NARDINI & NARDINI

FAMILY COURT OF AUSTRALIA

NARDINI & NARDINI

[2019] FamCA 37

CHILDREN – Parental responsibility – With whom the children spend time – Where the mother seeks equal shared parental responsibility and to spend time with the children – Where the mother seeks such time to transition from supervised to unsupervised time – Where the father seeks sole parental responsibility, for the children to live with him and to spend supervised time with the mother – Where the Independent Children’s Lawyer seeks orders for the children to initially spend supervised time with the mother, with an opportunity for the mother to demonstrate capacity to transition to unsupervised time – Where the mother has experienced significant mental health issues – Court finds that the parents do not have the capacity to communicate effectively – Court finds that the mother has not adequately acknowledged or addressed her mental health issues – Court finds that the children would face an unacceptable risk of harm in spending unsupervised time with the mother – Orders made for the father to have sole parental responsibility – Orders made for the children to spend supervised time with the mother – Orders made for the mother to have an opportunity to demonstrate insight into her mental health and her parenting capacity and upon so doing, the opportunity to transition to unsupervised time with the children upon agreement between the parties.

FAMILY VIOLENCE – Where the mother contends that her mental health was adversely impacted upon by family violence perpetrated by the father – Where the father alleges that the mother has been violent towards him and the children – Where the Court has concerns regarding the credibility of the mother’s evidence – Where the mother’s revised position does not assert that the children are at risk of harm in the father’s care.

Family Law Act 1975 (Cth) ss. 4AB, 43(1), 60B(1), 60CA, 60CC, 61DA, 65DAC, 65DAA, 69ZT(1)

Evidence Act 1995 (Cth) s. 140

Adamson & Adamson (2014) FLC 93-622
B & B (1993) FLC 92-357
Blinko & Blinko [2015] FamCAFC 146
Briginshaw v Briginshaw (1938) 60 CLR 336
Carlson & Fluvium [2012] FamCA 32
Cotton & Cotton (1983) FLC 91-330
Dundas & Blake (2013) FLC 93-552
H v K [2001] FamCA 687
Johnson & Page (2007) FLC 93-344
Jurchenko & Foster (2014) FLC 93-598
Mazorski & Albright (2007) 37 Fam LR 518
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
Moose & Moose (2008) FLC 93-375
Sigley v Evor (2011) 44 Fam LR 439
Slater v Light (2013) 48 FamLR 573
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
VR & RR (2002) FLC 93-099

APPLICANT:

Ms Nardini

RESPONDENT:

Mr Nardini

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

6095

2016

DATE DELIVERED:

31 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

9 - 13 April 2018, 29 May - 1 June 2018, 21 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson

SOLICITOR FOR THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

THE COURT ORDERS THAT:

All previous parenting orders in relation to the children, B, born ... 2008 and C, born … 2012 ("the children"), be discharged.
The father have sole parental responsibility for the children.
The children live with the father.
Other than for the times listed in order 5 herein, the children spend time with the mother, as follows:
(a)On each alternate weekend, from 4.30 pm to 7.30 pm on Saturday and from 12.00 pm to 6.00 pm on Sunday;
(b)The time on Saturdays referred to in order (4)(a) herein is to be spent with either B or C, individually, alternating between each child from fortnight to fortnight;
(c)The time on Sundays referred to in order (4)(a) herein is to be spent with both children together every fortnight;
(d)The mother is restrained from allowing or causing either of the maternal grandparents to be present during her time with the children, other than on two occasions per month that the mother spends time with the children in accordance with order (4)(a); and
(e)The above arrangements may be varied from time to time by written agreement between the parties.
In addition to the time specified in order (4)(a) herein, the children shall both spend time with the mother, as follows:
(a)On the mother's birthday, for a period of not less than three (3) hours as agreed between the parties, and failing agreement, from 4.00 pm to 7.00 pm;
(b)On Mother's Day, for a period of not less than four (4) hours as agreed between the parties, and failing agreement, from 3.00 pm to 7.00 pm;
(c)On each of the children's birthdays, for not less than two (2) hours as agreed between the parties, and failing agreement, from 5.00 pm to 7.00 pm; and
(d)During the Christmas period, as follows:
(i)In odd-numbered years, on Christmas Day, for a period of not less than six (6) hours as agreed between the parties, and failing agreement, from 1.00 pm to 7.00 pm; and
(ii)In even-numbered years, as follows:
A.On Christmas Eve, for not less than three (3) hours as agreed between the parties, and failing agreement, from 4.30 pm to 7.30 pm; and
B.On Christmas Day, for not less than three (3) hours as agreed between the parties, and failing agreement, from 8.00 am to 11.00 am.
In the event that the children's time with the mother pursuant to orders 4 and 5 herein falls on Father's Day or the father's birthday, the children's time with the mother shall be suspended and the children shall spend make up time with the mother for the time missed on such date as agreed between the parties, and failing agreement, on the weekend immediately following the missed time.
For the purposes of orders 4 and 5 herein:
(a)The children's time with the mother be supervised by F Group or other such supervisor as agreed between the parties;
(b)The costs associated with the supervision of the children's time with the mother be paid by the father, with the ongoing burden of this order (and previous supervision costs met by the father) to be reconsidered by the trial judge at any property settlement hearing, having regard to the then respective capacities of the parties arising from the outcome of that hearing; and
(c)The children’s supervised time with the mother take place at the former matrimonial home at M Street, Suburb N NSW ..., or other such place as agreed between the parties.
Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth), the father is permitted to temporarily take and send the children from the Commonwealth of Australia for the purpose of overseas travel and holidays each year, as follows:
(a)At any time that the children are living with the father;
(b)During school holidays between February and November for:
(i)A block period of two (2) consecutive weeks; and
(ii)A further block period of four (4) consecutive weeks; and
(c)During school holidays between December and January for a block period of three (3) consecutive weeks, when the mother's time with the children shall be suspended, provided that:
(i)Not later than 14 days in advance of the travel, the father provides to the mother a copy of:
A.All return airline tickets or booking confirmation for the children evidencing the children's return to the Commonwealth of Australia; and
B.An itinerary for the travel; and
C.Addresses of all places where the children will be staying overnight;
(ii)The children spend supervised make up time with the mother for the time(s) missed during the children's travel overseas as agreed between the parties, and failing agreement, on each subsequent weekend upon return from the overseas travel, until such time as the missed time(s) has been made up; and
(iii)The mother's time with the children pursuant to orders 4 and 5 herein shall resume on the first weekend following the children's return to the Commonwealth of Australia.
The father and the mother do all acts and things and sign all documents to ensure that the children have and maintain valid Australian passports and each parent shall sign all such documents within seven (7) days of receipt.
The father be responsible for all cost associated with obtaining the children's passports in accordance with order 9 herein.
The father shall ensure that the children continue to attend upon Ms BB, Psychologist, in accordance with Ms BB's recommendations.
The father shall provide Ms BB with a copy of all contact reports prepared by F Group, or such other professional agency providing supervision pursuant to order (7)(a) herein.
The father shall authorise Ms BB to communicate with the mother in the event that Ms BB considers such communication to be beneficial to her treatment of the children.
In the event that the mother engages with a Psychologist for the purpose of improving her parenting skills, as recommended by Dr E, the mother has leave to provide that Psychologist with a copy of the following documents:
(a)These orders;
(b)The Reasons for Judgment set out below;
(c)Dr E's reports dated 29 June 2017 and 30 May 2018;
(d)Transcript of Dr E's evidence in these proceedings on 1 June 2018; and
(e)Contact reports prepared by F Group or such other professional agency providing supervision pursuant to order (7)(a) herein.
In the event that the mother engages with a separate Psychologist and/or Psychiatrist for the purpose of monitoring her mental health, as recommended by Dr E, the mother has leave to provide that Psychologist and/or Psychiatrist with a copy of the following documents:
(a)These orders;
(b)The Reasons for Judgment set out below;
(c)Dr E's reports dated 29 June 2017 and 30 May 2018; and
(d)Transcript of Dr E's evidence in these proceedings on 1 June 2018.
In the event that the mother engages with a Psychologist for the purpose of improving her parenting skills:
(a)The mother is to notify the father in writing, as soon as practicable, of the name and contact details of the Psychologist;
(b)The mother is to authorise the Psychologist to communicate with the children’s psychologist, Ms BB; and
(c)Upon receipt of the information referred to in order (16)(a), the father is to authorise Ms BB to communicate with the mother’s Psychologist in relation to the children.
In the event that the mother provides the father with:
(a)A written report from her Psychologist, referred to in order 14 herein, which confirms:
(i)That the mother has engaged with that Psychologist, for the purpose of improving her parenting skills, for at least 12 months;
(ii)That the Psychologist has received and considered the documents referred to in order 14 herein; and
(iii)That the mother has demonstrated insight and change in relation to her interactions with the children, including improvement in her capacity to contain her emotions and to manage the children’s behaviour during contact visits; AND
(b)A written report from a separate Psychologist and/or Psychiatrist, referred to in order 15 herein, which confirms:
(i)That the mother has engaged with that Psychologist and/or Psychiatrist for the purpose of monitoring her mental health, for a period of at least 12 months;
(ii)That the Psychologist and/or Psychiatrist has received and considered the documents referred to in order 15 herein;
(iii)That the mother has demonstrated insight into her psychiatric history and the impact of her mental illness on her parenting capacity;
(iv)That the mother has complied with all recommendations for treatment, including attendance at therapy and taking any prescribed medication; and
(v)That the mother's mental state has been stable during the period of treatment; THEN
(c)The parties are to attend upon a Family Dispute Resolution practitioner for the purpose of attempting to reach agreement in relation to alternative arrangements for the children to spend time with the mother, including a transition to unsupervised time; and
(d)In the event that agreement cannot be reached, in that regard, the mother may file an application to vary these orders.
The father provide to the mother any information regarding the children’s health, emotional wellbeing or schooling received by him during the time that the children are in his care, including the details of any medication prescribed and/or taken by the children, school letters and reports.
The mother and the father shall each inform the other promptly of any illness or injury suffered by the children requiring hospitalisation or prescription medication, and in the event of the latter, each party shall ensure that the children are provided with such medication and that it is administered to them in accordance with the directions of the treating medical practitioner.
The mother and the father shall each authorise any treating medical practitioner or specialist to provide any information to the other party which either of them may reasonably require concerning the welfare of the children.
The mother and the father shall not discuss, or permit discussion, with any of the children, any aspect of these proceedings.
The mother and the father shall be restrained by injunction from denigrating or criticising, or allowing the denigration or criticism of the other, or their respective partners or family members, in the presence or hearing of either or both of the children.
The Independent Children’s Lawyer arrange a meeting with the children to explain the effect of the terms of these orders to them, insofar as these orders affect each of the children.
The parties and the Independent Children’s Lawyer be granted liberty to apply in the event that they seek orders for costs, upon providing the other parties and the Court with seven (7) days’ written notice.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6095 of 2016

Ms Nardini

Applicant

And

Mr Nardini

Respondent

REASONS FOR JUDGMENT

Introduction

The parties, Ms Nardini (“the mother”) and Mr Nardini (“the father”), are engaged in proceedings in this Court involving both parenting and property matters. This decision relates only to the parties’ competing parenting applications, regarding the children B born in 2008 (“B”), and C, born in 2012 (“C”), collectively referred to herein as “the children”.
The final hearing of those parenting proceedings ensued over a period of 10 days, being 9 to 13 April 2018, 29 May to 1 June 2018 and 21 August 2018.
The central issue in these proceedings is whether the children are at risk in the unsupervised care of the mother, as a result of the mother experiencing mental health issues. Related to that is the question of whether the mother continues to suffer mental health challenges. In that regard, the mother contends that her mental health was adversely impacted upon by family violence she was subjected to during the course of her relationship with the father. She contends that, in the period subsequent to the parties’ separation, she has not been exposed to that violence and, consequently, the mental health difficulties from which she previously suffered have now resolved.
The father denies perpetrating acts of family violence against the mother and alleges that the mother has failed to adequately acknowledge and address the extent of her mental health challenges. He contends that, unless and until the mother addresses those challenges, the children face an unacceptable risk of psychological harm in spending unsupervised time in her care.
Accordingly, the two central issues in this case are firstly, whether the father perpetrated acts of family violence against the mother, causing her mental health to decline and secondly, whether the mother’s acknowledged mental health challenges have now resolved such that it is appropriate for orders to be made for the children to spend unsupervised time in her care.

Background

The relevant background facts and, where they are disputed, the parties’ contentions, are set out immediately below.
In 1973, the father was born in Australia. He is currently aged 45 years.
In 1976, the mother was born in the Europe. She is currently aged 42 years.
In May 1991, the mother immigrated to Australia with her mother and stepfather.
In or around March 2003, the parties met. The mother asserts that they commenced cohabitation in 2004, while the father asserts that they commenced cohabitation in 2005. That discrepancy is not material to these proceedings.
In 2007, the parties were married.
In 2008, B was born. She is currently aged 10 years.
Following B’s birth, the mother took one year of paid maternity leave from her employment. During that time, the mother was the primary carer for B and attended to household duties. The maternal grandmother also provided assistance with the care of B and undertook some household duties for a few hours on Wednesdays, Thursdays and weekends. She describes the mother as a dedicated and caring parent. The father asserts that he assisted in caring for B before and after work. For the purposes of these proceedings, for reasons which I will set out below, I accept that until 29 April 2015, the mother was the primary carer for the children.
In February 2009, the parties purchased a property at M Street, Suburb N NSW . (“the former matrimonial home”).
In late-2009, the father attests that the parties employed a full time nanny to assist with B’s care and the household cooking. The mother asserts that the parties first employed a full time nanny in 2010, as well as a cleaner, when she returned to work four days per week. That discrepancy is not material to these proceedings.
In April 2011, the mother alleges that the parties had an argument after the father returned from a business trip to Asia. The mother attests that, during that argument, the father hit her across her face a number of times. The mother asserts that she stayed home from work the following day to hide her bruises, but did not seek medical attention. The maternal step-grandfather asserts that he observed the mother to have such bruises.
In 2012, C was born. He is currently aged six years.
Following C’s birth, the mother took leave from her employment for approximately 17 months to care for the children. The maternal grandmother also took leave from her employment for two weeks to assist in caring for the children. The mother asserts that she was caring for the children on a full time basis during this period, while the father asserts that B was attending childcare three days per week. At paragraph 10, the maternal grandmother’s Affidavit makes mention of B attending childcare during that period. That discrepancy is not material to these proceedings.
In late-2012, the father asserts that the parties employed a new nanny on a full time basis. Whether or not that did occur is not material to these proceedings.
In 2014, B commenced attending kindergarten at L School, Suburb N. The mother subsequently returned to work three days per week.

In 2014, the father met Ms O.
In April 2015, the father asserts that he observed changes in the mother’s behaviours that impacted upon her parenting abilities and led to the children exhibiting highly concerning behaviours. The father says that, from that time, he endeavoured not to leave the children alone with the mother and that the maternal grandmother became more actively involved in the children’s care.
On 29 April 2015, the mother had porcelain veneers placed on her teeth. The mother states that, while she was initially happy with the results of that procedure, after the father made “derogatory” comments about the new appearance of her teeth, she became obsessed with them. The father denies that any such comments were made, but acknowledges that the mother’s mental health deteriorated after that procedure. These events will be discussed in greater detail below.
In May 2015, Dr CC, a General Practitioner, diagnosed the mother as having had an anxiety attack and referred her to Dr DD, a Psychiatrist at the EE Clinic, for a week-long program.
In late-June 2015, the parties and B travelled to Europe, at the invitation of a religious leader. During that trip, the mother asserts that she became depressed and obsessed with the appearance of her teeth. The father says that the mother refused to attend the majority of the functions that they had been invited to, instead choosing to visit beauty shops.
On returning from Europe, the mother alleges that the father hit her in front of the children on multiple occasions and, as he had done in Europe, according to the mother, continued to encourage B to call her names. The mother began taking anti-depressant medication.
In July 2015, the mother alleges that the father confiscated her car keys, so that she was unable to drive, and refused to sleep in the same bed as her, often sleeping in B’s bed, with B.
Between July and August 2015, the father asserts that the mother became aggressive towards him and the children and was obsessed with her appearance, taking up to 100 photographs of herself each day. In July 2015, the mother was diagnosed with body dysmorphic disorder by Dr DD and was prescribed antipsychotic and mood stabilising medication. The father asserts that Dr DD strongly recommended that the mother attend a voluntary “live in” program at the EE Clinic. The mother contends that she was misdiagnosed by Dr DD and that her mental health issues had been caused by the father behaving violently towards her.
In August 2015, the father attests that he observed the mother shake the children, demanding that they give her affection and that the mother scratched B’s face while doing so. The mother disputes having ever acted in such a manner. During that period, the maternal step-grandfather says that he observed the mother begin to smoke as a means of coping with her stress. He recalls driving past the former matrimonial home and seeing the mother hiding under a tree, smoking a cigarette. He asserts that he assisted her to climb back into the house through an open window on the ground floor, as the front door was locked. He further asserts that the mother would often walk to his and the maternal grandmother’s home to shower and brush her teeth after smoking, so that the father would not be able to smell the smoke on her.
The mother asserts that the father did not approve of her smoking and alleges that it resulted in him verbally abusing her, pulling her hair and, on occasions, locking her out of the house. The father acknowledges locking the mother out of the house on several occasions, but says he did so in order to protect the children from becoming distressed by her behaviour. On certain occasions when the mother was locked out, she would walk to the maternal grandmother’s house, which was on the same street. The maternal grandmother asserts that, on certain of those occasions, she would use her spare key to assist the mother to the former matrimonial home. She contends that the father attempted to remove that spare key from her.
In August 2015, the mother was scheduled under the Mental Health Act 2007 (NSW) (“the Mental Health Act”) and admitted to Q Hospital. The father and the maternal grandmother visited the mother in hospital during that time.
Later in August 2015, the father asserts that he awoke to whimpering sounds at 4.00 am and found the mother, curled up inside C’s cot, laying on top of C. The mother asserts that this incident occurred at the beginning of September 2015, and that she was not laying on top of C, but changing his nappy.
In September 2015, an incident occurred where the father called an ambulance and the police to the former matrimonial home. During that incident, the police handcuffed the mother and she was taken to R Hospital. The parties are in dispute regarding the facts surrounding that incident. Their respective accounts are set out below.
After being discharged from the R Hospital, the mother admitted herself to the FF Clinic, where she remained for two weeks.
In October 2015, the father says that the parties and the children were on holiday at GG Town, when he observed the mother become aggressive towards B, grabbing her wrist forcibly and twisting her arm, which left a red mark. He states that B appeared scared and cried. The mother denies ever having physically harmed the children.
In October 2015, the father alleges that the mother inadvertently struck B near her eye while demanding affection from her. The father further asserts that, around that same time, the mother held C upside down and shook him, while C screamed. The father states that B witnessed that event and screamed. The mother disputes having ever acted in such a manner.
In late October 2015, the mother asserts that she was introduced by the father to Ms O at a mutual friend’s wedding. Ms O is the father’s current partner.
On 3 November 2015, the parties separated. On that date, the father and the children commenced living at the home of the paternal grandfather in Suburb U (“the Suburb U property”), while the mother continued to reside at the former matrimonial home. From that time, the children only spent time with the mother on a supervised basis. The parties are in dispute about the facts surrounding those circumstances. Their respective accounts are set out below.
Between 3 November and 3 December 2015, the mother asserts she did not see the children, while the father asserts that he took the children to see the mother twice per week from approximately mid-November 2015.
Between approximately 3 December and 17 December 2015, the mother visited C at his childcare centre for one hour on Mondays, Tuesdays and Wednesdays, and for two hours on Thursday and Fridays.
In January 2016, the mother was scheduled under the Mental Health Act and admitted to V Hospital, where she stayed for one week.
In early February 2016, following a disagreement between the parties, the police were called and the mother was arrested and charged with assault. The police issued a provisional Apprehended Domestic Violence Order (“ADVO”) against the mother for the protection of the father and the children.
In late-February 2016, the mother admitted herself to X Hospital, where she stayed for three weeks.
In early June 2016, an interim ADVO was issued for the protection of the father and the children.
In July 2016, the father and children moved to live at an apartment in Suburb Z.
In July 2016, the parties went to Asia with the children for three weeks. The mother stayed in a separate room to the father and the children, but spent some time alone with the children on a few occasions. The mother asserts that the father verbally abused her almost every day during that holiday and that the children would repeat things that they had heard him say to her, including: “You are ugly”, “You are fat”, “You are smelly” and “I could do much better than you”. The mother says that the children resisted her affection. The mother asserts that, during that period, the parties had sexual intercourse almost every second day, while the kids were at Kids Club.
On 22 July 2016, the mother commenced attending upon Associate Professor J (“Professor J”), Psychiatrist, for treatment of anxiety and depression.
In late-August 2016, the father asserts that he received a number of telephone calls from various police officers at different Police Stations regarding allegations made by the mother of family violence and child abduction as against him. The mother admits to making complaints to three different Police Stations during that period. No police action was taken in respect to the allegations.
On 31 August 2016, Professor J contacted the father to arrange for the mother to spend time with the children. The father did not agree to that course.
In early September 2016, the mother was arrested and charged with breaching the ADVO for having sent emails and text messages to the father. The mother was granted bail and released the following day.
On 7 September 2016, Professor J the following entry in his clinical notes regarding the mother:
hearing 8 November (incl family Court)
Thos wants a report from TS.
Well enough to look after the kids
that [Ms Nardini] is fragile and jail would be bad for her mental state
It is not disputed that the reference to “Thos” is a reference to Counsel for the mother.
On 21 September 2016, the mother filed an Initiating Application seeking parenting and property orders.
On the 30 September 2016, Professor J the following entry in his clinical notes regarding the mother:
Court date 7 November
AVO 8 November
Thos says it is going pretty well – still needs to send Affidavit
worried about whether they will ask for another psychiatrist or psychological testing.
On 18 October 2016, Professor J the following entry in his clinical notes regarding the mother:
was too emotional on 300mg Eflexor - back to 225 night
+ Seroquol 25 mg morning
50 mg night.
On 26 October 2016, Professor J the following entry in his clinical notes regarding the mother:
court is 7th November
needs to present well in court to get custody of the children
In October 2016, the father hired a nanny, Ms HH, to assist with the care of the children in the evenings during the week.
On 1 November 2016, Professor J released his first report in relation to his treatment of the mother.
On 6 November 2016, the mother spent time with B at a restaurant in the presence of the parties’ mutual friend, Ms II.
On 16 2016, I made orders, among other things, for the appointment of an Independent Children’s Lawyer (“ICL”) and the referral of the matter to the Child Responsive Program. The following interim parenting orders and notations were also made:
… THE COURT ORDERS PENDING FURTHER ORDER THAT:
14. The children, B born … 2008 and C born … 2012, (“the children”) live with father.
15. The children are to spend time with mother:
a. each alternate Sunday for a period not less than three (3) hours, with such time to commence on Sunday, 20 November 2016.
b. In so far as supervision can be arranged, for not less than three (3) hours on Christmas day; and,
c. In the event that supervision cannot be arranged for Christmas day, the children are to have telephone contact with the mother for a period of approximately 30 minutes on Christmas day provided that the children’s telephone conversation with the mother is progressing in a manner that is not causing distress to the children.
16. The children’s time with the mother pursuant to Order 12(a) and 12(b) above, is to be supervised by F Group, or such other professional supervisor as may be agreed between the parties in writing.
17. The costs associated with supervision are to be paid by father with those costs to be characterised and dealt with at the final hearing of property matters.
18. The mother’s supervised time with the children is to take place at former matrimonial home at M Street, Suburb N NSW, or such other place as may be agreed between the parties.
19. Subject to the ICL indicating agreement with same, that the maternal grandmother and step –maternal grandfather are permitted to attend the time that the children spend with the mother, subject to the supervisor being at liberty to terminate the supervision of any time irrespective of who is in attendance.
20. The children’s time with the mother pursuant to Order 12 above, is suspended during:
a. the second half of the December / January school holidays; and,
b. subject to the father causing to be provided to mother’s solicitors his proposed itinerary of travel, a copy of any return airline tickets, telephone contact details, the father is at liberty to travel with children outside the Commonwealth of Australia for purpose of a holiday with the children. …
THE COURT NOTES THAT:
A. The [father] is prepared to meet the costs of those matters set out Orders 16(a), 16(b) and 16(c) of the Orders proposed by the mother in her Initiating Application filed 21 September 2016.
B. The father undertakes that he will not seek to intrude or otherwise interfere with the quite enjoyment by the mother of former matrimonial home subject to agreement between the parties or any order of the Court. …
Between 16 November 2016 and 25 July 2017, the children spent time with the mother, in accordance with those orders, on approximately 13 occasions.
In December 2016, Ms HH ceased working as the children’s nanny.
In December 2016, the father commenced a relationship with Ms O. The children first met Ms O on 24 December 2016, when they had dinner with her and the father.
In January 2017, the children, the father and Ms O travelled to JJ Town.
In early-2017, Ms O commenced staying with the father and the children on two to three evenings per week. Ms O currently stays with the father and the children on five to six evenings per week.
On 22 February 2017, Professor J released an updating report in relation to the mother.
In April 2017, the father and children moved into a rented premises in the Eastern Suburbs of Sydney.
On 16 April 2017, the children were due to spend time with the mother. The mother asserts that the father arbitrarily cancelled that supervised visit.
On 17 May 2017, the Child Responsive Program Memorandum of Ms D was released.
Between 6 June and 4 August 2017, the father hired a nanny, Ms KK, to care for the children.
On 29 June 2017, the Single Expert Report of Dr E was released.
On 25 July 2017, I made the following orders:
1. The parenting and property matters are bifurcated.
2. Urgency is granted in relation to the hearing of the parenting proceedings.
3. The proceedings are to be listed for hearing before Justice McClelland over 5 days commencing on 9 April 2018.
4. The parties and the Independent Children’s Lawyer have liberty to apply.
5. Interim judgment be reserved with respect to the parenting matter.
6. All extant applications be adjourned to a date and time to be fixed for judgment hearing.
AND THE COURT ORDERS BY CONSENT PENDING FURTHER ORDER THAT:
7. The children, B born … 2008 and C born … 2012, (“the children”) live with the father.
8. The children to spend supervised time with the mother:
During the 2017 school term 3:
[8].1 each alternate Sunday for a period of not less than four (4) hours;
During the 2017 term 3 school holidays:
[8].2 On each Sunday, for a period of not less than four (4) hours.
During the 2017 school term 4 on a 2 weekly basis:
[8].3 Week 1: On Sunday for a period of not less than four (4) hours;
[8].4 Week 2: On Thursday after school to 6pm.
During the 2017 term 4 school holidays on a 2 weekly basis:
[8].5 Week 1: Sunday, for a period of not less than four (4) hours;
[8].6 Week 2: Thursday, for a period of not less than four (4) hours;
[8].7 On Christmas Day, for a period of not less than six (6) hours.
From Term 1 2018, during the school term on a 2 weekly basis:
[8].8 Week 1: On Sunday for a period of not less than sic [sic] (6) hours;
[8].9 Week 2: On Thursday after school to 6pm.
From Term 1 2018, during the school holidays on a 2 weekly basis:
[8].10 Week 1: Sunday, for a period of not less than six (6) hours;
[8].11 Week 2: Thursday, for a period of not less than six (6) hours;
[8].12 On Christmas Day, for a period of not less than six (6) hours.
9. The children’s time with the mother pursuant to order 8 is to be supervised by F Group, or such other professional supervisor as may be agreed between the parties in writing.
10. The costs associated with supervision are to be paid by the father with those costs to be characterised and dealt with at the final hearing of the property matters.
11. The mother’s supervised time with the children is to take place at the former matrimonial home at M Street, Suburb N NSW or any other place as may be agreed in writing between the parties.
12. The material [sic] grandmother and [maternal step-grandfather] are permitted to attend the time that the children spend with the mother, subject to the supervisor being at liberty to terminate the supervision of anytime irrespective of who is in attendance.
13. The parties are each restrained by injunction from discussing these proceedings with the children or within the hearing of the children.
Between 25 July 2017 and 9 April 2018, the children spent time with the mother in accordance with those orders on approximately 21 occasions. The maternal grandmother and step-grandfather were also present on a majority of those occasions.
On 21 August 2017, the father hired a nanny, Ms LL, to care for the children after school, five days per week.
In late September 2017, the mother entered a plea of guilty in respect of two contraventions of the ADVO issued in June 2016 and a plea of not guilty in respect of the assault charge. The assault charge was ultimately dismissed by the Magistrate, after a contested hearing. A section 10 bond of good behaviour was imposed on the mother for six months.
In October 2017, the mother admitted herself to X Hospital at Suburb ZZ, where she stayed for approximately three weeks.
On 2 October 2017, the children commenced counselling with Ms BB (“Ms BB”), Clinical Psychologist.
In September 2017, a divorce order was made.

Applications

The mother’s application

The mother initially sought that parenting orders be made in accordance with her Initiating Application filed on 21 September 2016, as follows:
1. That the Mother have sole parental responsibility for the care, welfare and development of the children of the marriage, [B] born … 2008 and [C] born … 2012.
2. That the children live with the Mother.
3. That the Father spend time with the children from 9am to 5pm each Sunday upon the basis that this time is supervised by a responsible third party as agreed to by the Mother or a professional supervising body or in the alternative that such time take place under supervision at a Contact Centre.
The proceedings, which lasted 10 days, proceeded on the basis that the mother was seeking orders for there to be a change of the children’s residence from the father’s home to hers, with the children spending limited supervised time with the father. The mother made that application on the basis that the children were subjected to an unacceptable risk in the care of the father, as a result of the fact that there was a history of the father engaging in acts of family violence. Accordingly, a significant portion of the hearing time was occupied by a consideration of the mother’s allegations, in that regard.
On the last day of the hearing, being 21 August 2018, the following orders were made:
1. The [mother] forward a proposed minute of order to my Chambers, by close of business on 23 August 2018.
2. The [father] and the Independent Children’s Lawyer provide any response to matters raised in the [mother’s] minute of order, by close of business on 27 August 2018.
In accordance with those directions, the following amended minute of proposed orders was provided by the mother to my Chambers:
1. That all previous interim parenting orders be discharged.
2. That the Mother and the Father have equal shared parental responsibility for the long-term care, welfare and development of the children of the marriage, B born ... 2008 and C born ... 2012.
3. That the children live with the Father.
4. That the Mother spend time with the children as follows:-
(i) On alternate weekends from 9am until 6pm on Saturday, such time to be supervised by [F Group] and from 9am until 6pm on Sunday, such time to be unsupervised, for a period of four (4) weekends.
(ii) On alternate weekends from 9am on Saturday until 6pm on Sunday, such time to be unsupervised, for a period of four (4) weekends.
(iii) On alternate weekends from after school on Friday until 6pm on Sunday, such time to be unsupervised, for a period of four (4) weekends.
(iv) On alternate weekends from after school on Friday until the commencement of school on the following Monday, such time to be unsupervised, commencing upon the expiration of the time referred to in sub-paragraph (iii) herein.
(v) From 9am until 6pm on Mother's Day if Mother's Day does not fall on a weekend when the children are spending time with the Mother.
(vi) That the children's time with the Mother be suspended from 9am until 6pm on Father's Day if Father's Day falls on a weekend when the children are spending time with the Mother.
(vii) From 9am to 6pm on the Mother's birthday if such birthday falls on a weekend when the children are not spending time with the Mother and from after school until 7pm if such birthday falls on a school day.
(viii) From 9am to 2pm on each of the children's birthdays if such birthdays fall on a weekend when the children are not spending time with the Mother and from after school until 7pm if such birthdays fall on a school day.
(ix) That the children's time with the Mother be suspended from 9am until 2pm on each of the children's birthdays, if such birthdays fall on a weekend when the children are spending time with the Mother and from after school until 7pm if such birthdays fall on school day when the children are spending time with the Mother.
(x) From 9am on Christmas Eve until noon on Christmas Day in alternate years commencing Christmas Eve 2018 and in even numbered years thereafter.
(xi) From noon on Christmas Day until 6pm on Boxing Day in alternate years commencing Christmas Day 2019 and in odd numbered years thereafter.
5. That the children spend time with the Mother for one half of the children's subsequent school holiday periods commencing at the end of Term 2, 2019 and in the event of there being no agreement between the parties, for the first half of such holiday periods in odd numbered years and for the second half of such holiday periods in even numbered years.
6. That to facilitate the children spending time with the Mother pursuant to Orders 4 and 5 herein, the Father shall deliver the children to the Mother's residence at the commencement of such period and the Mother shall return the children to the Father's residence at the conclusion of such period, unless the time the children spend with the Mother is to commence or conclude after or before school, when the Mother shall collect the children from and redeliver them to school.
7. That upon the commencement of Term 1, 2020 and during all subsequent terms thereafter, the children live with the Mother in alternate weeks from 9am on Monday until 9am on the following Monday.
8. That the Mother engage with a psychologist and/or a psychiatrist for the purposes of monitoring her mental health and do all things necessary to attend all consultations as may be recommended by the psychologist/psychiatrist and follow all recommendations in relation to any requisite treatment which may be made.
9. That the Mother authorize the psychologist/psychiatrist engaged pursuant to Order 8 herein to communicate with the children's psychologist, [Ms BB] and/or such other psychologist/psychiatrist as may be nominated by [Dr E] to provide progress reports upon initially a three monthly basis as to the state of the Mother's mental health and the Mother's compliance with the recommendations of such psychologist/psychiatrist.
10. That the time for the provision of progress reports as referred to in Order 9 herein be extended from a three monthly basis to a six monthly basis after a period of twelve months has elapsed from the date of these Orders.
11. That in the event that it is reported by the psychologist/psychiatrist engaged pursuant to Order 8 herein, that the Mother has failed to:-
(i) comply with all recommendations for treatment including attendance at therapy and taking such medication as may be prescribed; or
(ii) demonstrate that her mental state has been stable during any period of treatment;
the unsupervised time the children spend with the Mother shall be suspended and any time which the children spend with the Mother shall be limited to Saturdays and Sundays from 9am to 6pm on alternate weekends supervised by F Group pending the psychologist/psychiatrist engaged pursuant to Order 8 providing an opinion in writing to [Ms BB] and/or such other psychologist/psychiatrist as may be nominated by [Dr E] pursuant to Order 9 herein that the Mother has resumed compliance with all recommendations and demonstrated that her mental state has been stable and that it is appropriate for the resumption of unsupervised time with the children.
12. That in the event that the psychologist/psychiatrist engaged pursuant to Order 8 herein opines that the Mother's failures in relation to Order 11 herein are of such a nature that they constitute an unacceptable risk to the children's welfare that all time that the Mother spends with the children be suspended pending the Mother submitting to a comprehensive psychological investigation as the status of her mental health by an independent psychiatrist as nominated by the psychologist/psychiatrist appointed pursuant to Order 9 herein.
13. That the Mother be permitted to attend all of the children's activities, including assemblies, special celebrations and events and parent/teacher nights to which parents are expressly invited to attend at the children's school.
14. That the Father provide to the Mother any information regarding the children's health, emotional wellbeing or schooling received by him during the time the children are in his care including any medication prescribed and/or taken, changes in behaviour, school letters and reports.
15. That the Mother and Father shall each inform the other promptly of any illness or injury suffered by the children requiring hospitalization or prescription medicine and in the event of the latter each parent ensure that the children are provided with such medication and that it is administered to them in accordance with the directions of the treating medical practitioner.
16. That both the Mother and Father shall authorize any treating medical practitioner or any treating specialist to provide any information to the other which either of them may reasonably require concerning the welfare of the children.
17. That the Mother and Father each be restrained from denigrating or making derogatory remarks in respect of the other party in the presence of or within the hearing of the children or from allowing any third party to do so in the presence of or within the hearing of the children.
18. That the Mother and Father each be restraining from assaulting, molesting, abusing, harassing or in any way interfering with the other.
19. That the Mother and Father each be restrained from discussing or permitting discussion in the presence or hearing of the children of any aspects of these proceedings.
20. That if either of the children express a desire to telephone either the Mother or the Father when they are in the care of the other parent, that parent shall do all acts and things to facilitate the children having telephone contact with either the Mother or the Father.
21. That the Father do all acts and things to arrange for [Ms BB] to explain the effect of these Orders to each of the children, as soon as practicable after these Orders have been made.

As can be seen from the mother’s amended minute of order, she now concedes, at proposed order 3, that it is appropriate that, in the immediate future, the children remain living with the father. An inference can, therefore, be drawn from that change in position that the mother no longer contends that the children are at risk of harm in the father’s care.
The mother’s amended minute of order proposed that the children spend an increasing amount of time with her, with that time to be initially both supervised and unsupervised. That period of proposed partial supervision extends for only four weeks, at which point the children would transition to spending unsupervised overnight time with the mother. For reasons which I set out below, I consider that the children are at risk of harm if they are to spend unsupervised time with the mother in the near future.
The mother’s proposal would ultimately see the children eventually spending unsupervised equal time with the parties. The mother proposed that the increase in the children’s time with her occur in conjunction with her mental health being monitored by a Psychologist and/or Psychiatrist.
It is unfortunate that the mother left it so long to adopt a more reasonable position. On 25 August 2017, I made in orders in respect to interim parenting arrangements concerning the children. In my Reasons for Judgment, I stated:
… the Court will, at the final hearing, be particularly interested in whether the mother and the maternal grandparents have acknowledged the extent to which the mother has suffered from mental health challenges and that they are taking appropriate steps to address those concerns.
If the mother had obtained appropriate therapeutic intervention in the period between August 2017 and February 2018, the Court would have been in a much better position to assess the current state of the mother’s mental health and her prognosis for the future. Evidence of the mother’s mental health having been monitored by appropriate professionals would have given the Court greater confidence in contemplating an increase in the amount of time that the children spend with her and the circumstances in which that time could become unsupervised.
Equally, if the maternal grandmother and maternal step-grandfather had appropriately acknowledged the Court’s concerns regarding the mother’s mental health and assisted her in obtaining ongoing therapeutic intervention, the Court would have had greater confidence of their ability to be the supervisors of the children’s time with the mother.
While the mother’s belated acknowledgement that it is appropriate for her to engage a Psychologist and/or Psychiatrist for the purpose of monitoring her mental health is to be welcomed, I accept the validity of the submissions of Counsel for the father that the mother’s amended minute of order was provided at an entirely inappropriate stage in the proceedings.

The father’s application

At the hearing, the father sought that the following parenting orders be made, in accordance with his Response filed on 14 November 2016:
1. The respondent have sole parental responsibility for decisions in respect of matters going to the long term care, welfare and development of the children, [B] born ... 2008 and [C] born ... 2012 (the children).
2. The children live with the respondent.
3. The children spend time with the applicant each alternate Sunday for a period of not less than 2 hours.
4. For the purposes of Order 3:
4.1 The children's time with the applicant be supervised by [F Group] or other such supervisor as agreed between the parties;
4.2 The costs associated with the supervision of the children's time with the applicant by paid by the applicant; and
4.3 The supervised time take place at the former matrimonial homer [sic] at [M Street, Suburb N] or other such place as agreed between the parties.
Specific issues
5. Neither the applicant nor the respondent shall discuss or permit discussion with any of the children any aspect of these proceedings (save and except for the effect of the terms of these Orders in so far as the Orders affect each of the children).
6. Neither the applicant nor the respondent shall denigrate or criticise or permit the denigration or criticism of the other to any of the children or in the presence or hearing of any of the children.
Following receipt of the mother’s amended minute of order, the father amended his proposed minute of order, as follows:
1. That orders be made in accordance with paragraphs 1 to 3, 4.1.1, 4.1.3, 4.1 .4, 4.1.6, 5 to 10 and 12 to 14 of the document titled "Final Orders proposed by the Independent Children's Lawyer 21 August 2018".
2. That the mother spend time with the children as follows and subject to the conditions in Orders 3, 4 and 5:
2.1 On the mother's birthday for a period of not less than three (3) hours as agreed between the parties and failing agreement from 4pm to 7pm;
2.2 On Mother's Day for a period of not less than four (4) hours as agreed between the parties and failing agreement from 3pm to 7pm;
2.3 For not less than two (2) hours on each child's birthday as agreed between the parties and failing agreement from 5pm to 7pm;
2.4 For Christmas as follows:
2.4.1 In odd numbered years on Christmas Day for a period of not less than 6 hours as agreed between the parties and failing agreement from 1 pm to 7pm;
2.4.2 In even numbered years as follows:
[2.4.2.1] On Christmas Eve for not less than 3 hours as agreed between the parties and failing agreement from 4.30pm to 7.30pm;
[2.4.2.2] On Christmas Day for not less than 3 hours as agreed between the parties and failing agreement from 8am to 11 am.
3. In the event the children's time with the mother pursuant to Orders 1 and 2 falls on Father's Day or the Father's Birthday, the children's time with the mother shall be suspended and the children shall spend make up time with the mother for the time missed on such date as agreed between the parties and failing agreement on the weekend immediately following the missed time.
4. That for the purposes of Orders 1 and 2:
4.1 the children's time with the mother be supervised by any of the following:
4.1.1 [Ms MM];
4.1.2 [Ms NN]; and
4.1.3 [Ma OO]
and in the event those supervisors are not available, the children's time with the mother be supervised by [F Group] or such other supervision agency or supervisor as agreed between the parties in writing;
4.2 the costs associated with the supervision of the children's time with the mother be paid by the father with the ongoing burden of this order (and previous supervision costs met by the father) to be reconsidered by the trial judge at any property settlement hearing having regard to the then respective capacities of the parties arising from the outcome of that hearing;
4.3 the supervised time take place at the former matrimonial home at [M Street, Suburb N] or other such place as agreed between the parties in writing; and
4.4 the mother be restrained by injunction from permitting the maternal grandmother and/or the maternal step-grandfather from being present during her time with the children, other than on two Sundays in each calendar month.
5. That pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth) the father is permitted to temporarily take and send the children from the Commonwealth of Australia for the purpose of overseas travel and holidays each year as follows:
5.1 At any time the children are living with the father;
5.2 During school holidays during February to November for:
5.2.1 A block period of two (2) consecutive weeks; and
5.2.2 A further block period of four (4) consecutive weeks; and
5.3 During school holidays during December to January for a block period of three (3) consecutive weeks and the mother's time with the children shall be suspended provided that:
5.4 the father provides to the mother not later than 14 days in advance of the travel a copy of:
5.4.1 all return airline tickets or booking confirmation for the children evidencing the children's return to the Commonwealth of Australia; and
5.4.2 Itinerary and addresses of all places where the children will be staying overnight.
5.5 the mother spend supervised make up time with the children for the time(s) missed during the children's travel overseas as agreed between the parties and failing agreement on each subsequent weekend upon return from the overseas travel until such time as the missed time(s) has been made up.
5.6 the mother's time with the children pursuant to Orders 1 and 2 shall resume on the first weekend following the children's return to the Commonwealth of Australia.
Specific issues
6. That the father and the mother do all acts and things and sign all documents to ensure that each child has and maintains a valid passport and each parent shall sign all such documents within 7 days upon receipt of any application for an Australian passport being provided to the other parent to facilitate each child maintaining a valid Australian passport.
7. That the father be responsible for all cost associated with obtaining the children's passports in accordance with Order 6 herein.
8. That the mother and the father shall not discuss, or permit discussion, with any of the children any aspect of these proceedings.
9. That the mother and the father shall be restrained by injunction from denigrating or criticising or permitting the denigration or criticism of the other, or their respective partners, to any of the children or in the presence or hearing of any of the children.
10. That the ICL arrange a meeting with the children to explain the effect of the terms of these Orders in so far as the Orders affect each of the children.

The Independent Children’s Lawyer’s application

The ICL seeks that orders be made in accordance with a document tendered by her at the hearing (“MFI-B”), as follows:
1. That all previous parenting orders in relation to the children, [B], born ... 2008, and [C], born ... 2012 ("the children"), be discharged.
2. That the father have sole parental responsibility for the children.
3. That the children live with the father.
4. That the children spend time with the mother as follows:
[4.1.] On each alternate weekend, from 4.30 pm to 7.30 pm on Saturday and from 12 pm to 6 pm on Sunday.
[4.2.] Such time to be supervised by [F Group], or other service or person agreed in writing between the parties, with the father to bear the cost of supervision.
[4.3.] The time on Saturdays referred to in Order [4.1.] is to be spent with either [B] or [C] individually, alternating between each child from fortnight to fortnight.
[4.4.] The time on Sundays referred to in Order [4.1.] is to be spent with both children together every fortnight.
[4.5.] The mother is restrained from allowing or causing either of the maternal grandparents to be present during her time with the children, other than on two occasions that the mother spends time with the children in accordance with order [4.4.] in each 4 week period.
[4.6.] The above arrangements may be varied from time to time by written agreement between the parties.
5. The father shall ensure that the children continue to attend upon Ms BB, psychologist, in accordance with [Ms BB's] recommendations.
6. The father shall provide [Ms BB] with a copy of all contact reports prepared by [F Group], or any other professional agency providing supervision pursuant to Order 4.1.2.
7. The father shall authorise [Ms BB] to communicate with the mother in the event that [Ms BB] considers such communication to be beneficial to her treatment of the children.
8. In the event that the mother engages with a psychologist for the purposes of improving her parenting skills as recommended by [Dr E], then the mother has leave to provide the psychologist with a copy of the following documents:
8.1. Final orders made by Justice McClelland;
8.2. Reasons for judgment of Justice McClelland;
8.3. [Dr E's] reports dated 29 June 2017 and 30 May 2018;
8.4. Transcript of [Dr E's] evidence in these proceedings on 1 June 2018; and
8.5. Contact reports prepared by [F Group] or any other professional agency providing supervision pursuant to order 4.1.2.
9. In the event that the mother engages with a separate psychologist and/or psychiatrist for the purposes of monitoring her mental health as recommended by [Dr E], then the mother has leave to provide that psychologist/psychiatrist with a copy of the following documents:
9.1. Final orders made by Justice McClelland;
9.2. Reasons for judgment of Justice McClelland;
9.3. [Dr E's] reports dated 29 June 2017 and 30 May 2018, and
9.4. Transcript of [Dr E's] evidence in these proceedings on 1 June 2018.
10. In the event that the mother engages with a psychologist for the purposes of improving her parenting skills:
10.1. The mother is to notify the father in writing, as soon as practicable, of the name and contact details of the psychologist;
10.2. The mother is to authorise the psychologist to communicate with the children's psychologist, [Ms BB], and
10.3. Upon receipt of the information referred to in Order 10.1, the father is to authorise [Ms BB] to communicate with the mother's psychologist in relation to the children.
11. In the event that the mother provides the father with:
11.1. A written report from a psychologist that confirms:
11.1.1. That the mother has engaged with that psychologist for the purposes of improving the mother's parenting skills for a period of at least 6 months;
11.1.2. That the psychologist has received and considered the documents referred to in Order 8, and
11.1.3. That the mother has demonstrated insight and change in relation to her interactions with the children, including improvement in her capacity to contain her emotions and to manage the children's behaviour during contact visits;
AND
11.2. A written report from a separate psychologist or psychiatrist that confirms:
11.2.1. That the mother has engaged with that psychologist/psychiatrist for the “purposes of monitoring the mother's mental health for a period of at least 6 months;
11.2.2. That the psychologist/psychiatrist has received and considered the documents referred to in Order 9;
11.2.3. That the mother has demonstrated insight into her psychiatric history and the impact of her mental illness on her parenting capacity;
11.2.4. That the mother has complied with all recommendations for treatment, including attendance at therapy and taking prescribed medication (if any), and
11.2.5. That the mother's mental state has been stable during the period of treatment,
THEN
[11.3.] The parties are to attend upon a Family Dispute Resolution practitioner for the purposes of attempting to reach agreement in relation to alternative arrangements for the children to spend time with the mother, including a transition to unsupervised time; and
[11.4.] In the event that agreement cannot be reached, the mother may file an Application to vary the existing Orders.
12. The mother shall pay to Legal Aid NSW the sum of $14,903.70 within 30 days of the date of these orders in full and final payment of her liability for the costs of the Independent Children's Lawyer.
13. The father shall pay to Legal Aid NSW the sum of $13,253.70 within 30 days of the date of these orders in full and final payment of his liability for the costs of the Independent Children's Lawyer.
NOTATION:
14. The court notes that the father has already paid $1,650.00 towards the costs of the Independent Children's Lawyer.

Evidence

At the hearing, the mother relied upon the following documents:
a)Her Affidavit filed on 19 February 2018;
b)Affidavit of Ms G filed on 19 February 2018;
c)Affidavit of Mr H filed on 19 February 2018; and
d)Affidavit of Associate Professor J filed on 14 March 2018.
The father relied upon the following documents:
a)His Affidavit filed on 19 February 2018;
b)His Affidavit filed on 22 May 2018;
c)Affidavit of Mr PP Nardini filed on 16 February 2018;
d)Affidavit of Mr QQ Nardini filed on 16 February 2018;
e)Affidavit of Ms O filed on 16 February 2018;
f)Affidavit of Mr RR filed on 16 February 2018;
g)Affidavit of Dr SS filed on 16 February 2018; and
h)Affidavit of Ms BB filed on 15 February 2018.
The paternal grandfather, Mr PP Nardini, was unable to attend Court for the purpose of being cross examined, as a result of a number of medical conditions that he has. Having received evidence from Dr SS, his treating General Practitioner, I indicated that I would read the paternal grandfather’s Affidavit, without the need for him to be cross-examined. However, in those circumstances, I have not, in this decision, referred to that Affidavit or relied upon its contents in making findings set out in these Reasons for Judgment.

The law – concepts and principles

The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B(1) sets out the objects of Part VII, which 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.
More generally, the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)), and to protect them from family violence (s 43(1)(ca)).

The presumption of equal shared parental responsibility

Section 61DA of the Act relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In Dundas & Blake (2013) FLC 93-552 at 87,409, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until the Court is satisfied that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) FLC 93-099 at 88,940, the Full Court said:
In our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
At the same time, it needs to be appreciated that ss 65DAC(2) and (3) of the Act provide that, in the event of an order being made for parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons. …
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.

For reasons which I set out below, I am concerned that the mother has not adequately acknowledged or addressed her mental health concerns. That issue has, in turn, impacted upon the parties’ capacity to effectively communicate in terms of the requirements ss 65DAC(2) and 65DAC(3) of the Act. In those circumstances, I find that it would not be in the best interests of the children for the parties to have equal shared parental responsibility.
As an order for equal shared parental responsibility will not be made, the pathway set out in s 65DAA of the Act does not apply and the task before the Court is to make parenting orders that it considers to be in the best interests of the child. This does not necessarily involve an application of the presumption that the children should spend equal or substantial and significant time with each of the parties.
In her amended proposed minute of order, the mother sought an order that she be kept informed of matters concerning the children’s education and health. While the father will have sole parental responsibility for the children, the mother will continue to play an important role in the children’s lives and it is appropriate that she receives such information. I will make those orders.

Credit of witnesses

In Adamson & Adamson (2014) FLC 93-622 at 79,703, the Full Court, agreeing with the decision of Kent J in Carlson & Fluvium [2012] FamCA 32, said:
It follows from [the observations of Kent J] that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to [by Kent J].
While recognising the sound principle adumbrated in those authorities, in these proceedings, the credibility of the respective parties is in issue, as is the credibility of the maternal grandmother and the maternal step-grandfather, who gave evidence in support of the mother’s case.
In Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73] to [74], Tugendhat J referred to the extra-judicial writings of Lord Bingham, where his Honour set out the “main tests” to be used by a Judge to determine a witness’ credibility, as follows:
(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness’s evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness.
In this decision, I have focused on the first three of those tests in assessing the credibility of the witnesses in respect to several incidents where there is a different account provided by the father, on the one hand, and the mother and the maternal grandparents, on the other.
For reasons which I set out, I have not accepted the evidence of the mother or the maternal grandparents in respect to those incidents, which I will identify, where it differs from the evidence of the father.

Primary considerations

Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b).

Meaningful relationship

As stated, s 60CC(2)(a) requires me to consider the importance of the children having a meaningful relationship with each of the parties. On the other hand, I must consider the issue of the risk associated with the children possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In Sigley v Evor (2011) 44 Fam LR 439, the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
In McCall & Clark (2009) FLC 93-405 at [122], the Full Court said:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
In Fitton & Kimble [2017] FCWA 106 at [36], Walters J said:
The Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship.
In that decision, his Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster (2014) FLC 93-598 at [123], where the Court noted that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
Similarly, in Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J qualified the desirability of a child maintaining a meaningful relationship with both of their parents in the following terms:
… that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
There is no dispute between the parties that the children would benefit from having a meaningful relationship with both of the parties. The mother’s amended application is for the parties to have equal shared parental responsibility and, after a period of supervision of the children’s time with her, equal time with the children. The father similarly acknowledges that it is important for the children to have a meaningful relationship with the mother and to spend time with her. The father agrees that, subject to the mother’s recovery from certain mental health issues, the children’s time with her should eventually be unsupervised.

Protection from harm

The issue of risk of the children facing physical or psychological harm in the mother’s care is the central issue in these proceedings. In B & B (1993) FLC 92-357, the Full Court said that the task before the Court is essentially to achieve a balance between the risk of detriment to the children from abuse, and the possibility of benefit to the children from parental access. However, it is clear from s 60CC(2A) of the Act that greater weight is to be given to the primary consideration set out in s 60CC(2)(b), that is, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” over the benefit of maintaining meaningful relationships. Specifically, it is necessary to determine whether the risk of harm to the children, in having access to a parent, outweighs the possible benefits to them from having that access.
The central issue in these proceedings is the issue of risk in terms of s 60CC(2)(b) of the Act. On the basis of evidence which I set out below, I am of the view that the children are currently at such risk in the unsupervised care of the mother.

The mother’s volatile and erratic behaviour

The events are set out below satisfy me that, in the period subsequent to April 2015, the mother has suffered acute mental health episodes. On several occasions, the children were present and witnessed the mother’s conduct. Set out below are the more significant incidents, in that regard. In so doing I will refer to those instances where the mother contends that the events which occurred and specifically, her reactions to those events, were due to family violence perpetrated against her by the father.

Cosmetic dental treatment in April 2015

The parties agree that the mother’s mental health began to deteriorate after she underwent a procedure to have porcelain veneers placed on her teeth in April 2015. As previously discussed, the father says that the mother was very upset with her appearance following that procedure. The mother says that she was initially pleased with the result of the procedure, but that the father mocked her and made “continuous derogatory comments” about her teeth, which led her to become concerned by her appearance.
Specifically, the mother asserts that, after seeing the results of that procedure, the father said to her: “They look disgusting. They look like dentures”. The mother asserts that the father repeatedly told her how horrible her teeth looked, that she should sue the dentist who had performed the procedure and that she should have further dental work done to rectify her appearance. The mother asserts that the father subsequently pressured her into undergoing further dental procedures, which she did not want to have.
However, in responding to a question from the ICL, the mother was unable to repeat the “derogatory comments” made by the father, save insofar as she stated:
When I left the dentist, I looked in the mirror straightaway when I went to the bathroom after the dentist. I looked and I loved it. My mum came. I showed her. She said it looks beautiful. But when [the father] came home and I showed him he said, “Yuck. They look like dentures,” and that was it, and then I said to him, “What exactly? Can you tell me more? What don’t you like?” He goes, “They just look like dentures”.
The father, who gave his evidence in a direct and forthright manner, denied making any such statement to the mother.
When asked by the ICL as to whether the father told her that she looked “ugly” the mother stated: “Yes. He influenced my – yes, he said they’re not done properly”.
In his notes dated 6 May 2015, Dr TT, a Dentist engaged to replace the veneers on the mother’s teeth, records that the mother described the veneers as “faulty” and stated that her bite felt different to how it had prior to the procedure. Dr TT further notes:
She feels they are very unnatural. Patient is quite emotional about result. [The father] has come in with her support.
Dr TT did not record the mother as stating that she was unhappy about the appearance of her teeth because of derogatory comments made by the father. When asked to clarify her recollection of her comments to Dr TT as against her evidence regarding the father’s alleged derogatory comments, the mother’s evidence was as follows:
Question: In relation to the things that he has recorded you said or felt, you would say that that’s entirely because [the father] told you that the veneers were ugly or that your teeth were ugly; is that right?
Answer: Some of it, but the way they felt, the bite – it felt, yes, different and it would have been there – yes.
That statement that the father’s alleged comments had caused “some of” the mother’s discontent with her teeth falls a long way short of the mother’s assertion that those alleged comments caused her to dislike her appearance to such an extent that her mental health began to fail and she suffered a “breakdown”.
It is of further significance that, in a consultation with Dr CC on 29 May 2015, the mother reported that she had been distressed for a few weeks as a result of that dental work, rather than as a result of the father telling her that her teeth were ugly. That omission is significant in circumstances where the mother was consulting Dr CC in respect to mental health concerns.
Further, in response to a question from the ICL, to clarify her evidence that the father “constantly denigrated her”, the mother stated: “… it was not about the teeth. It was about the look”. The mother further stated that the father “did not concentrate on the teeth, because he knew it was a sensitive subject”. That evidence directly contradicts the mother’s initial assertions that the father made derogatory comments in respect to the appearance of her teeth.
The mother’s responses to those questions from the ICL, in the context of the other evidence to which I have referred, satisfies me that the accusation set out in paragraph 23 of her Affidavit that the father made “continuous derogatory comments” to her about her teeth is without substance. The mother’s evidence, in that respect, is particularly significant because the mother alleges that the father’s comments triggered a mental “breakdown”, which commenced in April 2015 and lasted through to September 2016.
In light of the inconsistencies in the mother’s evidence, to which I have referred, I prefer the evidence of the father that he did not make derogatory comments to the mother regarding her appearance, which gave rise to the mental health difficulties that she has experienced in the period since April 2015.

Allegations of repeated derogatory taunts and physical violence in June 2015

At paragraph 29 of her Affidavit, the mother asserts that the father was verbally abusive towards her during a trip to Europe in June 2015. The mother asserts that the father frequently called her “stupid” in front of the paternal grandfather, who was travelling with them. The mother appears to infer that B was also exposed to that behaviour, as she began to use similar language towards the mother, including frequently calling her “stupid”. The mother alleges that the father encouraged that behaviour on B’s part and required the mother to sit in the back seat of the car, whilst B sat next to him in the front passenger seat. The father denied that either he or B called the mother names during that trip to Europe or at all.
At paragraph 31 of her Affidavit, the mother made general allegations that, after the parties returned home from their trip to Europe, the father started hitting her in front of the children, as follows:
After we had returned home from [Europe], [B] appeared to be under the [father’s] influence. He would tell her to say to me: "Call her stupid" and "Call her a fucking bitch". He also started hitting me in front of the children. This occurred on numerous occasions. On those occasions when he called me "stupid" I would respond by calling him "stupid". He would swear at me and pull me by my hair and push me to the floor. He would then kick me while I was trying to defend myself. [C] would often say: "Stop Daddy, stop Daddy". I became very depressed and stressed at this time. The [father] told my mother that he wanted to take the children away with him and leave me. The [father] wanted to admit me to a mental clinic or hospital, however I refused to go as I did not believe it would help me with my depression. I started taking anti-depressants however I did not experience any improvement with my symptoms of depression. Prior to this time, I had never suffered from depression or anxiety, taken anti-depressants, or was ever required to consult with a psychiatrist or psychologist.
On the second day of the hearing, the mother was provided with the opportunity to give greater specificity and detail regarding those general allegations. Her evidence, in that respect, was unsatisfactory. Specifically, the mother was requested to provide the chronological sequence of the incidents of family violence that she alleged had occurred, but was unable to do so. While the mother initially agreed that she was providing evidence relating to those events in chronological order, she subsequently stated that her evidence was not in chronological order. The mother’s evidence regarding the nature of those incidents was also unsatisfactorily imprecise.
In the context of that unsatisfactory evidence, it is of some significance that, in July 2015, upon returning from Europe, the mother consulted Dr CC regarding matters including her feelings of anxiety. The mother admitted that she did not report to Dr CC the acts of violence that she alleges the father perpetrated against her around that time in her Affidavit, nor did she make complaints that the father had otherwise been violent or disparaging towards her.
Further, the maternal grandmother gave oral evidence to the effect that, in the period subsequent to the parties’ return from Europe, she was seeing the mother on a daily basis. The maternal grandmother’s evidence was to the effect that the mother regretted going to Europe because she was not treated well and was not happy. However, the maternal grandmother did not provide any evidence of having been informed by the mother that she had been the subject of physical violence by the father, nor did the maternal grandmother report observation of any bruising or injuries being suffered by the mother.
It is also of significance that the maternal grandmother supported the actions of the father in having the mother admitted for psychiatric care in August 2015, stating that she thought “he was doing his best and acting appropriately in the circumstances”. That view is inconsistent with the maternal grandmother allegedly having been advised by the mother that the father had been physically violence and disparaging to her between June and August 2015.
Accordingly, in circumstances where the mother’s evidence was unsatisfactorily inconsistent and imprecise and where it could reasonably be expected that the mother would report concerns about the father’s conduct if it had occurred, to her mother and to her General Practitioner, I do not attach any weight to the mother’s evidence as to alleged acts of violence on the part of the father.

Police intervention at a private clinic in August 2015

In August 2015, the police were called to attend a plastic surgery clinic in response to a complaint made by the clinic’s staff concerning the mother’s conduct. The police record having been advised of the following by the staff at the clinic:
The [mother] entered the location at about 12:30pm requesting to see a doctor. The staff at the location told the [mother] she could not see the doctor due to her being over an hour late to her appointment. The [mother] became agitated because she could not be seen by the doctor. The staff informed the [mother] she could arrange for another appointment however could no longer be seen by a doctor and was asked to leave. The [mother] began opening several doors at the premises which lead into the doctor’s room where patients were being examined at the time. The [mother] became quite aggressive and continued to refuse to leave the premises. As a result police were contacted. About 12:50pm Police attended the location. Police spoke to the staff who informed police they wished for Police to remove the [mother]. Police spoke to the [mother] before obtaining her details. Check conducted checks with nothing outstanding. The [mother] was given an Official move on direction from the premises and [Suburb UU] for cause fear/alarm, before shortly leaving.

At the time of Dr E's report, both children expressed a preference to maintain the current arrangement, whereby they live with the father and spend supervised time with the mother. However, Dr E considered that those views should be given limited weight, in light of the children’s “maturity level and limited understanding of complex issues related to the mother's mental health and family dynamics”. Dr E also considered that the children's views had been “influenced by their communication with their father”.
Dr E's report identifies views expressed by both children in the following passages:
[B] enjoyed living with her Dad and visiting her [paternal grandfather] ... They saw their mother every fortnight with the supervisor. When asked if she wanted this to change, [B] told me that she did not, “because I like it how it is. And I still want to see my Mum but I still want to live with my Dad”.
… When asked how she would feel without a supervisor, [B] assertively responded, “I want the supervisor there because the supervisor protects us ... I think we should have the supervisor there all the time”
… [B] felt scared when she was on her way to visit her Mum. She felt both worried and excited at the same time. She told me that she missed her Mum a lot but didn't want to see her more. She said that she would be scared if she went on a sleepover with her Mum, “because she always makes me feel scared when I'm around her”…
… When asked if [C] misses [the mother], he responded, "No. A tiny, tiny, little bit. I most like my Dad. I want to live with Daddy more. Mummy says she's not sick but she is. She wants us to live with her and she gives us presents. But she's sick”.
… When asked about the possibility of seeing her mother more, B responded, “No. I just want it to stay the same. No changes. I don't want to see [the maternal] grandmother. Maybe every second week, on the same week, maybe at the same time as my mother”.
The father asserts that, on 17 September 2015, he received an email from Ms BC, B’s school counsellor, in which Ms BC wrote:
… B talked about being sad, scared and worried about mum. She is very hopeful that mum will be better when she comes out of the hospital.
B talked about the love and security she has felt with your care. At the moment she is feeling a sense of uncertainty but with reassurance from yourself and family she is managing with this. [L School] is very important for B as it is providing routine and support for her.
The father further asserts that, on 2 December 2015, he received an email from Ms BC, which included the following:
[B] has talked about the move to [the Suburb U property]. She said that she feels safe but is missing her mum ... her worries have diminished since the move.
The children are currently aged 10 and six years. While they are not decisive, I am satisfied that it is appropriate to give some weight to the children’s views. I am satisfied that both of the children want to continue seeing their mother, but have some apprehension in regards to that time. I am satisfied that B currently wishes for a supervisor to be present at those times that she spends in the care of the mother.

The nature of the relationship of the children with each of their parents and other persons

Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the child with each of their parents and other persons, including any grandparent or other relative.
Dr E observed the children to have a “loving bond” with the father. I accept that to be the case.
I am satisfied that the children have observed the mother experiencing acute mental health episodes and that this has impacted upon the nature of their relationships with her. Those relationships have also been impacted by periods of separation from the mother.
The contact reports produced by F Group indicate that the children, and in particular C, often display challenging behaviours and emotionality during contact visits. It is unclear whether this is a reflection of difficulties in their relationship with the mother or other factors.
In his report, Dr E notes that: “On her arrival, the mother gave [the children] “a big hug!”. Both children were observed to be uncomfortable in this interaction”.
The report of Ms BB dated 12 February 2018 provides similar evidence in relation to the nature of the children’s relationships with the parties. Ms BB records that C said to her: “I miss Daddy when I go to school” and that, when asked about missing the mother, C replied: “I don’t remember”. Ms BB states that B was “vocal about her relationship with each parent and appeared eager to discuss the topic”. In that regard, Ms BB records the following:
a)B was “sometimes scared at her mother’s house” and recalled that: “Mum went crazy, she got out the window in handcuffs – she still acts very, very crazy”;
b)B felt scared when the mother attended L School and stated that the mother is not allowed to attend L School, as a supervisor must be present;
c)B feels anxious about some of the questions that the mother asks her, including where she lives. She stated that she was scared to tell the mother where she lived because “She’d come to my house and she might do something to us”;
d)B is annoyed by some of the things her mother does and says, including asking her whether she wants to live with her and acting “weird” and “funny”; and
e)B did not feel safe after C saw the mother at a local shopping centre.
On 5 March 2017, at the commencement of a supervised visit between the mother and the children, the father spoke with the supervisor, Ms CD of F Group, as the mother had previously asked the children questions which made them uncomfortable. Ms CD gave B a code word, “bananas”, which she could use if she felt worried.
I accept that the children love the mother. However, the nature of their relationships with her been impacted by their observations of her experiencing acute mental health episodes. The children’s relationships with mother have also been adversely impacted by some of events that occurred during the course of the children spending supervised time with her, which I discuss in greater detail below.
The mother contends that the father has embarked upon a deliberate course of action to isolate her from the children, by removing them from her care and permitting her to spend only limited with them. She also contends that the father has sought to influence the children to feel negatively towards her and denigrated her to and in the presence of the children to such an extent that this has been copied by the children.
As an example of that, the mother asserts that on Mother’s Day 2016, the parties and the children spent two hours at a cafe in Suburb UU. The father ignored the mother. The children were happy, warm and affectionate towards the mother and gave her a bunch of flowers. The mother says that, from that time, the father would bring the children to the former matrimonial home each fortnight for them to spend an hour with her. The mother asserts that the father dictated when and how those meetings occurred and that he would not allow the children to hug her.
There is no specific or objective evidence of the father making statements or engaging in conduct to alienate the children from the mother. If such conduct has occurred, it appears to have been unsuccessful. The maternal step-grandfather asserts that he was in attendance at several supervised visits between the mother and the children between mid-2017 and early-2018, during which he observed the children to share a close and loving relationship with the mother. He asserts that the children were openly affectionate towards her, as well as himself and the maternal grandmother.
In terms of other relationships, the children also appear to have a close relationship with the father’s partner, Ms O, who regularly assists the father in caring for the children. I accept that to be the case.
The father asserts that the children also enjoy and close and loving relationship with his extended family and I accept that to be the case. The children regularly visit the paternal grandfather and, following the parties’ separation, the father and the children resided with him for a period.
The parties and the children lived in close proximity to the maternal grandparents prior to the parties’ separation. I accept that the children had a close and loving relationship with the maternal grandparents up until that time. The nature of the children’s relationship with the maternal grandparents in the period following the parties’ separation is difficult to assess, however, the maternal grandparents assert that they have a close and loving relationship with the children. On balance, I accept that to be the case.
On 5 February 2017, during a supervised visit with the children, the mother recorded the children in a video message for the maternal grandparents, in which they said: “Please come back. Why have you left us? We miss you. Mama can we go to our grandparents’ house?” In circumstances where that video was made during the course of this litigation, which includes a dispute regarding the capacity of the maternal grandparents to supervise the children’s time with the mother, I consider that it was inappropriate for the mother to make that video.
On 20 June 2017, at the family report interviews, the maternal grandmother says that the children were “overjoyed” to see her and the maternal step-grandfather and that they showered them with affection. The maternal grandmother asserts that the children have behaved in a similar manner towards them and the mother since interim orders were made on 25 July 2017 for the children to spend time with them.

The maturity, sex, lifestyle and background of the children and either of their parents

Section 60CC(3)(g) requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
The father is of European heritage and was born in Australia.
The mother is of European heritage and was born in Europe
As noted above, Dr E expressed the view that the children “had experienced psychological harm due to [the mother's] erratic and volatile behaviour when unwell” and that they “had been exposed to violent and disturbing interactions during this period, which had been detrimental to their emotional stability”. At the time of writing his report, Dr E identified both children as being “insecure in the context of their exposure to parental conflict, family violence, separation and loss”. The contact reports for the children’s time with the mother similarly suggest that the children are continuing to experience difficulties in relation to their behaviour and emotional volatility.
In November 2015, the father asserts that, while he was out with the children and some friends, B ran off saying: “I am going to kill myself”. The father arranged for B to see her school counsellor after this event.
In her Memorandum, Ms D records the following:
[B] said that "scary stuff' has happened, including her mother grabbing her by the wrist to prevent her going with her father, jumping out a window and being handcuffed by police. [B] said that she often heard her parents fighting before they separated. She did not indicate that she has witnessed any physical violence between her parents. [B] said that, now, her parents do not talk about each other.
Ms BB describes C as “an active, bright boy” and records that he “liked school and had lots of friends”.
The evidence presented in this matter is not sufficient for me to determine the extent to which challenging behaviours demonstrated by the children are the result of events they have experienced, including instances where the mother has behaved in an erratic and volatile manner. Irrespective of its cause, it is clear that both parents will require assistance in developing their parenting skills to assist the children to overcome instances where they have stated they are distressed and have engaged in challenging behaviour.

The culture of the children if they are Aboriginal or Torres Strait Islander

Section 60CC(3)(h) requires the Court to consider issues pertaining to the culture of the child if the child is Aboriginal or Torres Strait Islander.
This factor is not a relevant consideration in this matter.

Issues relating to the parents

Long term decision making, time and communication

Section 60CC(3)(c) requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
It is accepted that, until the parties’ separation, the mother was the primary carer for the children. The maternal grandmother describes the mother as a caring and dedicated parent, who cooked for, bathed and entertained the children. I accept that to be the case. It is clear, however, that in the period subsequent to April 2015, the mother’s capacity to engage with the children was impacted upon by her mental illness.
The father has been the primary carer for the children since the parties’ separation. He has made all necessary decisions for them and their care during that time. The father asserts that he continues to involve the mother in decisions regarding the children's long term care, welfare and development. For example, the parties agreed in email correspondence on 28 January 2018 as to the future schooling arrangements for the children.
The mother has spent regular supervised time with the children since orders for the same were made on 16 November 2016.
I accept that the mother would take any opportunity available to her to spend time, communicate with and make decisions regarding the children, if orders permitted that to occur.

The parents’ obligations to maintain the children

Section 60CC(3)(ca) requires the Court to consider 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 has been financially responsible for the children since the parties’ separation.

The capacity of each of the parents and attitude to parental responsibility

Section 60CC(3)(f) requires the Court to consider the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs. Section 60CC(3)(i) requires the Court to consider the attitude to the child, and parental responsibilities, by each of the child’s parents. These considerations overlap and will be considered together.
Dr E was of the view that the father had demonstrated “adequate capacity” to meet the children’s needs. I accept that to be the case.
In terms of the issue of parental responsibility, I have identified incidents when the father has acted in a coercive and controlling manner by locking the mother out of the house on several occasions. I note that the father explained his conduct as an endeavour to protect the children from witnessing the mother’s volatile conduct. The act of forcibly removing the mother from the house can reasonably be inferred to have itself caused distress to the children. While it is not possible to determine whether this reduced the overall distress that could have been caused to the children by those incidents, as a result of them otherwise witnessing the mother’s behaviour, I accept the evidence of Dr E that there were more appropriate means of dealing with a person suffering a severe mental health episode.
For reasons that I have earlier set out, I am satisfied that, the mother has failed to act responsibly in not recognising the extent of her mental illness and in failing to recognise her need for ongoing psychiatric treatment. I have set out why the mother’s lack of insight in respect to those matters presents a risk to the children. There are also certain concerns regarding the mother’s capacity to appropriately parent the children.
In Dr E’s report, he recommended that the mother would benefit from psychological and parenting intervention focused on parenting after separation and the provision of appropriate boundaries for the children. The mother acknowledged that, as at the date of the hearing, she had “not done anything yet” in respect to that recommendation. The mother’s failure to do so is regrettable.
In terms of the mother’s parenting capacity, Dr E stated the following:
The mother's parenting capacity had previously been impaired in the context of her mental illness. This has received various labels from numerous experienced psychiatrists, in the context of both inpatient and outpatient treatment. This had been exacerbated by the parental conflict and breakdown in the marital relationship, her alleged exposure to family violence and a period of excessive drinking behaviour. Most recently, she had been treated for a Major Depressive Disorder with psychotic features by Professor J. She had responded well to treatment and had achieved remission. Under the current circumstances, she was not identified to have impairment of her parenting capacity related to her mental health. That said, her psychiatric history over the past two years which identified treatment resistance and poor adherence to treatment raises questions with regard to her prognosis. Subsequent to her treating psychiatrist's clean bill of health she has continued to act in a problematic fashion during contact visits as identified in the [F Group] reports.
Dr E further noted that the contact reports he reviewed at the time of drafting his report “identify persistent emotional volatility during the contact visits” and were “indicative of a persistent impairment of [the mother's] capacity to consider the children's experience when distressed”. The contact reports that have been provided since the release of Dr E’s report similarly describe this as an ongoing concern.

Effect of change

Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
The children experienced significant change and disruption around the time of the parties’ separation. The father asserts that the mother's proposal that the children live with her would involve further significant change and associated risks. The father asserts that the children, on all accounts, are doing well in his primary care.
Relevantly, in his report, Dr E opined that:
Both children would experience a sense of loss and distress should they now be separated from their father. They are already sensitised to the experience of separation and loss, given their developmental experience. Should their relationship with their father also be severed, they will be particularly vulnerable to future emotional and behavioural dysregulation.
Dr E recommended a gradual transition to unsupervised time between the children and the mother, subject to the mother demonstrating that she is able to contain her emotions, cease questioning of the children regarding the father and Ms O, implement boundaries for the children and limit the amount of presents she gives the children during contact visits. I accept the merit of that recommendation.

Practical difficulty of implementation

Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

If the children’s time with the mother continues to be professionally supervised, the issue of the length of those visits and their cost will be relevant. The supervision of that time by a professional service necessarily limits the duration of the period that the children can spend with the mother and the nature of how that time is spent.
Nevertheless, in circumstances where, for reasons that I have set out, I am satisfied that the maternal grandparents’ are not appropriate supervisors and no alternate supervisors have been proffered, I find that F Group should continue to supervise the time that the children spend with the mother, until such time as another supervisor can be agreed to by the parties or that time becomes unsupervised.

Avoiding further proceedings

Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
In the circumstances of this case, I have concerns regarding the making of orders providing for an automatic transition from the children spending supervised to unsupervised time with the mother. For reasons I have set out above, I favour the orders proposed by the ICL, which provide for the possibility of future agreement between the parties or Court approval for that to occur. This may lead to the institution of future proceedings, if the parties are unable to agree on arrangements for the children’s time with the mother to transition to being unsupervised. Nevertheless, in the circumstances of this case, I am of the view that the possibility of further proceedings is justified, having regard to the children’s best interests.
This consideration is also relevant to the question of whether orders should be made permitting the children to travel overseas, as sought by the father. It is relevant that the children have had had the opportunity to engage in overseas travel to date and it can be expected that they will have that opportunity in the future. Pursuant to the orders that I will make, the children will live with the father. Failure to provide for the father to travel overseas with the children has the potential to result in further litigation as a result of the need for the father to commence proceedings seeking specific orders permitting that to occur. I do not consider there is a risk of the father retaining the children overseas and as such, I will make orders for overseas travel, as sought by him.

Other relevant matters

Section 60CC(3)(m) requires the Court to consider any other facts or circumstances the Court considers relevant.
The parents are engaged in continuing litigation in respect to achieving a just and equitable distribution of matrimonial property. The parties’ ongoing access to legal advice in relation to those proceedings will allow them the opportunity to consult their legal representatives in respect to the mother’s ongoing recovery from her mental health challenges and the method by which the children should transition to spending unsupervised time with her.

Costs

The ICL has sought and order for the parties to pay her costs. I propose to consider the issue of costs after the parties have had the opportunity to consider these Reasons for Judgment. Accordingly, I will give the parties and the ICL liberty to apply in the event that they wish to seek an order for costs.

Conclusion

For all of these reasons, I make the orders as set out at the commencement of these Reasons for Judgment. By way of summary, those orders are essentially based on the proposals of the ICL, but with the timeframe for the supervision of the children’s time with the mother extended by six months to a minimum requirement of 12 months. The orders will also reflect what appeared to be a consensus position in respect to special days. For reasons set out in this decision, I have also made certain other supplementary orders.

I certify that the preceding three-hundred and fifty-nine (359) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 31 January 2019.

Associate:

Date: 31 January 2019

[2019] FamCA 37

31 January 2019

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Injunction

Costs

Procedural Fairness

Remedies