since separation and in particular since he last saw the children at the end of 2011. He has continued to attend Alcoholics Anonymous (AA) meetings although perhaps on an average of only once a week whereas he use to attend more regularly. In particular the father has not seen a doctor or a psychologist about his depression and has not taken any medication for depression since November 2011.
The father told Dr R that when he was young he suffered abuse from his father, who was a strange man. His father constantly told him that he was an idiot, while the father’s brother had been “the golden boy”. The father said that his father had behaved in a similar manner to the father’s younger two half-brothers, and that one of them had been under a psychiatrist.
The father reported that his first contact with mental health services was when he was 26 years of age and went to AA. At that time he went to a psychiatrist who did not give him a diagnosis.
The father said that in late 2006 the police entered his home carrying guns. He was taken to Q Hospital where he was scheduled but released after one week. The father thought that the mother had told the police that he was a terrorist who had planted bombs.
The father said that he went to see Dr E in 2009, because the wife wanted an assessment. He said that Dr E told him that he was a “hard worker, good bloke” with social anxiety.
Dr R reported[6] “While I could not confidently confirm from this assessment and the evidence available that [the father] has a chronic clinical psychiatric (DSMIV axis 1) disorder characterised by paranoid features, I have no doubt he has paranoid and narcissistic personality traits and, quite probably, a personality disorder.”
[6] Page 22 of Dr R’s report
Dr R said that only the untested reports of the mother would support a diagnosis of psychotic disorder or personality disorder. However, the emails from the father cited by the mother and his reference to sexual abuse and paedophiles in his interview with Dr R and his reference to a “political element” in his August 2013 affidavit suggested to Dr R that he holds, at the least, overvalued ideas or that he is delusional. Dr R noted that despite having a very significant psychiatric history, with at least one psychotic episode, the father did not have the insight to understand that he would be questioned (by her) about that history and his interests during a court ordered psychiatric assessment.
Dr R also noted the references in earlier hospital records to the father having narcissistic traits. She noted that his discharge summary from RX Hospital in 2010, following him breaking into the mother’s home, recorded that his diagnosis had been: “acute psychotic episode, (drug-induced?), narcissistic personality traits” and referred to a previous diagnosis, (which Dr R presumed was from his 2006 admission to Q Hospital) of “Adjustment reaction, antisocial, paranoid and narcissistic (personality) traits” In her report Dr R said that those paranoid and narcissistic qualities were evident in her assessment of the father.
The father challenged Dr R about her diagnosis that he is narcissistic. He put to Dr R that her opinion conflicted with that of the F Mental Health Service who reported to the effect that the father did not have a mental health issue that required treatment. Dr R did not agree that those opinions are inconsistent. I accept that to be so.
Something was put to Dr R by the father to the effect that if he had helped the mother to cease her abuse of alcohol then he was a positive force in her life and Dr R agreed and said something like: if what the father said was true then he had been a positive force in the mother’s life.
During her cross-examination by the father, I understood Dr R to accept, that if Dr E said that the father’s only mental health illness was “social anxiety” then she disagreed with that diagnosis. In this regard I note that whatever might have been the case in 2009, in his letter dated 25 March 2011[7] Dr E did not refer to such a diagnosis. The assessment referred to in that letter was a likelihood of a mood disorder. He referred to the acute onset of auditory hallucination and paranoid delusions in February 2010. Contrary to the father’s case, he could not confirm any link between the psychotic symptoms and the father taking the drug, Reductil. Dr E said that it was clear that the father had developed an acute psychotic disorder but was uncertain whether that was part of a mood disorder, a schizophrenic illness or a drug induced psychosis. He wrote: “The prominence and bizarreness of delusions and hallucinations and persistence of the auditory hallucinations in an attenuated form are suggestive of a schizophrenic illness but not diagnostic.” The letter also records that the father told Dr E that Dr S, to whom the father was sent for a medico-legal report in connection with the 2010 criminal proceedings, had diagnosed the father with bipolar affective disorder.
[7] Annexure Q to the mother’s affidavit
Presumably by way of rhetorical question, at one point the father said something like – how could he have a mental health illness if he is able to repair houses owned by politicians? Doing the best I can with that non sequitur, I think the proposition is: the father could not be mentally ill if he runs a business and provides services to the satisfaction of a demanding client base. There is no evidence that would support the latter conclusion, the proposition is not sound and in respect of his mental health there is probative evidence to the contrary.
Features consistent with Dr R’s assessment were apparent from the father’s cross-examination of Dr R. He asserted but could not establish that Dr R had treated him differently from the other parties by stopping him completing a written questionnaire prior to the interview. He asserted that Dr R had spent less time interviewing him than the other parties. Dr R responded to the contrary effect, that it was likely that his interview was longer than those for either of the other parties. The contents of a facsimile communication sent by the father to Dr R on 19 July 2013 are discussed in Dr R’s report. By that discussion, that was a remarkable document and also seemed to demonstrate features not inconsistent with Dr R’s conclusions.
The parents’ tendencies were on display during the hearing. At times, rather than the impact on the children, the father could only refer to the impact of various outcomes on him. For example the father volunteered: ‘paedophiles and murderers get more time (with their children)’. Dr R did not accept that proposition. The effect of her response to that statement was “not in any report that I wrote in those circumstances.” In any event, the father appeared to focus on his treatment rather than on the children.
The father also displayed dramatic changes in his attitude to certain proposals.
Dr R did not resile from or otherwise change her opinion about the father’s mental health. Dr R qualified herself to express those opinions, she supported them with reference to information in evidence before me and I accept those opinions.
Unfairly in my view, the father challenged Dr R about her reference to the fact that she saw no evidence of the father’s relationship (among others) with his eldest daughter. The father did not suggest that Dr R had access to evidence about that relationship, let alone that any such evidence exists.
I could only speculate about Dr R’s conclusions had she been able to hear the father’s off-hand reference during the course of final submissions to having a fiancée in Europe, who is pregnant to him and who might come to Australia. A person who was not identified in the father’s evidence.
The concluding paragraphs of the father’s affidavit reveal some of the issues. The father deposed:
I have received a letter from Dr [R] asking for more money for her report. I will not be forwarding anymore money to her. Dr [R] questioned extensively about my political views and showed little interest in my side of the story. I’m very pleased Dr [R] did this because it has confirmed to me their is a political element to this. I have therefore decided to take matters no further than the trial and will commence a media campaign through paid airtime should I not be given access to my children. The magistrates who have presided over my case have been uniformly well balanced and polite people. I have no issues with them. It seems they are bound by “reports” submitted by external people - such as [Dr R]. I don’t know how I could have been more polite to Miss [R] (sic), yet she has had my children removed from me for nearly 18 mths.
I am not trying to force the Magistrates hand on this matter. But I have humbly petitioned the Family Court for supervised access for a long time now and been denied, even murderers get supervised access. There are no grounds in my opinion for this refusal of supervised access.
I am no longer seeking supervised access. I want shared access. I want the [Ansteads] ordered back to Sydney, they left during proceedings, this is unheard of. I have never given my consent for them to leave Sydney with my children.
As to the father’s capacity to provide for the physical support of the children, I note the email apparently sent by the father to the mother through solicitors on 24 April 2013[8] asking the mother to sign a non-disclosure agreement in order that the father could tell her about him having a potential one third share in a forty million dollar development and his willingness to share that with her in some way. I can recall no reference to that windfall in the father’s case.
[8] Annexure V to the mother’s affidavit
Earlier this year the father moved to a two bedroom unit in Suburb MK but he said he has plans to buy a three bedroom property being either a house in the Suburb V area or a unit in the Northern Beaches area. His mother has given him some money and he has approval or conditional approval from a bank to borrow what he needs. Later in his evidence the father said something to the effect that he did not think he would be able to afford a new home. I understood that he feared that news of the gift from his mother might attract action in relation to his child support obligation.
Dr R took the following history from the mother. The mother was the youngest of three children. She described her father as an abusive alcoholic. The mother’s childhood was wonderful until she was ten years of age. The mother was sexually abused at 12 years of age by a boyfriend of her mother. Her mother did not believe she was abused and the mother had to live with her father for a period. She said that she never dealt with her childhood abuse, did not complete university studies and when she entered the workforce she worked all week and drank on the weekend. The mother first sought help with her mental health when at 30 years of age she saw a GP about her alcohol use. The GP diagnosed depression and prescribed an antidepressant, Aropax, to which the mother had a manic reaction. The mother then ended her marriage to her son Y’s father and increased her alcohol use. She met the father when she was 34 years of age and he helped her through Alcoholic Anonymous, which she found very helpful. The mother felt extremely depressed at the end of her pregnancy with the child X. She sought treatment from a community psychiatrist and counsellor, neither of whom were helpful. A GP again prescribed an antidepressant, which again caused a manic response. The father was allegedly more and more violent to her and the mother became obsessed with writing a software program. Following an assault by the father in 2006 the mother separated from the father and had a “nervous breakdown”. The mother was again prescribed an antidepressant, which again caused a manic response and she was admitted to a Central Coast Hospital. The children were placed in temporary care and according to the mother, the father disappeared. The mother told Dr R that she took the children to her family in Queensland and stayed there for two months. The mother started to feel better after being taken off medication by a Dr U. In November 2008 she commenced therapy with psychiatrist Dr O who she saw fortnightly for three years. Under Dr O she was prescribed Valium which she took for 18 months and a mood stabiliser which she never took. The mother took her childhood abuser to Court.
Dr R observed that the mother presented as being very anxious but became less so during the interview. She appeared to be a vulnerable 44 year old, who was articulate and preoccupied with the father. “Her affect was reactive, with upset and anger apparent at appropriate times in her somewhat disjointed narrative.” The mother told Dr R that 18 months before the interview she had been on her “last legs”. She was exhausted with the child X not sleeping, running off, being destructive and in pain. The mother told Dr R that at that time she did not think she could keep him.
It is the case of the mother and stepfather and it is also the opinion of Dr R that if the mother is required to deal with the father at any significant level or to facilitate the father having any time with the children, that will have an adverse impact on her mental health, which in turn will impair her capacity to parent the children.
Dr R identified two matters that argued against the father having time with the children. The impact of that time on the mother’s mental health and the risks associated with inappropriate behaviour by him in the presence of the children. Dr R was strongly challenged in relation to this opinion.
The mother confidently predicted the destabilising effect certain things would have on her state of mind. They included seemingly unremarkable things such as the way in which certain events were described in the chronology settled in these proceedings by the ICL; the presence of the father’s surname in the children’s names; and the wording of certain proposed injunctions.
The father made the valid point that if he is excluded from the children’s lives then it may be difficult or impossible for him to be reintroduced at a later time and that such a reintroduction might be necessary if something happened to the mother. In effect Dr R agreed with that proposition but said that it was likely that if the father is not excluded then the mother would not be able to cope. The father asked Dr R to predict what might happen if the mother and stepfather’s marriage broke down and she agreed that it could lead to the mother becoming depressed and being unable to cope. In that event, if the children could not live with the stepfather, that could mean they would go to a foster home.
This issue is central to the parenting dispute and was sensibly the focus of much of the evidence.
It is the mother’s evidence and her case that after a number of years of trying and failing to cope with the father’s conduct and personality, she cannot promote time or communication between the father and the children. She told Dr R: “I can’t co-exist with him in the environment he creates: like a cyclone of destruction” and “he has something either mad or bad” and (he) “creates large amounts of destruction without treatment”. Dr R accepted that the mother’s opinion about this issue is honestly held and accurate. The objective facts support the mother’s case about this.
The mother, very movingly gave evidence about reaching a point of despair at about the end of 2011 and the start of 2012. The daily pattern left her with three hours sleep a night, with the child X not going to sleep until 3 am and the child M waking up soon thereafter. Her pleas to the welfare authorities failed to elicit respite or other assistance and at her wits end, she acted on unofficial advice from one of the agencies and delivered X to RX Hospital. The mother says she was then provided with respite and she slept for three weeks. The mother reflected on the recent improvement in the child M, including an improvement in her reading. To my observation she was upset and remorseful as she speculated that she may have unconsciously withdrawn from the children at that terrible time, in anticipation of the pain of surrendering them to the authorities. She said that the improvement in M might simply reflect her recent good health and her resultant ability to engage with the children again. It cannot have been easy to give that evidence, let alone to come to such a realisation. In my view the mother courageously tried to meet her parenting responsibilities under the most arduous circumstances. To this day the parenting task places great demands on the mother and stepfather. It was sobering to be told that the precious respite resource provided to this family was used to allow the mother and her husband to attend Court for a five day hearing.
I am convinced that both of the parents love the children and want the best for them. Provided it is safe to do so, it would normally be in the best interests of the children for them to have time with each parent. The parties agree that the mother and stepfather should both have parental responsibility and that the children should live with them. For objectively good reasons the mother says that she cannot manage the children if she and the stepfather have to interact with the father. Dr R agrees. Dr R’s reported recommendation was that the father see the children three times each year, on his and their birthdays. Although at the very conclusion of final submissions the father said that he would take up that proposal, for most of the trial he said that he would not avail himself of that time. The mother too said that she could not countenance such an arrangement.
Aside from the understandable sense of loss that will be experienced by the father and by the children, the father has flagged one practical aspect of him having no time with the children. In the event that for some reason, the mother and or the stepfather are not able to care for the children, he might be called to do so. If he is excluded at this time from the lives of the children then it could be stressful and difficult to restore his relationship with the children at some time in the future. That is of concern although in that event the alternative would presumably be that the children would live with strangers. It could also be stressful or difficult to build a satisfactory relationship between the children and such future carers.
In large part because of the reasonably based, implacable view of the mother and the strong but inconsistent views of the father I am satisfied that if the father has any time with the children, that is likely to destabilise the mother and prevent her from adequately caring for the children. I will order that the father spend no time with either of the children.
The Children’s Names
I am inclined to the proposal of the mother and stepfather that the children share their surname “Anstead”. I accept that life will be simpler and less confusing if the children are known by the same name as their mother and stepfather. Such a change would mean that as they grow up, they would not need to deal with questions or any confusion caused by their surnames being “Modlin”.
I understood the evidence of the mother and stepfather to be that, through a clerical bungle, they have been able to have M recorded at school as Anstead or the mother’s similar maiden name already.
During the oral submissions the father did not develop his arguments against the mother and stepfather’s proposal but there is a valid argument against this proposal to do with identity and the need to facilitate a restoration of a relationship between the children and their father, when it is safe to do so, even if that is when they are adults.
The submission of the mother and stepfather is that there is already a prompt for their paternity in the form of the existing middle names of the children. The child X has his father’s first name as his middle name. Along with the name of the maternal grandmother, the child M has her paternal grandmother’s name as a middle name.
The ICL proposes that the children each have “Modlin” as an additional middle name. That, it is submitted, would preserve the link with the father’s identity. The mother and stepfather oppose such an order. In my view this is a sensible proposal in the context of this case. Sadly, the children are not progressing with their cohort of like aged children. For them perhaps more than other children, it could be of assistance to have a formal reference to their paternity in their names. There can be no objection to the change proposed by the ICL just because it would be a change. The mother and stepfather seek a more significant change. If, as is argued by the mother and stepfather, the existing middle names provide a reference to the father’s family then there is no obvious basis for objecting to the addition of “Modlin” as another middle name. In my view that will provide a prompt for the children in the event that and at the time when, either child wants to know more about his or her background.
I will allow the children’s surnames to be changed to Anstead and will require that in each case “Modlin” be added as the last of their middle names.
Injunctions
The mother and stepfather seek the following injunctions:
3.That the father is hereby restrained from approaching the children, any school which the children attend from time to time and the children’s residence, either in person or in writing or by electronic communication
4.That the father is hereby restrained from approaching [the mother’s son Y] or any place that [Y] may reside or be employed from time to time and is hereby restrained from communicating with [Y] by any means whatsoever including in writing or by electronic communication
5.That the father is hereby restrained from approaching the mother or any place the mother may reside or be employed from time to time and is hereby restrained from communicating with the mother by any means whatsoever including in writing or by electronic communication
10.That the father is hereby restrained from approaching the stepfather or place the stepfather may reside or be employed from time to time and is hereby restrained from communicating with the stepfather by any means whatsoever including in writing or by electronic communication
The ICL seeks a similar Order to 3 above:
3.That the father be restrained from approaching any school which the children attend from time to time and the children’s residence.
The ICL also seeks certain injunctions against the mother and stepfather:
7.That the mother and stepfather be restrained by injunction from denigrating the father or members of the father’s family to the children or in the presence of the children or at all.
13.That the mother and stepfather use their best endeavours to ensure that no other person denigrates the father or members of the father’s family to the children or in the presence of the children.
14.That the mother and stepfather be restrained by injunction from discussing these proceedings with or in the presence of the children or showing to the children any document connected with these proceedings.
The father seeks that the mother and stepfather be restrained from moving the children from NSW.
Section 68B of the Act provides as follows:
FAMILY LAW ACT 1975 - SECT 68B
Injunctions
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
FAMILY LAW ACT 1975 - SECT 68C
Powers of arrest
(1) If:
(a) an injunction is in force under section 68B for the personal protection of a person (the protected person ); and
(b) a police officer believes, on reasonable grounds, that the person (the respondent ) against whom the injunction is directed has breached the injunction by:
(i) causing, or threatening to cause, bodily harm to the protected person; or
(ii) harassing, molesting or stalking that person;
the police officer may arrest the respondent without warrant.
Note: Section 122AA authorises the use of reasonable force in making an arrest.
(2) For the purposes of subsection (1), an injunction granted under section 68B is an injunction for the personal protection of a person if, and only if, it is expressed to be for the personal protection of the person.
(3) Subsections 114AA(3), (4), (5) and (7) apply in relation to a person arrested under this section as if:
(a) the person had been arrested under subsection 114AA(1) because he or she was believed to have breached an injunction granted under section 114; and
(b) the person on whose application the injunction was granted under section 68B were the person on whose application the injunction under section 114 had been granted.
Thus the effect of s 68C is that if a court grants an injunction expressed to be for the personal protection of a person, and if a police officer believes on reasonable grounds that the injunction has been breached by the person against whom it was directed by causing or threatening to cause bodily harm, a police officer may arrest that person without warrant.
It is likely that the mother and stepfather seek the injunctions for personal protection as a solution to what they see as the failure of State law to protect them from the father. I am not in a position to comment on the complaints made by the mother about the NSW Police and have no basis for assuming that they would do other than their duty in relation to any incident within their jurisdiction. Indeed the very same authorities represent the only immediately available method of enforcing an injunction of the type sought by the mother and stepfather.
I am satisfied that the injunctions sought by the mother and stepfather are for the personal protection of the mother. The term “personal protection” is not defined in the Act and there is little authority on the meaning of the term. In Kemsley and Kemsley (1984) FLC 91-567; 10 Fam LR 125 the Full Court (Emery & Wood SJJ and Strauss J) said:
In the circumstances of this particular case, it was appropriate to make orders for the personal protection of the wife. The words ‘‘personal protection’’ do not only refer to her physical protection, but they are apt to include such matters as the protection of her right to lead her own life without undue interference from the husband. In Vaughan v. Vaughan (1973) 3 All E.R. 449 Karminski J. pointed out that the Oxford Dictionary meaning of the word ‘‘molestation’’ includes ‘‘causing trouble to’’, ‘‘vexing’’, ‘‘putting to inconvenience’’. An order might be for the personal protection of the wife if it prevented the husband from interfering with her employment or business or her social life or if it were designed to safeguard her mental or emotional well being. The qualification that it must be an order or injunction with respect to the circumstances arising out of the marital relationship was satisfied in the present case having regard to the relevant facts. The husband’s conduct towards the wife and his attitude towards her association with R all arose out of the marital relationship of the husband and wife.
That decision was made in the context of s 114 and long before the introduction of ss 68B and 68C to Part VII of the Act. There is reason to grant an injunction for the physical protection of the mother. The father has assaulted the mother and there has been a breach of a state domestic violence order. In addition, in the circumstances before me, a significant aspect of the mother’s argument for an injunction is that it would safeguard her mental or emotional wellbeing and thereby advance the interests of the children.
There is an acknowledgment in s 114AB of the Family Law Act of the possible problems of State and Federal Laws (ss 68B, 68C, 114 & 114AA) addressing substantially the same subject matter. In that provision the two sets of laws are acknowledged and a party is prohibited from taking action under the Family Law Act provisions if they or the authorities have taken a step or instituted proceedings in relation to the same facts under the applicable state domestic violence law. There is no doubt, however, that the Court has power to grant the orders sought.
In the event of an apparent breach of an order for personal protection, the police have a power of arrest without warrant. Here, the father is not to know where the children live or go to school etc. He is not to know where the mother or stepfather might work. He is certainly not to know where the mother, the stepfather or the children might be at any particular time. During his submissions the father expressed concern, in the event that injunctions were granted, about the possibility of him accidentally coming across the children or the mother and stepfather. The concern is that it could be dangerous to leave such a power with the police, where he could accidently contravene the order. Each of the parents complains about the NSW Police. As a general proposition the mother complains about inaction and the father about over zealous conduct. I repeat, I am not in a position to comment on the complaints made about the NSW Police and have no basis for assuming that they would do other than their duty in relation to any incident within their jurisdiction. Indeed, one could readily imagine that conduct such as that which is deposed to in these proceedings, could present the police with very difficult problems.
The section requires that an injunction be appropriate. As to the order sought in protection of the mother’s son Y, he is not a subject child and in my view the order is not necessary. Of course were he to again live with the mother and stepfather, he would be protected by the order restraining the father from approaching their residence.
Here the father’s conduct in relation to the mother has been objectively concerning and at times, illegal. In the unique circumstances of this case, it is especially important that the mother feels safe and is not destabilised. In my view the injunctions are appropriate. It seems to me that the Court should be confident that the police will be able to identify circumstances where there is an accidental contact between the father and the people and premises he is restrained from approaching or contacting.
The injunctions sought by the mother and stepfather would cut off indefinitely, any possible communication between the father and the mother and stepfather. That would mean that the father could not communicate about changes in his life and as drafted they would prevent any future proceedings, by prohibiting service of process. In my view, that would not be proper. The parenting orders I will make are among the most serious orders available in this jurisdiction and the father should not be excluded from any hope in relation to having a relationship with his children. There may be something he learns because of a message sent to his mother by the mother and stepfather which requires attention or even a response. In any event, when the children are adults there should be an available method of communication. As I have identified, the legitimate aim of an injunction restraining communication by the father is to prevent the mother being destabilised. It would facilitate necessary communication and would not threaten the intent of the orders if the father had a contact postal address for the stepfather. The stepfather is not as badly affected by the father as the mother. He is capable of throwing mischievous or vexatious communications in the bin and would know not to tell the mother about such communications. Subject to the constraints on repeated parenting proceedings[13] it should also be possible for the father to serve the mother and stepfather will legal process, when and if that is appropriate.
[13] See Rice v Asplund (1979) FLC 90-725
As to the injunctions sought by the ICL, no submissions were made against the making of those orders. The orders I have flagged, will leave all responsibility for the children with the mother and stepfather. They will leave the father with virtually no access to information which would allow him to monitor the welfare of the children. The matters addressed by the proposed orders are unremarkable and there was no suggestion that such orders would not promote the welfare of the children. I will make the orders proposed by the ICL.
As to the injunction sought by the father, no submissions were made in support of the order and in the circumstances I see no reason to grant the application. I will however make the order sought by the ICL whereby the father will be given notice of a relocation beyond the Central Coast.
Costs
The ICL seeks orders for costs and as I understand it, the orders are not opposed in principle. The stepfather initially made submissions which I thought opposed some aspect of the costs orders sought by the ICL. In my view the orders sought by the ICL are appropriate. There was no specific complaint in respect of Dr R’s fees and indeed, for the reasons that are set out below, the mother and stepfather have no additional responsibility for those fees. As to the ICL’s fees, with three litigants in person, the ICL and counsel for the ICL have had a substantially more onerous task in what were in any event, very complicated proceedings. Counsel for the ICL was called on to take the lead in cross-examination and submissions as well as settling a trial plan and undertaking the work associated with several occasions when I was asked to stand the matter down for settlement discussions. Special sitting times had to be accommodated to best meet the need for the mother and stepfather to return to the Central Coast to resume care of the children. The background circumstances are themselves complicated and without suggesting that the parents were deliberately difficult, they were very emotional at times and I have no doubt that would have been challenging for the ICL and the ICL’s counsel. Each of the parents has some paid employment. Albeit that the orders made are closer to those sought by the mother and stepfather than the applicant, the ICL and the ICL’s counsel were nevertheless required to engage with very significant issues in dispute. The parties should share in the ICL’s costs as sought.
There is a small complication in relation to the expert’s fees. At some point both the father and the mother and stepfather were called upon to pay a further $850 to Dr R (a total of $1,700). That fee was in addition to an earlier payment and related to the preparation of the expert’s report. The father said during final submissions and I take it that it would be his evidence, that some time ago he sent a money order for $850 to Dr R’s rooms. The ICL was told by Dr R’s staff that the payment was never received. In order to facilitate the release of the report the mother and stepfather paid their $850 and an additional $850 to cover the father’s share. The father told me that he would deal with the Post Office, straighten the matter out and ensure that the $850 is paid. However he expressed a concern that it might take a while to resolve the issue.
The net effect, so far as Dr R is concerned, is that she has received the additional $1,700 for her report and is now owed only the fee of $1,595 for her telephone attendance on 27 September 2013. The ICL had proposed that the parties each pay $797.50. The trouble with that is that the mother and stepfather have already paid an additional $850 and rather than owing money to Dr R should receive a refund of $52.50. I will make an order that requires the father to pay $797.50 to Dr R and to ensure that the $850 he attempted to send to Dr R is paid to NSW Legal Aid. Legal Aid can disburse $797.50 of that sum to Dr R and refund $52.50 to the mother and stepfather.
Given the time of year I will allow two months for the payments to be made.
Conclusion
The main provisions of the orders will give equal shared parental responsibility to the mother and stepfather and will provide for the children to live with them and spend no time with their father.
The orders are complicated and leave will be granted to the parties to bring the matter back before me within 28 days, or such further time on which they may agree, in relation to the wording of the orders.
I certify that the preceding two hundred and thirty eight (238) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 6 December 2013.
Associate:
Date: 6 December 2013
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