Munson and Munson

[2019] FCCA 670

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUNSON & MUNSON [2019] FCCA 670

Catchwords:
FAMILY LAW – Parenting – interim orders – five children aged between 17 and 4 years old – what time the father should spend with the children – whether the father’s time should be supervised – where the mother alleges serious risks in relation to the father’s parenting – where the mother alleges family violence – where the father suffers from post-traumatic stress disorder, alcohol use disorder and Bipolar disorder – where there is an AVO in place protecting the mother from the father – where the father has been charged with breaching AVO – best interests of children.

Legislation:

Family Law Act 1975 (Cth), pt.VII

Cases cited:

Goode & Goode (2006) FLC 93-286

Applicant: MR MUNSON

Respondent: MS MUNSON

File Number: NCC 3893 of 2018

Judgment of: Judge Betts

Hearing date: 12 February 2019

Date of Last Submission: 12 February 2019

Delivered at: Newcastle

Delivered on: 20 February 2019

REPRESENTATION

Counsel for the Applicant: Mr Weightman

Solicitors for the Applicant: Mullane & Lindsay

Solicitors for the Respondent: Harpers Legal

ORDERS

1. The children, [V] (… 2002), [W] (… 2003), [X] (… 2005), [Y] (… 2007) and [Z] (… 2015) (“the children”) live with the Mother.

2. The Mother is to have sole parental responsibility for the children.

3. That the children, [X], [Y] and [Z] spend supervised time with the Father through the supervision service ReKonnect and the following shall apply:

   a.Such time will occur as arranged through the supervision service but no more than once a week.

   b.Both parties shall contact ReKonnect within 7 days and attend any intake assessment as required by the service.

   c.That the Father shall be responsible for all costs associated with the engagement of ReKonnect.

   d.That the Mother shall cause the children to be delivered and collected from the location nominated by ReKonnect, at times nominated by ReKonnect, and the Father shall not attend the nominated location prior to the commencement of such time, nor remain after the end of such time.

   e.That the parties comply with all reasonable directions and requests made by the supervisor.

4. The Mother is to encourage [V] and [W] to attend the Father’s supervised visits.

5. The Mother is to facilitate the children contacting the Father by telephone, or by text or email should the children express a wish to do so.

6. Pursuant to Section 68B of the Family Law Act each parent be restrained from:

   a.denigrating the other parent, or members of the other parent’s household, to or in the presence of the children or permitting any other person to do so.

   b.discussing the Court proceedings with the children or showing the children any of the Court documents.

7. That each parent provide to the other their respective current residential address, home telephone number, mobile telephone number and email address and provide not less than 24 hours’ notice to the other party of any change of address, or telephone number or email address.

8. That each parent is authorised to receive:

   a.Any information regarding the education of the children or any of them including any notice of or invitation to any school, cultural or sporting activity, copies of all correspondence and school reports, school photograph applicant forms and permission forms;

   b.All reports and information regarding the health of the children or any of them and any medical, dental or other health related treatment being undertaken by the children or any of them, including diagnosis provided, and the identity and contact details of any medical practitioner treating the children or any of them and a copy of these Orders is sufficient evidence of such authority.

9. The children, [V] (… 2002), [W] (… 2003), [X] (… 2005), [Y] (… 2007) and [Z] (… 2015) are to be represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.

10. Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.

11. Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.

12. Upon release of the Child Inclusive Memorandum the Independent Children’s Lawyer is directed to:

    a.confer with the parents concerning the ongoing appropriateness of the Father’s supervised time and whether some alternate arrangement is more appropriate; and 

    b.to hold a Litigation Intervention Conference.

13. Leave is granted to all parties (including the Independent Children’s Lawyer) to issue more than five (5) subpoenas.

NOTATIONS:

(A)The Child Inclusive Conference is to occur on 9 May 2019.

(B)The matter remains listed for interim hearing on 28 August 2019 at 2.15pm.

IT IS NOTED that publication of this judgment under the pseudonym Munson & Munson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3893 of 2018

MR MUNSON

Applicant

And

MS MUNSON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript so as to make them more readable.

Background:

1. This is an application for interim parenting orders in relation to five (5) children. 

2. From oldest to youngest, the children are: 

   (a)[V] born … 2002, who is shortly turning 17; 

   (b)[W] born … 2003, who is fifteen (15) years old; 

   (c)[X] born … 2005, who is thirteen (13) years old; 

   (d)[Y] born … 2007, who is eleven (11) years old;  and

   (e)[Z] born … 2014, who is four (4) years. 

3. The applicant in the proceedings is the father of the children, Mr Munson.  The respondent to the proceedings is the mother of the children, Ms Munson. 

4. On 14 December 2018, the father filed an Initiating Application seeking interim parenting orders including that the child, [X], continue to live with him (as was the case at that time), and that he spend substantial and significant time with the other children. 

5. The mother filed a Response on 11 February 2019.  She sought interim orders that the father spend only supervised time with the children through a professional supervision service known as Rekonnect.  She also sought specific orders in relation to the father undertaking a comprehensive mental health assessment and sought an order that he enrol in a “Facing Up” course, being a course designed for perpetrators of family violence.  The mother sought other orders as well, including the appointment of an Independent Children’s Lawyer (“ICL”). 

6. The proceedings came before me on 12 February 2019 in a busy duty list. 

7. Having regard to the court’s inability to hear and determine the matter that day, but also noting particularly the ages of the children and the strong suggestion that they had been exposed to family violence (or at the very least significant conflict between their parents), the court made orders for a Child Inclusive Conference to take place.  This is to occur on 9 May 2019. 

8. The proceedings were otherwise adjourned to 28 August 2019 for substantive interim hearing. 

9. I would add here that it is regrettable that the court’s calendar is as heavily listed as it presently is.  I do not consider 28 August 2019 to be an entirely appropriate date for the further hearing of this interim application.  The regrettable reality is that these children require more attention than this court can give them at this time given the sheer state of the listings at this time, a matter which should by now be a matter of public record.  The fact is that, on the latest numbers I have, my docket consists of 563 cases, each of which has its own significance, each of which has its own urgency.   

10. On 28 August 2019, regrettable though the delay is, the court will be in a better position to make a more informed order as it will have the benefit of hearing what the children’s experiences have been, as well as the benefit of any recommendations from the Family Consultant. 

11. Against that backdrop, the father’s counsel Mr Weightman submitted that I at least needed to consider what orders should be made in the interim pending that hearing on 28 August. 

12. Effectively, I am asked to conduct two (2) interim hearings in this matter, and I accept that it is unavoidable that I have had to do so, although I make clear that I regard the order that I intend to make today as being in the nature of “triage”.  I have every intention of revisiting it on 28 August, at which time the parties will have a much fuller opportunity to be heard. 

13. Mr Weightman urged upon me that, given the delay before the matter can get back on, I should be making orders for the father to have time with the children in the interim that involves, if you like, a “leap forward” from what they have been used to - most particularly in relation to the youngest child, [Z], who has not spent an overnight away from her mother. 

14. Ms Bremner, solicitor, who appeared for the mother, made the submission that the father’s time needs to be supervised pending the hearing on 28 August. 

15. It is against this backdrop that I am asked to make what is effectively a “triage” order. 

Brief history:

1. The parties were initially in a relationship between 2001 and 2014.  Their relationship then broke down.  They later resumed their relationship around March 2017 before it finally ended in October 2018. 

2. The children are all the product of this very difficult and indeed dysfunctional relationship between these parents. 

3. Following separation, the situation escalated between the parents.  The mother’s evidence is that the father left the home but that he kept on coming back whenever he wanted to so that, ultimately, she ended up leaving the home. 

4. The father accuses the mother of leaving the home but then subsequently coming back over as though she was still an occupant.   He complains that she was the one intimidating him by her actions. 

5. Whoever’s version of events is correct, it is clear that the breakdown of this relationship was traumatic for all concerned, most particularly for the children who are caught in the middle of what I perceived to be a substantial and, at this stage, unremitting conflict between their parents. 

6. The mother obtained a provisional Apprehended Violence Order (“AVO”) against the father; the children were also named therein.

7. On 14 November 2018 the father consented to a final AVO, without admissions.  The AVO provides that the father must not assault or threaten the mother, stalk, harass or intimidate her, or intentionally or recklessly destroy or damage any property that belongs to her or is in her possession.  The children are no longer named as protected persons.

Material relied upon by the parties:

1. I have had regard to the Initiating Application of the father, Notice of Risk and affidavit, all filed 14 December 2018. 

2. I have had regard to the mother’s Response, Notice of Risk and affidavit filed 11 February 2019. 

3. The father also relied upon a brief affidavit in reply of 12 February 2019 and I have had regard to that affidavit as well. 

The law:

1. Before I turn to a consideration of the evidence, I would simply observe that as this is an interim hearing, it is not possible for this court to make findings about disputed facts.  I simply cannot know where ultimately the truth might be in this case.  What the court has to do is arrive at a best interests determination on the basis of what is inevitably highly conflicting evidence.  Throughout this process the court must regard the best interests of the children as paramount. 

2. The relevant primary considerations and additional considerations in arriving at a best interests determination are set out in section 60CC of the Family Law Act (“the Act”). These considerations must be looked at against the backdrop of the objects and principles of the Act set out in section 60B.

3. The court is well familiar with the relevant statutory pathway in relation to the issue of parental responsibility (s.61DA) and its interplay with s.65DAA as explained by the Full Court’s decision in Goode & Goode (2006) FLC 93-286.

4. The mother raises serious risk issues against the father in this case.  When risk issues are raised at an interim hearing, even though the court is unable to make a positive finding one way or the other, it cannot ignore the allegations.  The court must take the allegations into consideration and it must ensure that the orders it makes do not expose the children to unacceptable risk. 

Consideration of the section 60CC factors, including issues of risk:

1. The mother alleges serious risks in relation to the father’s parenting. 

2. It is common ground that the father is a former member of the Employer, having been stationed or deployed to various war zones around the world during the course of his career, including extremely dangerous war zones. 

3. He suffers from post-traumatic stress disorder and he admits as much.  He would not be the first serviceman or servicewoman that I have seen in this court who has returned from a war zone with post-traumatic stress disorder (“PTSD”).    

4. He admits that he also suffers from alcohol use disorder and from Bipolar Disorder Type II. 

5. In that sense, the father accepts that his mental health has been compromised and this can, of course, have an impact on parenting.  That said, he maintains and he points me to evidence which indicates that his mental health is stable. 

6. The mother accuses the father of behaving in a violent and abusive manner towards her throughout the relationship.  She accuses him of behaving in a coercive and controlling manner and she accuses him on some occasions of behaving in a physically forceful and violent way towards her. 

7. It would be fair to say that the father denies such allegations, although an incident did occur around the time of the Police applying for the AVO to protect the mother.  In that regard, the parties had clearly been arguing – a not uncommon occurrence for them, as I read their material – and the mother gives evidence that the father had possession of a stick and was deploying it in such a way while she was sitting on a chair that she felt intimidated and afraid that he might hit her with it.  The father accepts that the stick was being brought into contact with the chair while she was sitting in it but he says that it was “unconscious” on his part and he did not mean to intimidate the mother in any way. 

8. This is not a matter that I can make a determination about except to note that the father did apparently have possession of a stick, the mother allegedly felt intimidated and the Police certainly decided to bring an application for an AVO following this event – an order to which the father ultimately consented without admissions. 

9. The mother separately complains that the father’s mental health has been of such a compromised nature that at different times he has attempted suicide and, moreover, that he has discussed his suicide attempts with the children. 

10. The father accepts that he has previously been suicidal and it is common ground that he has been hospitalised by reason of his past state of mental health. 

11. The mother points to a particular event in relation to [V] which occurred in September of 2017.  The mother’s evidence is that in September of 2017, while they were still an intact family, there was an incident one night when the father choked [V]. 

12. Her evidence is that [V] was outside the home and that she knocked on the front door.  When the father answered, she said “Boo!” and the mother gives evidence that the father stood still for a second and then pushed opened the screen door and launched at [V], grabbing her by the throat, lifting her up off the ground and slamming her into the car. 

13. The mother’s evidence is that [V] was screaming at him to stop and that the mother was screaming at the father and trying to pull him away from [V].  She says that the father was choking [V] and telling her “Don’t ever fucking do that again!” and that [V] was terrified.  The mother’s evidence is that after a few moments, the father dropped [V] on the ground and ran inside, by which time [V] was, perhaps unsurprisingly, beside herself. 

14. The father gives a different version of events, although how relevantly different it is might be open to question insofar as the child’s experience is concerned. 

15. The father’s evidence is that he did not know that it was [V] at the door and that when “somebody” jumped out and yelled “Boo!” he then grabbed the person and pushed them up against the car nearby.  The person screamed and only then he realised it was [V].  He says he immediately let her go. 

16. The father says that on this occasion he experienced the same feelings and reactions as when he as a serviceman was under attack in the Country A and Country B.  His affidavit makes reference to experiencing atrocities there. 

17. It is common ground that the father ended up being hospitalised for a period after this event for mental health reasons.  The father concedes that he was hospitalised and his evidence is that his psychiatrist told him that he reacted in this manner because he felt under attack at the time.  The father’s evidence is that at this time he did not have the skills or tools to properly regulate his emotions.  He says that it was at this time that he was diagnosed with PTSD. 

18. The mother’s evidence is that the PTSD diagnosis was made at a different time, but this difference perhaps does not matter. 

19. The father’s own evidence is that he was - and continues to be - abhorred by his reaction to [V] that night, and that he has worked very hard to make sure nothing like that happens again.  He has clearly undertaken significant mental health treatment. 

20. The father’s Notice of Risk concedes that there were some unpleasant arguments between the parties at times but he denies being a perpetrator of family violence. 

21. Following the breakdown of the relationship, as I have indicated, the mother eventually moved out of the home and she is now in a rental property.  The father has been remaining in the former matrimonial home at Town C.  Because he has been discharged from the Employer, he is fully available to care for the children. 

22. There is no issue that arises in relation to the suitability of his home.  There is no issue that arises in relation to the father’s physical availability to the children. 

23. The children have spent some time with the father since separation.

24. From oldest to youngest, starting with [V], the father was originally seeing her on a Monday and Wednesday afternoons at a sporting event.  He spent time with her on 16 December and again overnight on 23 December. 

25. What is noteworthy to me is that [V] has chosen to only spend one (1) overnight with the father since the mother moved out of the home. 

26. It is not possible for me to know at this stage whether [V] has taken this stance as a result of:

    ·the father choking her in the manner that he did; and/or

    ·whether it is the cumulative effect of her having witnessed violence between her parents - which is the mother’s case; and/or

    ·whether [V] is perhaps being alienated by the mother, which is the father’s case.

27. But on any view it is clear that, at least at this time, [V] is choosing not to spend much time with the father.  At age seventeen (17), her views must be given significant weight.

28. In [W]’s case, the father was initially seeing her on Monday and Wednesday afternoons at the same time as he was seeing [V].  As with [V], he also spent time with [W] on 16 December and overnight on 23 December.  Additionally he had [W] with him from 2 January to 6 January this year and from 9 February to 10 February. 

29. In relation to the middle child, [X], she had in fact chosen to live with the father after the mother moved out. 

1. The reason for this may be because she genuinely wanted to live with the father.  It may be because she was not wanting to upset him.  Or it may be for reasons the court cannot really discern at this point.

2. [X] was living with the father at the time he filed proceedings on 14 December 2018.  This explains why the interim orders he seeks provide for her continuing to live with him. 

3. [X] did not, however, remain living with the father.  Since the events of 15 January 2019 (discussed later), she has returned to the mother’s care where she remains. 

4. In relation to the child, [Y], the father spent time with her from 7 December until 10 December 2018, from 21 to 24 December 2019, from 2 January to 6 January 2019, and then for the last time on 15 January 2019. 

5. The youngest child, [Z], spent time with the father on 24 December and also on her birthday on ….  She has, on any view, spent very limited time with the father.  She is still very young. 

6. In his submissions, Mr Weightman points to the obvious fact that post-separation, despite whatever deficits and difficulties the father may or may not have had, the mother had nonetheless agreed for him to spend unsupervised time with these children right up until the event of 15 January 2019.  It is on this basis, at least in part, that Mr Weightman urges upon me that I should put in place orders whereby the father continues to spend at least significant daytime periods (and some overnight time) with the children until I can conduct a fuller interim hearing on 28 August.

7. I turn now to the events of 15 January 2019 – when the post-separation co-parenting arrangements completely broke down.

8. On that day, the father had [X] living with him and [Y] was visiting. 

9. The mother’s evidence as to this event is that [Y] had wanted to go and visit her father for the weekend.  She had dropped [Y] off to him at Suburb D - but [Y] later messaged the mother throughout this day on Instagram, telling her she wanted to come home. 

10. The mother met the father for changeover at Suburb D at 6.30 pm. 

11. The mother’s case is that [Y] got out of his car sobbing;  that before she could find out what was wrong, the father had approached her car and that he was calling her names and saying things such as “you’re a poor excuse for a human being”, “you’re disgusting”, “you’ve poisoned [Y] against me”. 

12. The mother’s evidence is that she was intimidated and scared by the father’s actions.  She also says that he leaned over and whispered menacingly to her while she was sitting in the vehicle, “By the way, this is the last time you’re going to see [X].” 

13. The mother also gives evidence that [W] was present in her vehicle at the time.  The mother’s evidence is that [W] later told her that at that time she was afraid the father was going to hit the mother.

14. The father gives a different version of this event.  He accepts that there was an unpleasant altercation at the handover.  What he says is that, “Ms Munson and I had a verbal argument at changeover.”  That is the full extent of his evidence as to this event, but he does accept that the mother later complained to Police and that they subsequently charged him with breaching the AVO. 

15. Regrettably, [X] was in the father’s care at the time that the Police attended his home later that evening, which is a most unfortunate matter to which she was exposed.  She was returned to the mother’s care.

16. The father voluntarily participated in a Police record of interview. 

17. I have before me the “fact sheet” alleged by the Police in relation to the breach AVO charge.  It relevantly states that the father agreed with the version of events put forward by the mother but denies her allegation that he called her a “piece of gutter” while she was sitting in her vehicle.  His evidence is that he said this to her when she was out of the vehicle.  The distinction may be relevant because it potentially goes to the question of whether, at the time of saying this to the mother, he was “intimidating” her in breach of the AVO.

18. The father admitted to Police that he had allowed his emotions to overpower his intelligence during the interaction, saying that he had originally made a decision not to engage the mother.  He told Police that it was a heated discussion both ways. 

19. So essentially I have the father admitting that he denigrated the mother in a manner that he says was not intimidating but which she alleges was. 

20. But, on any view, the child, [Y], was upset and wanting to return to the mother.  The father clearly was upset as well, his own words being that he allowed his emotions to overpower his intelligence.  And I have three (3) children who were directly impacted by the confrontation and subsequent Police involvement, namely [W], [X] and [Y]. 

21. Whatever occurred on that day, to my mind, was serious.  It has resulted in the father being charged with breaching the AVO.  The father is defending that charge. 

22. This event is a serious concern for me.  It needs to be looked at against the backdrop that the father has produced medical evidence to the court, particularly a report from Dr E, psychiatrist, of 29 November 2018.  That report, although based to some extent on matters that the father's sister apparently told Dr E, nonetheless asserted that as at that date, the father appeared calm and denied any impairment from depression or anxiety symptoms.  He had reduced his alcohol consumption.[1]

    [1] The father has also provided the court with the results of a test for alcohol abuse - which is normal

23. The father did not, according to Dr E as at 29 November 2018, have any symptoms of mania or psychosis, had good insight and judgment.  It was noted that he was vulnerable to relapses given his PTSD, but he was well supported.  Dr E considered that the father was not a risk to himself or the children, and that having "access" to his children would be good for both himself and his children and, indeed, the letter sought unrestricted "access" on the father’s behalf.

24. What concerns me is that on 15 January 2019 the children were exposed to what appears to have been the father's inability, on this day, to control his emotions in the face of [Y] not wanting to be with him.  He seems to have blamed the mother for this event, and the reality is that whatever treatment and assistance he has had, these children were directly in the “crosshairs” of what was a most unpleasant situation. 

25. I must look at that event against the background evidence that the mother gives that the father did not always take his mental health medication during the relationship and, in fact, on occasions threw it away.  (She claims to have photographs of this, but I have no such evidence before me at this time.)

26. I have not traversed the mother’s evidence of family violence in detail in these reasons but I would record that the mother does accuse the father of speaking abusively and aggressively towards her, behaving in a coercive manner and, at times, frightening the children - indeed threatening to kill the children, albeit that on her case this seems to have been a comment made in anger as opposed to any genuine statement of intent. 

27. The major issue, as I see it, is the risk posed by the father at this time to the welfare of the children.  I say this because the mother runs a risk case against him.  The father concedes the existence of the AVO.  He clearly has some longstanding issues with his mental health, but I hasten to add that the allegations of family violence made against him are also very serious. 

28. My concern is - what impact have these children suffered as a result of the conflict that has occurred between the parents, and as a result of the, at times probably unmanaged, mental health condition of the father? 

29. I am greatly concerned in terms of not so much the physical welfare of the children, but their emotional welfare at this time.  I have children who, on the mother's case have been the victims of and exposed to family violence and dysregulated behaviour by the father over a significant period. 

30. I have an AVO before me and now, regrettably, I have an alleged breach of that AVO in circumstances where the children, as I have already said, were firmly in the crosshairs of what was going on. 

31. The argument that the father's time should be unsupervised would potentially be a much stronger argument if the events of 15 January had not occurred.  My concern is that the father does not, at this time, have the capacity to fully regulate, in the way that he has to, his own emotional responses towards the children and towards these stressful events. 

32. The father has provided a clear alcohol test which is a positive step.

33. But the events of 15 January occurred in the face of all the mental health treatment the father has had, the positive medical report he produced, and the existence of his extended family support.

34. I am concerned about what the impact will be on the children if I was to make orders which force them to spend unsupervised time with the father in the interim without knowing what their views might be. 

35. I can certainly deduce from [V]’s and [W]'s actions that they have spent very little time with the father. 

36. To the extent [Y] did spend time with him, it ended literally in tears and a dreadful altercation on 15 January. 

37. [X] is now back with the mother, rightly or wrongly from her perspective, and [Z] is far too young to understand anything about what is going on. 

38. I see a benefit to these children having a meaningful relationship with their father, but that benefit has to be weighed against the serious risks that the mother raises in her evidence and which I cannot ignore, particularly at this “triage” stage of the proceedings when the court is inevitably obliged to act protectively.[2] 

    [2] See for instance Salah & Salah [2016] FAMCAFC 100

39. I do not have evidence as to the views of the children, but if their actions in voting with their feet are any guide, the best evidence as to their views is that they are all living with their mother at this time.  I exclude [Z] from that because clearly she is too young to have any view. 

40. The children would seem to have a close relationship with both their parents, but there is a question mark about the nature of their relationship with the father at this time, whether there is some fear there and some other unresolved issues. 

41. This is not a matter that I can fully determine today. 

42. I accept that the father is taking every opportunity to spend time with these children, to his credit.  He brought these proceedings.  He wants a relationship with his children, and I fully understand that. 

43. Having regard to the disastrous events of 15 January and the way that they ended, against the backdrop of what experiences the children appear to have had during their lives - without making any specific findings beyond the fact that the relationship between the parents would seem to have been toxic and dysfunctional - I do not consider that I ought to be changing their present circumstances as to require them to spend time with the father on an unsupervised basis at this stage. 

44. There are no practical difficulties of any significance.  I am dealing with an order that will last for some six (6) months or so.

45. The mother seems to have a capacity to parent the children.  The father has a capacity, but there are question marks in that regard, and it is too early for this Court to make any findings. 

46. I should add that I am not ignoring or disregarding what the father says about the mother either.  He says that the mother is not encouraging the relationship, that the children want to spend time with him and that she has, for want of a better word, a bad attitude towards him as a parent. 

47. I am not sure how far I can take that submission, particularly noting that [V] in particular is essentially old enough to “vote with her feet” and [W] is almost of that age herself.  Moreover, if a fraction of what the mother says about the father’s behaviour over the years is true, she nonetheless did promote an ongoing relationship between the father and the children right up until 15 January - including providing them to the father on an unsupervised basis. 

48. I have addressed the issue of family violence briefly.  I do not propose to go through it any further. 

49. It is also fair to say that the father makes some allegations of family violence against the mother, although these are of much lesser seriousness than the allegations she makes about him. 

50. There is no order that I can make that will reduce the risk of further proceedings.  The proceedings are on foot, and they are not going away any time soon. 

51. In short, the father has some protective factors in his favour to which I have referred.  However, I nonetheless consider that supervised time is in the best interests of the children, particularly in light of:

    (a)the recent events of 15 January viewed against the backdrop of the past AVO and the allegations of family violence the mother makes; and

    (b)the impact on the children of spending time with the father that they may not feel entirely comfortable or safe about.

52. The court is of the view that supervised time is the only appropriate interim order to make at this time, regrettable though such an order is in many ways. 

53. That said, supervised time has a number of advantages which the father should bear in mind.  One is that an independent person can assist in re-integrating and continuing the relationship between the father and the children. 

54. It is not a "no contact" case.  The court has in other cases made orders whereby perpetrators of family violence do not spend time with their children at all.  I am not being asked to make such an order in this case. 

55. The father should be given the opportunity to address whatever parenting issues he has, not limited to any issues of disputed family violence, but to also take the opportunity to re-engage with the children in a way that they will regard as safe and secure.   Supervised time can occur while he continues with his mental health treatment and in the meantime he has the opportunity to further reflect on the situation from the children's perspective. 

56. I intend to limit the supervised time order to [X], [Y], and [Z] only.  I am specifically not including [V] in this order, given that she is seventeen (17), and nor am I including [W] in this order aged fifteen (15). 

57. However, my orders will provide that the mother is to encourage [V] and [W] to attend the father's supervised visits. 

58. The mother is to facilitate the children contacting the father by telephone or by text or email should the children express a wish to do so. 

59. I will put in place some restraints pursuant to section 68B of the Act in relation to non-denigration and not involving the children in the family law litigation.

60. I will put in place some machinery-type orders as to exchange of the parents’ contact details and authorities to receive information.

61. In this case I consider that it is not appropriate for me to make an order for equal shared parental responsibility because the relationship between the parents is toxic. 

62. Section 61DA(2) of the Act provides that the court is not to apply a presumption that equal shared parental responsibility would be in the best interests of the children if it has:

    reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child, or family violence.

63. The court has reasonable grounds to believe that this has occurred in the present case because the mother makes significant allegations about the father, and the father, in turn, makes some allegations albeit of less seriousness about the mother.  But in any event, the parties could not presently communicate properly anyway. 

64. As the only appropriate order is for the children to continue to live with the mother, the only logical order is that she, for now, have sole parental responsibility.  The mother will understand, as should the father, that this court must disregard its allocation of parental responsibility in an interim order when making a final order. 

65. Having had the opportunity now to further reflect on and read all of the material, the court is also minded to appoint an ICL.  I am mindful of the children's ages, and I am also mindful of the father's allegation that the mother may be, for want of a better word, “poisoning the children's minds” against him.  This is a matter that the ICL can explore, along with all of the other matters. 

66. I will include a request that the ICL be appointed expeditiously, because I do not want delays in this case. 

67. The involvement of an ICL will assist the court on 28 August. 

68. I will also order that in the meantime, upon release of the Child Inclusive Conference Memorandum, that the ICL be directed to confer with the parents concerning the ongoing appropriateness of the father's supervised time, and whether some alternate arrangement is more appropriate.  In making this order I am particularly mindful of the delay before I can get this matter back on before me. 

69. I am specifically directing the ICL to consider the Memorandum, to contact the parents, and to have a discussion about how the time arrangements can progress further if appropriate.  The ICL could potentially hold a litigation intervention conference after the release of the Memorandum to see whether a further interim agreement can be reached. 

70. I will give all parties leave to issue more than five (5) subpoenas given the allegations in this case.

Conclusion:

1. This is a difficult, confronting and in some ways tragic case, but ultimately I am of the view that orders need to be made for the father to spend time with the children, supervised at this time.  The orders are to be reviewed in August, by which time I will have the benefit of the Child Inclusive Conference Memorandum and, no doubt, some notes from the contact supervisors who will be independent. 

2. I will be in a better position to make interim orders on that date, including considering what orders (if any) to make for the two (2) older children.  That being said, I very much doubt that I will be making any formal orders about [V] spending time with either party given her age.

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Betts.

Date: 14 March 2019