Newstead and Burns - [2016] FamCA 850

FAMILY COURT OF AUSTRALIA

NEWSTEAD & BURNS

[2016] FamCA 850

FAMILY LAW – CHILDREN – Spend time – limited issue as to whether the father’s time with the children should commence on a Thursday or Friday and whether he should have an additional night with the children each alternate week – changeovers and school holidays – detailed orders also sought by the mother in relation to the father’s use of social media, communication between the parties, the father’s attendance at the children’s school, – previous orders made that the children live with the mother and that the mother have sole parental responsibility – finding that the mother was subjected to family violence and the children have been exposed to that violence – where the father shows little insight into the effect of his behaviour upon the mother and the children – where the father has demonstrated a lack of boundaries in his behaviour –final orders made that the father’s time with the children commence on a Thursday night rather than a Friday – no orders made for the father to have an additional night with the children in the alternate week

Family Law Act 1975 (Cth)

Harridge and Anor & Harridge and Anor [2010] FamCA 445
Poisat & Poisat [2014] FamCAFC 128; (2014) FLC 93-597

APPLICANT:

Mr Newstead

RESPONDENT:

Ms Burns

INDEPENDENT CHILDREN’S LAWYER:

Macgregor Solicitors

FILE NUMBER:

MLC

2219

2012

DATE DELIVERED:

29 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

15 - 19 February 2016 and 14 & 15 April 2016

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Swart

SOLICITOR FOR THE RESPONDENT:

Moores Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Macgregor Solicitors

ORDERS

IT IS ORDERED THAT

Paragraph 4 of the orders made 17 February 2016 and paragraph 1 of the orders made 15 April 2016 be discharged.
The children B born … 2009 and C born … 2010 spend time with the father as follows:
(a)from the conclusion of school on Thursday 6 October 2016 until the commencement of school on Monday 10 October 2016 (or if Thursday or Monday is a non-school attendance day, from the conclusion of school on the last school attendance day of the week to the commencement of school on the next school attendance day) and each alternate weekend thereafter;
(b)in the summer school holidays in 2016/2017 for 5 nights per fortnight commencing at the conclusion of school on 14 December 2016 until 5.00 pm on Monday 19 December 2016, and in each fortnight thereafter, and to conclude in the event that it is the children’s time with the father at 5.00 pm on the day prior to the resumption of school;
(c)for half of the summer school holidays:
(i)in 2017/2018 for 14 nights commencing on the last day of the school year and concluding at 5.00 pm on the last day of that period and for the first half of the balance of the holidays then remaining after the children have spent 14 nights with the mother from 5.00 pm on the last day of the children’s time with the mother until 5.00 pm on the midpoint of the balance then remaining;
(ii)in 2018/2019 and each alternate year thereafter for the first half of the school holidays from the conclusion of school on the last day of the school year until 5.00 pm on the day being the midpoint of the holidays;
(iii)in 2019/2020 and each alternate year thereafter for the second half of the school holidays commencing at 5.00 pm on the day that is the midpoint of the holidays until 5.00 pm on the day prior to the resumption of school;
(d)for half of all school term holidays commencing in the Term 1 school holidays in 2017 at times to be agreed in writing between the parties and in the absence of agreement:
(i)in 2017 and each alternate year thereafter for the second half of the school holidays commencing at 5.00 pm on the day that is the midpoint of the school term holidays and concluding at 5.00 pm on the day prior to the resumption of school;
(ii)in 2018 and each alternate year thereafter for the first half of the school holidays commencing at the conclusion of school until 5.00 pm on the day being the midpoint of the school term holidays;
(e)on the Father's Day weekend from 5.00 pm on the Saturday preceding Father's Day until 5.00 pm on Father's Day;
(f)from 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day in 2016 and each alternate year thereafter;
(g)from 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2017 and each alternate year thereafter;
(h)provided the father advises the mother by 31 January each year, on one D Club Family Day weekend for up to 24 hours from 4.00 pm on Saturday until 4.00 pm on Sunday;
(i)at Easter from the conclusion of school (or 3.00 pm) on the Thursday before Good Friday until 5.00 pm on Easter Saturday in 2018 and each alternate year thereafter and from 5.00 pm on Easter Saturday until 5.00 pm on Easter Monday in 2017 and each alternate year thereafter. In the event that Easter time falls within the school holiday period, four days will be deducted from the total days of holidays for the purposes of calculating half of the school holiday period;
(j)in the event the D Club are playing in the AFL Grand Final, from 10.00 am on the AFL Grand Final public holiday Friday (or from the conclusion of school on Friday if the Friday is not a public holiday) until 6:30 pm on the AFL Grand Final day;
(k)at such times as agreed between the parties in writing.
The father's time with the children be suspended:
(a)on the weekend of Mother's Day from 5.00 pm on the Saturday preceding Mother's Day;
(b)from 5.00pm on Christmas Day until 5.00 pm on Boxing Day in 2016 and each alternate year thereafter;
(c)from 5.00 pm on Christmas Eve until 5.00pm on Christmas Day in 2017 and each alternate year thereafter;
(d)at Easter from the conclusion of school (or 3.00 pm) on the Thursday before Good Friday until 5.00 pm on Easter Saturday in 2017 and each alternate year thereafter and from 5.00 pm on Easter Saturday until 5.00 pm on Easter Monday in 2018 and each alternate year thereafter;
(e)at such further or other times as agreed between the parties in writing.
In the event that either of the children’s birthdays occurs on a weekend the parent who does not have care of the children spend time with the children from either 10.00 am until 2.00 pm or 3.00 pm until 7.00 pm, such time to be as nominated by the mother.
Changeover shall occur as follows:
(a) until the end of 2018:
(i)at the children’s school or if a non-school day then at Contact Centre E or in the event that Contact Centre E is unable to accommodate the parties then at a supervised contact centre to be agreed upon by the father and the mother or by a private supervisor and at a location to be agreed upon and in default of agreement to be nominated by the mother;
(ii)in the event that the father spends time with the children pursuant to paragraph 2(j) hereof changeover shall occur in the car park of McDonald’s in Suburb I supervised by a private supervisor to be agreed upon by the father and the mother no later than 7 days prior to the day of the AFL Grand Final and in default of agreement to be nominated by the mother;
(iii)all costs of supervised changeovers are to be shared equally between the parties;
(iv)in the event that changeovers occurring on a non-school day cannot be supervised then contact shall be suspended;
(b)from the commencement of 2019 at the children’s school or if a non-school day then at a McDonald’s or like establishment to be nominated by the mother;
(c)the father be and is hereby restrained from permitting any other person to attend changeover of the children on his behalf save and except as agreed between the parties in writing;
(d)in the event that the father does not arrive to collect the children at the stated time and has not advised the mother before the stated time that he would be delayed, then the mother may after thirty minutes of the stated time leave the changeover venue with the children and that period of time with the father shall not take place.
(e)the designated mobile telephone referred to in paragraph 7 hereof shall be turned on at all times during contact times including for the period of 60 minutes before changeover.
Each parent facilitate telephone communication between the children with the other parent who does not have the care of the children when reasonably requested by either or both of the children.
Each parent provide to the other a mobile telephone contact number for the parent with the care of the children to communicate with the other parent only when the children are in their care and only in the case of emergency.
In the event times to be spent with the children need to be changed, or, in the case of school holiday contact, confirmed, or there is a need to communicate instructions in relation to medication the children may be required to take, the parents communicate by text message on the mobile telephone number they have been provided with by the other parent pursuant to paragraph 7 hereof.
In the event that either or both of the children are invited to a party or other special occasion at a time when the children are in the other parent's care, the parent forthwith upon receiving the invitation provide a copy or notice of it by text message to the other parent, to enable that party to respond to the invitation as they may choose.
The parents shall as soon as practicable notify the other of any serious illness or injury sustained by either or both of the children whilst in their care and provide any particulars of treatment received or required.
In the event that either or both of the children are hospitalised the father shall be permitted to visit the children in the hospital for up to two hours per day at times to be nominated by the mother and subject to the directions of the hospital and/or the children’s treating medical practitioners.
The father be and is hereby restrained from enrolling or committing the children to any extra-curricular activity without first obtaining the mother's consent in writing.
Each parent inform the other by text message if they intend to take the children outside of the State of Victoria during the period the children are in that parent's care such notification to be given not less than 72 hours prior to the children’s proposed departure from the State of Victoria .
Without admitting the necessity for same, the mother and father, their servants and agents be and are hereby restrained from abusing, insulting or otherwise denigrating the other parent or member of the other parent's family or friends in the presence or hearing of the children.
The father shall not for a period of 24 hours prior to or during his time with the children:
(a)       consume alcohol to excess; or
(b)       use or take any drug of addiction; or
(c)       misuse or abuse any drug whether prescribed or not;
and if the father reasonably appears to be intoxicated or otherwise under the influence of alcohol or drugs at the commencement of time, then time on that occasion shall be suspended.
In the event that the father participates in counselling with Ms H then he be responsible for the costs of such attendance.
The mother be at liberty to provide to Ms H and the children's school a copy of any orders made by the Family Court of Australia and/or reports produced for the purposes of these proceedings.
The mother authorise the children's school to provide to the father, at the father’s expense, all notices, school reports and school photographs.
The father be permitted to attend:
(a)two school events for each child per year with the mother to nominate three school events per child per year and the father to elect two events from those nominated by the mother;
(b)all school events of the children occurring during the time the children are in his care;
(c)parent teacher interviews with the mother and the father to arrange separate interviews for each of them to attend; and
(d)any other school events as may be agreed by the parties in writing.
The father be and is hereby restrained from causing the children to attend upon or be attended upon, assessed, reviewed or examined by any counsellor, therapist, psychologist or other specialist without the consent in writing of the mother.
The father forthwith remove any historical profile pictures and/or cover photos that include photographs of the children from his Facebook page.
The father be and is hereby restrained from publishing, printing, or otherwise disseminating images or photographs of the children, or references to the children or these court proceedings on social media, print media or any other electronic or publicly accessible devices/forums/platforms, including opening a Facebook page in the name of either or both of the children save and except that the father be permitted to post photographs of the children on his Facebook page subject to him maintaining the appropriate security settings limiting access to those photographs to his friends on Facebook.
The father be and is hereby restrained from sharing or disclosing any information, including any documents or correspondence, in relation to these court proceedings on social media, by email or any other means to any person who is not a party to or an expert witness in these proceedings, his legal representative or any medical or mental health practitioner upon whom he may be attending for treatment.
The appointment of the Independent Children’s Lawyer be discharged.
The Amended Initiating Application of the father filed 10 April 2015 and the Amended Response to Initiating Application of the mother filed 27 April 2015 be otherwise dismissed and the matter be removed from the list of pending cases awaiting hearing.

IT IS DIRECTED THAT

That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same.

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 Newstead & Burns 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 MELBOURNE

FILE NUMBER: MLC 2219 of 2012

Mr Newstead

Applicant

And

Ms Burns

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The father and mother in this case separated when the children of their relationship were very young, B born in 2009 was just over two years old and C born in 2010 was just over one year old. Notwithstanding that final parenting orders were made by consent in the Federal Circuit Court of Australia on 16 April 2013, these children have been the subject of ongoing litigation for a significant part of their young lives. Significantly there was a notation to those orders to the effect that the mother had made serious allegations of domestic violence against her by the father which were denied by the father but that despite those concerns the mother was hopeful that the orders would finalise the children’s matter and avoid any further issue between the parties or the need for any further litigation. That has clearly and unfortunately not been the case.
The genesis of the proceedings before me was the father’s Initiating Application which he filed in the Federal Circuit Court of Australia on 22 October 2013, a matter of six months after the final orders had been made.
Although by the time the matter came on for final hearing before me the issues were much more limited, they encompassed a myriad of allegations both in relation to the history of the relationship prior to and post separation and a history of extensive litigation.

Background

The father Mr Newstead was born in 1968 and is 48 years of age. He is employed as a public servant.
The mother Ms Burns was born in 1975 and is 41 years of age. She is employed works in hospitality.
The parties commenced cohabitation in September 2008, separating in September 2011.
The children live with the mother and pursuant to my orders made 17 February 2016 the children presently spend time with the father as follows:
·during school terms, each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday (or if Friday or Monday is a non-school attendance day, from the conclusion of school on the last school attendance day of the week to the commencement of school on the next school attendance day) and such alternate weekends continuing throughout the year on the same alternate fortnight rotation; and
·such further or other times as agreed in writing by text message between the parties.

History of Proceedings

Although I do not propose to set out each and every hearing as they are numerous, it is in my view necessary in this case to have some understanding of the history of the proceedings. On 8 December 2011, some two months after the parties separated, the mother applied for an Intervention Order in the Magistrates’ Court at Suburb F and on 13 March 2012 an order was made by consent without admissions to have effect until 12 March 2013.
On 14 March 2012, the day after that Intervention Order was made the father filed an Initiating Application in the Federal Circuit Court of Australia. On 16 May 2012 the mother filed a Response to Initiating Application and as previously referred to on 16 April 2013 the Federal Circuit Court made final parenting orders by consent and on 17 April 2013 made final property orders by consent.
On 22 April 2013 the Intervention Order was extended for a further 12 month period. In early 2013 the father was charged with a number of breaches of the Intervention Order. On 23 October 2014 he entered a guilty plea, pleading guilty to having sent the mother six emails not related to the children’s welfare, as a result of which a conviction was recorded and he was fined $800. Significantly the focus of the emails, and I will address this matter in more detail later in these reasons, was the father’s desire for a reconciliation, something he persisted with up to and during the hearing before me.
As already stated, on 23 October 2013 the father filed his Initiating Application seeking inter alia the discharge of paragraphs 2(a) to 2(i) inclusive of the final orders made 16 April 2013, the orders which made provision for the children’s time with the father and that “Property Court Order 3, made on 17 April 2013 be varied to include ‘AND the Respondent is to pay the Applicant $200,000 immediately from the sale of the [G Town] property’”, which although somewhat inelegantly drafted was an application to set aside the final orders for property settlement made on 17 April 2013.
The proceedings were transferred to this Court by Judge Connolly on 11 July 2014 and on 15 August 2014, Registrar Mestrovic made orders appointing an Independent Children’s Lawyer and referring the matter to the Senior Registrar’s hearing list.
The matter was listed for hearing before Thornton J in the Judicial Duty List on 22 September 2014. Her Honour made orders by consent suspending the time the father was to spend with the children on 2 October 2014 pending the hearing of the matter by the Senior Registrar on 3 October 2014. Her Honour also invited the Department of Human Services (as it then was) (“the Department”) to intervene in the proceedings and to provide the Court with a report pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”).

The Department first became involved with the children after receiving a notification on 9 December 2010 that there had been “an incident of family violence whereby the father had held the mother by the throat before locking her and the children out of the house”. The Department reported as follows:
Child protection conducted follow up the Maternal and Child Health Nurse (MCHN) and no significant concerns were noted regarding the children’s health or well-being, nor regarding the mother’s parenting capacity.
It was established during the report that the mother was receiving support via a Domestic Violence Service and had demonstrated an ability to act protectively. The father was also engaged with a Men’s Behaviour Change Program. It was also noted that there had been no history of family violence recorded by police and no Child Protection history. The case was therefore closed at intake without investigation.
There was a further notification in April 2011 raising concerns for the safety of the children on the basis of allegations of family violence between the parents.
In August 2013 the Department received a notification that B had disclosed being touched in her “private area” by her maternal grandfather. These same concerns were raised with the Department again in November 2013 however as the matter had previously been investigated the file was closed at intake without investigation.
In December 2013 the Department received a notification that C had made a disclosure which suggested possible sexual abuse by the father and in January 2014 a further report was made to the Department that both of the children had disclosed that the father had touched them “… in such a manner that indicated sexual harm”.
The Court received the Report provided by the Department pursuant to s 69ZW of the Act on 3 October 2014, the day of the hearing before the Senior Registrar. On the basis of the recommendations made by the Department in that s 69ZW Report the father, without making any admissions, consented to the suspension of the children’s time with him pursuant to the final parenting orders until further order. Following the suspension of the children’s time with the father, all time was required to be supervised. The father was to be responsible for the cost of that supervision.
The matter came on for hearing again before the Senior Registrar on 20 January 2015. On that date the Senior Registrar made orders that continued the requirement for supervision until the first week of Term 2 2015 but that thereafter until the final hearing the children were to spend unsupervised time with the father at times and on days as agreed and in default of agreement from 10.30 am until 5.30 pm each Sunday. For the purposes of the children’s time with the father changeover was ordered to occur at Contact Centre E, Suburb I, and if that service was unavailable then to be facilitated by a third party on behalf of each party and known to the children and approved by the Independent Children’s Lawyer.
The matter was otherwise listed for a first day hearing before me on 4 May 2015 with a view to it being listed for a final hearing.
The father filed an Amended Initiating Application on 10 April 2015 seeking detailed parenting orders in similar if not the same terms as his Initiating Application filed 23 October 2013. On 4 May 2015 I made orders adjourning the parenting proceedings to the Senior Registrar’s Duty List at 10.00 am on 22 June 2015 and orders and directions setting down the father’s Amended Initiating Application filed 10 April 2015 seeking to set aside the final property orders made 17 April 2013 for final hearing before me as a one day matter on 7 August 2015.
On 22 June 2015 the Senior Registrar made orders for the reintroduction of overnight time from the commencement of Term 3, 2015, the children to spend time with the father from 10.30 am Saturday until 5.30 pm Sunday each alternate weekend. All changeovers were to take place at Contact Centre E and if a place became available, then at Contact Centre E, Suburb I save that when the children were attending school on Fridays the father was to collect the children from school. In the event of either Contact Centre E or Contact Centre E Suburb I being unavailable, changeovers were to be facilitated by either of P Services if able to do so and at the expense of the father or as otherwise agreed in writing between the parties and the Independent Children’s Lawyer, or outside the front door of Suburb I Police Station and within range of CCTV cameras. All interim applications were otherwise dismissed. In a letter dated 2 September 2015 Contact Centre E Suburb I advised that there had “… been a number of issues with [the father’s] behaviour at the Suburb I service which have resulted in a suspension of service twice. The service does not feel they are able to continue to provide a service to [the father]”.
On 4 September 2015 I made final property orders by consent which provided inter alia for the release of funds held on trust by Moores solicitors pursuant to paragraph 22 of the orders made 4 May 2015 to the mother and otherwise dismissed the father’s application seeking to set aside the final orders for property settlement made 17 April 2013. On that date I also listed the parenting proceedings for final hearing before me as a four day matter commencing on 15 February 2016 with the usual directions for the preparation of the matter for hearing.

Material Relied Upon

The father relied upon the following documents:
·Amended Initiating Application filed 10 April 2015;
·his Case Outline filed 3 February 2016;
·his Affidavit filed 21 December 2015;
·his Affidavit filed 5 February 2016;
·Affidavit of Mr J filed 9 December 2015; and
·Financial Statement filed 20 November 2015.
The mother relied upon the following documents:
·Amended Response to Initiating Application filed 27 April 2015;
·her Case Outline filed 10 February 2016;
·her Affidavit filed 29 January 2016;
·Financial Statement filed 29 January 2016.
The Independent Children’s Lawyer relied upon the following documents:
·Family Report of Ms K dated 27 April 2015 (“the Family Report”); and
·Section 69ZW Report of the Department dated 22 October 2015 (“the s 69ZW Report”).
Although the father did not have legal representation at the final hearing before me, he has from time to time during the proceedings been represented by counsel including at the mention of the parenting applications before me on 21 December 2015 for the purposes of ensuring the matter’s readiness for trial. In anticipation of the hearing of the applications for parenting orders, the father had filed a very lengthy Affidavit and at that mention his counsel sought and was granted leave for that Affidavit filed 20 November 2015, the Affidavits of evidence in chief of Mr J, Ms L Newstead and Mr M filed 9 December 2015 and the Affidavit of evidence in chief of Mr N Newstead filed 14 December 2015 to be withdrawn. On that date and with the father’s consent I also struck out the subpoenas he had issued addressed to Ms O of P Services and Ms Q of the R School issued 9 December 2015 and the subpoena to Qantas Airways Limited issued 14 December 2015.
Although the father had been represented by counsel on 21 December 2015 when he sought and was granted leave to withdraw his Affidavit filed 20 November 2015, at various times during the final hearing before me the father referred to the fact that he would have had more evidence had that Affidavit been in evidence, suggesting that had he known that issues such as family violence and his allegations of alienation were to be a part of the case, he would not have sought leave to withdraw his Affidavit. Although that Affidavit had been withdrawn, as a result of matters being put to the father in cross-examination, in particular in relation to the mother’s evidence as to the family violence by reference to earlier Affidavits she had filed, I gave the father leave to rely upon certain paragraphs of his Affidavit filed 20 November 2015 and his earlier Affidavits to ensure that his evidence was before the Court. I also gave the father leave to rely upon the Affidavit of Mr J which the father had also withdrawn.
During the hearing counsel for the Independent Children’s Lawyer tendered a Report of Mr S dated 25 October 2012 which was prepared for the purpose of the earlier hearings and the reports prepared by P Services.
The father also tendered the following reports prepared for the purpose of the earlier hearings:
·Family Report prepared by Ms T dated 11 April 2007; and
·Psychological Reports of the mother and father by Dr U and annexed to an Affidavit filed 12 April 2013 (“Dr U’s Report”).
The father and counsel for each of the mother and the Independent Children’s Lawyer also tendered various documents from the Victoria Police LEAP reports and the Department’s files.
Both the father and mother sought and were granted leave to lead further oral evidence in chief and were both cross-examined. Although neither the father nor counsel for the mother nor the Independent Children’s Lawyer wanted to cross-examine the family consultant Ms K, there were matters in relation to which I sought some clarification. However as Ms K was on maternity leave and was not available for cross-examination, a request was made that she answer a number of questions, prepared in consultation and by agreement with the father, counsel for the mother and the Independent Children’s Lawyer. Both those questions and Ms K’s answers are in evidence before me.
In his Reasons for Judgment delivered 22 June 2015 the Senior Registrar said somewhat prophetically at paragraph 22 as follows:
There are underlying and unresolved issues which have never been tested at trial between these parties. It is regrettable that, it would seem to me, that on my understanding of the evidence, such testing of evidence is going to be necessary in order to enable, perhaps and hopefully, a way forward to be crafted in the best interests of the children. That particularly is so as there cannot continue to be reignited proceedings and litigation entailing repeated applications filed concerning the girls. It is well settled by social science, and understood that continuing litigation and conflict of which children are aware, or see or live with, will have, inevitably, an adverse impact upon them, both as to their presentation now and in coming years including into adulthood.
Although the issues that I am required to determine ultimately turned out to be quite limited, they are inextricably bound up with the parties’ respective allegations with respect to both the history of their relationship, prior to and post separation and the history of these proceedings. The focus of those allegations being what the mother says was a history of both physical and verbal abuse during the relationship and an ongoing pattern of dysfunctional behaviour, the father’s inability to manage his emotions around the children or separate his needs from the children’s needs and the father’s lack of insight as to the impact of his behaviour upon both the mother and either directly or indirectly upon the children. For the father’s part it is his case that the mother has and continues to take whatever steps she can to alienate the children from him or, using his words, “eliminate him” from their lives including making what he says were false allegations both in relation to family violence and sexual abuse.
Notwithstanding that the issues were limited extensive evidence was required in order for the Court to determine those issues.

Standard of Proof

The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that without limiting the matters the court may take into account in deciding whether it is so satisfied, it is to take into account the nature or the cause of the action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged. The last of these considerations is significant in this case. There are in this case serious allegations of family violence by the mother and by the father allegations that the mother has made false allegations to both the Department and Victoria Police with respect to the children being sexually abused. The seriousness of these allegations is a matter to which I must have regard in determining whether or not either of the parties has met the requisite standard.

Evidence of the Parties

The father gave evidence and was cross-examined at length. Although the father made comments throughout the hearing about being disadvantaged by not having legal representation, in my view he conducted his case quite adequately. He was however not a good witness. Although it was submitted by counsel for the mother that I should accept the mother’s version of the family violence during the relationship as the father had not challenged that evidence during cross-examination, this was not what caused me to prefer the mother’s evidence both in relation to the issue of family violence or generally. Rather, it was the way in which the father responded to questions put to him in cross-examination that caused me to have reservations about his evidence.
Counsel for the mother put detailed allegations of family violence to the father. Rather than giving his version of what had occurred or simply denying the mother’s allegation, he would frequently answer the question by saying; it would not or could not have occurred. This was in my view an attempt by the father to either avoid answering the question directly in circumstances where he perceived the answer might damage his case or to minimise or draw attention away from the issue. One example of many was the father’s answers to questions about the mother being locked out of the house which he had great difficulty answering directly.
The father also frequently answered what he appeared to want to answer rather than what he was being asked and would focus on particular aspects of the evidence which he appeared to consider less damaging.
The father also tended to “cherry pick” those parts of the evidence he believed supported his case. One example of many was the father’s reliance on Dr U’s Report. It is clear from the Family Report that the father believed that Dr U’s Report, which was prepared for the proceedings in 2013, should form part of the evidence in this case and more importantly that it supported his case that there were ongoing concerns about the mother’s mental health and that she required intensive psychological therapy. However as Ms K pointed out at paragraph 32 of the Family Report, the father “... appears to have taken selective sections from this report in support of his claims, instead of utilising the report in its entirety.” As Ms K noted the “report suggested the testing of evidence was necessary before looking at several hypothesis [sic] and potential recommendations according to Court findings”. That of course is the case.
However there are other issues with respect to Dr U’s Report. Dr U saw the parties in 2013 shortly before the Court made final parenting orders by consent. Those consent orders provided for the children to live with the mother and spend unsupervised time with the father which was to increase incrementally such that by early 2014 the children were to be spending each alternate weekend with the father. The suggestion that the mother might have been attempting to exclude the father from the children’s lives is in my view not consistent with her having consented to those orders.
In my view Dr U’s Report is relevant but not necessarily for the reasons the father suggests. In particular, given that the father relied upon the Report in the hearing before me, it tends to emphasise the fact that the father had not, at the time he met with Dr U and still has not accepted responsibility for his actions, denying the allegations of physical violence and suggesting that he had only pushed the mother away to “hold her off” when she was verbally and physically abusing him. The father’s only real concession at paragraph 17 of Dr U’s Report was that having completed a Behaviour Change Program, he now knew that he had taken the wrong approach and a better approach would have been to avoid any confrontation.
The fact that the father chose to rely on Dr U’s Report not only highlighted his tendency to “cherry pick” those parts of the evidence he considered to be helpful but, in circumstances where he seemed to have no real appreciation of the negative aspects of that evidence, also highlights his general lack of insight.
Although Dr U concluded that the father had no formal psychological or psychiatric disorder he also observed of the father as follows:
·he is self-represented and was careful about issues of detail;
·he is relatively “differential”;
·he is organised and controlled, with a tendency towards obsessionality, particularly in relation to the issue of the children;
·he presented as somewhat naive and unrealistic in some regards;
·he appeared to find it more difficult than others to tolerate others’ negative opinion of him, hence the vulnerability to narcissistic concern.
My observations of the father both conducting his case and giving evidence are generally consistent with Dr U’s, albeit having now heard all of the evidence I would not agree with Dr U’s opinion at paragraph 44 that the father’s “acknowledgement of over reactivity to conflict appears appropriate”. In so far as Dr U described the father as “differential” I assume what he meant to say was deferential. I would describe the father as obsequious and somewhat manipulative rather than simply deferential and, as described by Ms K in the Family Report at paragraph 76, “on a relentless quest to have his views accepted by others”.
The mother, whilst at times somewhat defensive and/or anxious, was a good witness. I am not critical of her defensiveness in circumstances where she was being cross-examined by the father who she says, and I am satisfied, has been both physically and verbally abusive and lacks boundaries. The mother’s anxiety was palpable. The mother was clearly distressed not only during her own cross-examination but when allegations of family violence during the relationship and the father’s behaviour since separation were being put to the father during cross-examination. I am satisfied that these were issues that were extremely distressing to the mother and, having observed her in Court and during her evidence, that her distress was genuine.
Notwithstanding her obvious anxiety the mother did her best to answer the questions, providing both detail and context, particularly in relation to the allegations of family violence, and was generally a candid and forthright witness. My observation of her evidence was that it was generally more balanced and in particular not only was she able to readily make concessions when it was appropriate to do so, but those concessions appeared to be genuine. One example of this was during cross-examination of her by the father when she willingly agreed that the children returning from the father’s care with gifts for her on special days including Mother’s Day and her birthday was “a nice thing for them to be able to do”. Although the mother clearly did not like the father, I, like Ms K, observed her to be child focused and importantly able to acknowledge the positive aspects of the children’s relationship with the father.
In all of the circumstances and absent evidence corroborating the father’s version of events I prefer the mother’s evidence.
Notwithstanding the gravity of the allegations the mother and father each make, to a large extent this case and the issues I must determine turn not upon their credit but upon their insight or lack thereof and what that says about their parenting capacity.

Legal Principles

Although the issues in this case are limited I am being asked to make parenting orders. The paramount consideration when the court makes a parenting order is the best interests of the child or children the subject of the proceedings. When the court determines what is in the best interests of the child it must have regard to the primary and additional considerations in s 60CC of the Act. As Murphy J said in Harridge and Anor & Harridge and Anor [2010] FamCA 445 at paragraph 35 these considerations “… are signposts or touchstones within which the broad enquiry as to best interests must be conducted”. As the Full Court, referring to the decision in SCVG & KLD [2014] FamCAFC 42, said in Poisat & Poisat [2014] FamCAFC 128; (2014) FLC 93-597 at paragraph 34: “… [t]he nature and extent of the consideration of the mandatory statutory considerations must, of course, depend upon the circumstances of the case, including the nature and breadth of the issues the subject of the proceedings”.
When the court is asked to make parenting orders there is a statutory presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for that child, unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA of the Act). That presumption is rebuttable if the court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
In circumstances where the court makes an order for the parents to have equal shared parental responsibility it must consider whether it is in the child’s best interest and reasonably practical for the child to spend equal time with each parent and if not, whether it would be in the child’s best interests and reasonably practical to spend “substantial and significant time” with each parent (s 65DAA of the Act).
The parties in this case have agreed that the mother should have sole parental responsibility for these children and an order was first made by consent to this effect in April 2013 and again as part of the orders made by consent on 17 February 2016. In those circumstances it is not necessary for the Court to consider whether it would be in the children’s bests interests and reasonably practical to spend equal time with both the mother and the father or if not whether it would be in their best interests to spend “substantial and significant time” with each parent.
Not only have the father and mother agreed that the mother have sole parental responsibility, they have also agreed that equal time would not be in the children’s best interests. Whether I accede to the father’s application or the mother’s, the children will in any event be spending significant and substantial time as defined by the Act with the father.

Issues

Counsel for the mother prepared a detailed minute of the orders sought by the mother. The father also prepared a minute of the orders he sought responding directly to the minute prepared by counsel for the mother and identifying both the orders he agreed with and those he opposed and setting out his proposals. Having considered the answers Ms K provided to the questions asked of her, the father made some changes to his proposals. Both parties also made concessions or amended their respective proposals at various stages during the hearing.
Ultimately having regard to the respective positons of the parties, the issues I am required to determine are as follows:
·whether the time the children are to spend with the father each alternate weekend should commence from after school on Thursday or after school on Friday;
·whether the children should spend time with the father each alternate Thursday from after school on Thursday until the commencement of school on Friday;
·what if any telephone communication the children should have with each parent during those times they are in the care of the other parent;
·when the children should start spending half of the long summer school holiday period with each parent;
·where changeover should take place and whether it should be supervised on those occasions when it cannot occur at school;
·how many school events the father should be permitted to attend each year at times when the children are not otherwise in his care;
·what restrictions there should be upon the father visiting the children in the event that either or both of them are admitted to hospital;
·what restrictions there should be upon the father using photographs of the children in his profile picture or cover photo on Facebook;
·what if any time the children should spend with the other parent on their birthdays; and
·how the parties should communicate with respect to any issues involving the children.
As previously referred to the father amended his proposals on a number of occasions during the course of the hearing, including during his final address, and his proposals with respect to some of the issues were at times confusing. Doing the best I can the father’s proposals were as follows:
·the time the children are to spend with him each alternate weekend should commence from after school on Thursday commencing in Term 3 2016;
·the children should spend each alternate Thursday from after school on Thursday until the commencement of school on Friday with him commencing in Term 2 2017;
·each parent be permitted telephone communication with the children as follows:
i)when the children are in the father’s care each alternate weekend the children telephone the mother at 7.00 pm on Saturday;
ii)when the children are in the mother’s care the children telephone the father on each Wednesday night at 7.00 pm;
iii)during the school holiday time the children telephone the parent whose care they are not in each Wednesday night at 7.00 pm;
·if the children are not in his care and either child’s birthday falls on a weekend, the children spend time on their birthdays with him for five hours from 12.00 pm until 5.00 pm;
·for the 2016/2017 long summer school holidays the children spend a two week block with him, a two week block with the mother and the remainder of that holiday period to be divided equally;
·commencing the 2017/2018 long summer school holiday period the children spend half of that holiday period with each parent;
·when changeover cannot occur at school, while it may be initially supervised, should in the long term occur at the car park of McDonald’s in Suburb I;
·he should be permitted to attend one event per term per child at the children’s school;
·he should be permitted to visit the children in hospital without any restrictions;
·communication between the parties to include email as well as text message; and
·he opposed an order restricting him from publishing, printing or otherwise disseminating images or photographs of the children on social media, print media and other publically accessible forums save that he agreed he would change his security settings on Facebook so that the children’s photos could not be publically viewed.
The father did not specifically address whether he opposed orders that:
·he be restrained from having the children assessed, reviewed or examined by any counsellor, therapist, psychologist or other specialist;
·he be restrained from communicating any information in relation to these proceedings on social media, by email or any other means to any person who is not a party or expert witness in the proceedings.
Finally, although the father in his minute of orders said that he did not agree with paragraphs 11 to 15 of the mother’s minute, he did not address those orders in any detail. Paragraphs 11 to 15 of the orders the mother proposed were as follows:
11.That in the event the children (or either of them) are invited to a party or other special occasion at a time during the other parent’s care, the parent forthwith upon receiving the invitation provide a copy or notice of it by text message on the mobile telephone number they have been provided with by the other parent.
12.That the parents shall as soon as practicable notify the other of any serious illness or injury sustained by the children (or either of them) whilst in their care and provide any particulars of treatment received or required.
13.That each parent be restrained from enrolling or committing the children to any activity during the other parent’s time without first obtaining the other parent’s consent in writing.
14.That the father keep the mother informed in relation to his taking of prescription anti-depressant medication, and provide such information to the mother as she may request from time to time.
15.That each parent inform the other if they intend to take the children outside of the State of Victoria during the period the children are in that parent’s care.
The mother’s case with respect to each of the issues I must determine is as follows:
·the time the children are to spend with the father each alternate weekend should commence from after school on Friday;
·the children should not spend each alternate Thursday with the father;
·there should be no telephone communication with the children during the times they are in the other parent’s care;
·for the long summer school holidays the children spend time with the father as follows:
o2016/2017 for the first four days of the holiday period and then a five day block in each fortnight;
o2017/2018 a week about arrangement;
o2018/2019 and thereafter half of the holiday period;
·on the occasions where changeover cannot occur at school or at a contact centre it should be supervised by a professional supervisor at the expense of the father;
·the father should only be permitted to attend one event per child each year at the children’s school at times when they are not in his care or without her written consent;
·the father should similarly not be permitted to visit the children in hospital at times when they are not in his care or without her written consent;
·the children should not spend any time on their birthdays with the parent whose care they are not in on that date;
·communication between the parties be limited to text message only (save for any case of emergency);
·the father should be restrained from having the children assessed, examined or reviewed by any counsellor, therapist, psychologist or other specialist;
·the father should be restrained from publishing, printing or otherwise disseminating images or photographs of the children on social media, print media and other publically accessible forums save that he be permitted to share photographs on his Facebook page subject to him maintaining the appropriate security settings limiting access to those photographs to his friends on Facebook and further subject to him not using photographs of the children in his profile picture or cover photo and removing historical cover photos or profile pictures which include the children; and
·the father should be restrained from communicating any information in relation to these Court proceedings on social media, by email or any other means to any party who is not a party or expert witness in these proceedings.
Although the Independent Children’s Lawyer was generally supportive of the mother’s proposals, she neither supported nor opposed the time the children spent with the father commencing on Thursday after school in each alternate weekend. In closing submissions the Independent Children’s Lawyer also sought to extend the injunction sought by the mother with respect to Facebook to prevent the father from opening Facebook accounts in the name of either or both of the children.

Primary considerations

Family violence

Section 60CC(2A) of the Act requires the court, when applying the primary considerations, to give greater weight to the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence than the benefit to the child of having a meaningful relationship with both of the child's parents.
Family violence is defined in s 4(1) of the Act to have the meaning given by subsection 4AB(1) of the Act. Section 4AB(1) of the Act defines family violence as follows:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(original emphasis)
Abuse in relation to a child is defined in s 4(1) of the Act as:
(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
(original emphasis)
The mother makes allegations of family violence both during the relationship and following separation and it is her case that the father’s lack of boundaries since separation has exacerbated her fear of him, given that history of family violence and have added to her general level of anxiety. The two are inextricably linked and whilst the allegations of family violence since separation may not be on the same scale as those during the relationship, the father’s behaviour since separation, including what the mother says is his lack of boundaries, and the her anxiety as a result of that behaviour, is in my view a significant factor in this case. It is significant both as to the impact it has on the mother and has or may have on the children, and, if the mother’s allegations are accepted, what the father’s response to those allegations demonstrates about his lack of insight into his own behaviour and its impact upon those around him.
Although in her Affidavit filed 29 January 2016 at paragraph 20 the mother deposed generally to the allegations of what she described as “horrific physical, verbal and psychological abuse”, in cross-examination counsel for the mother put to the father some of the specific incidents deposed to by the mother in her earlier Affidavits. These included an incident on 3 December 2010 when the mother said she had fled the home with the children, who were then 13 months and six weeks of age, because the father had been in a violent rage and threatened to kill her, and had locked her and the children outside in a thunderstorm without access to her mobile phone, purse or items she needed for the children. It was put to the father that this was one of numerous occasions when he had locked her out of the house between June 2009 and separation including in October 2010 when she was pregnant. The father’s response included that “if she left the home, there was always a way to get back in”.
The father was also cross-examined about the events of 6 December 2011 when the mother had left the former matrimonial home with the children she said after the father’s violence escalated and increased in frequency, leaving behind all her credit cards so the father would not be able to accuse her of spending their money without agreement. It was put to the father that the mother feared for her safety and sought and was granted an interim Intervention Order on 8 December 2011 which was made final on 13 March 2012.
Although the father in his Affidavits and in cross-examination denied these allegations I found his evidence unconvincing.
Dr U in his Report questioned the lack of specific details in the mother’s account of the alleged family violence. However, as he noted, his conclusions are subject to findings of fact. The evidence has now been tested and I, like Mr S who saw the parties for the preparation of his Report dated 25 October 2012, found the mother’s account believable and his description of the mother’s distress when she recounted the incidents of the father’s violence was consistent with my observations of her evidence.
Mr S in his Report dated 25 October 2012 at paragraph 25 said that the mother had described her “... constant apprehension to do with [the father’s] state of agitation and the explosiveness that was characteristic of him in the marriage”. This is consistent with the mother’s evidence in her Affidavit filed 29 January 2016, where she deposed at paragraph 21 that at Court on 8 December 2014 in the courtroom in the presence of the Senior Registrar and counsel “the father became very agitated, interrupted proceedings and marched in and out and around the court room. That culminated in an explosive outburst where he referred to my counsel or counsel for the [Independent Children’s Lawyer] (or both) as an arsehole, and stormed out of the court. I was traumatised and distressed by this outburst as it reminded me of the way the father would behave during our relationship just before the physical abuse would start”.
The mother went on to say at paragraph 22 as follows:
After this I suffered flashbacks from our relationship and was quite disturbed that he could behave in this way in a public forum in front of court officials…
My observations of the mother during her evidence are consistent with her experiencing significant anxiety when recalling what she says was the history of physical, verbal and psychological abuse. The father’s attempts to minimise the incident on 8 December 2014, including his evidence that he had seen the member of counsel for the Independent Children’s Lawyer who had been present on 8 December 2014 on several occasions outside the courtroom since that incident and that he thinks “he [referring to counsel] is a nice man” and that “if I see him outside, I’m always polite, I say hello and he says hello back”, only tended to confirm my assessment of the father’s inability to accept responsibility for his actions and his lack of insight in relation to the impact of that behaviour. It also confirms my preference, in the absence of other corroboration, for the mother’s evidence in relation to this and the other allegations of family violence.
This is reinforced by the fact that that there are many similarities between the mother’s descriptions in her interview with Mr S in October 2012 of events which, in my view demonstrate the father’s lack of boundaries and her description of the father’s behaviour together with other evidence of his behaviour since those interviews and indeed my observations of the father’s evidence.
Ms K referred at paragraph 13 of the Family Report, based upon her reading of the Victoria Police file, to “… a history of Intervention Orders (IVO’s) protecting five individuals (including [the mother]) from [the father], dating back from 1998 until currently. There are also several family violence incident reports in relation to conflict between [the father] and three other women (including [the mother]), along with an IVO protecting [the father] from a person by the name of [Ms V]…”. She also referred to a conviction for a breach of an Intervention Order on 30 October 1998 and an abandoned appeal in relation to that conviction. Ms K also noted at paragraph 15 of the Family Report the concern expressed by the Department in relation to the history of the Intervention Orders sought by the father’s ex-partners.

The father was cross-examined in relation to this history of Intervention Orders and allegations of family violence. My impression of his evidence was that he attempted to minimise the seriousness of those orders and failed to address in any real sense or take responsibility for the seriousness of the issue of family violence both with respect to the mother in this case and generally. His evidence given in response to questions asked by counsel for the Independent Children’s Lawyer during cross-examination included the following statements:
·Counsel for the Independent Children’s Lawyer: “That to me are [sic] six separate people making intervention order applications against you, do you think that is indicative of a problem you have in dealing with people?”
·Father: “No, no because I’ve had many girlfriends, and some of them have been in court here with me and they’re all supportive. Unfortunately the [Ms W] and [Ms X] one [sic] were in regards to [Y] which I have to have the rebuttal issue. [Ms Z] one I consented. There was difficulty regarding the house, yes it was disappointing. [Ms AA] we both had one over each other, that was the best way to go. And then basically well there’s [the mother]… Unfortunately the main ones there with the applications are the two ladies that I’ve had children with, and who have both been legally represented and all the other ones there’s never been an issue, we all consented to them.”
·Counsel for the Independent Children’s Lawyer: “There’s an issue that they had to apply in the first place, would you agree with me about that …?”
·Father: “I’m sure you’re aware anyone can get an intervention order on anyone here”
·Counsel for the Independent Children’s Lawyer: “So you don’t agree with me that the fact that someone has to apply for an intervention order against you is an indication that there’s problematic behaviour?”
·Father: “I do not agree I have problematic behaviour because … you only have to go down to the local Magistrates’ Court, there’s hundreds getting intervention orders on each other. Yes I’m sorry about the breaches with [Ms W] and [the mother] and um you know that won’t happen again”
·Counsel for the Independent Children’s Lawyer: “Just in relation to that, given you’d been through all of that before with your first wife – you’ve had an intervention order, you’d been spoken to by the police, you had to go to the court, you’d been charged with a breach of an intervention order – wouldn’t that make you even more wary when a new intervention order was placed on you. Wary that you really need to comply?”
·Father: “My whole focus was regarding the children. And if I’ve been naïve enough, which obviously I have, to overstep that mark in regards to my quest to be a part of my children’s lives, I am sorry. I am very sorry for the hurt that that may have gave [sic] everyone but my whole focus, and I may have been naïve, but my whole focus has been my children, a father to my children”
·Counsel for the Independent Children’s Lawyer: “Do I take from that that … it was a deliberate act. That you thought ‘this is about my children, I really need to contact her, I don’t care if there’s an intervention order or not’…”
·Father: “You talking about [the mother]?”
·Counsel for the Independent Children’s Lawyer: “Yeah. The fact that … I need to talk to her about the children overrides everything else?”
·Father: “… If we can go back to yesterday, the intervention order allowed contact…”
In my view the father’s answers did not address the seriousness of nor demonstrate that he had any insight into the issues about which he was being questioned.
Ms K also made reference to the notes in the Department’s file in relation to the father’s son Y’s reports of the father’s aggression and of family violence between the father and the paternal grandparents. A Family Report prepared by Ms T on 9 March 2007 for the proceedings between the father and his former wife in relation to Y was in evidence before me. Although Ms T specifically did not address either the detail or validity of the allegations of family violence made by the father’s former wife and was critical of her for not promoting Y’s relationship with the father and reported that the paternal grandparents had denied any allegations of abuse by the father, there are some striking similarities between the allegations made by the mother and the children in this case and in particular Y’s descriptions of the father’s behaviour towards the paternal grandparents.
The mother’s evidence as compared to the father’s evidence was detailed; she had photos of her injuries, there were records of police attendances and complaints made and notifications of family violence made to the Department which were consistent with her evidence as to the timing of some of these incidents. The emails the father and mother exchanged following separation also support and are consistent with the mother’s evidence. Those emails which the father tendered in order to demonstrate that he and the mother were able to communicate refer to the history of family violence during the relationship and the part that violence played in the breakdown of that relationship. In those emails the father not only does not deny that family violence, to the contrary, he repeatedly refers to the steps he is taking to change his behaviour.
Weighing up all of the evidence before me in relation to these issues I am satisfied on the balance of probabilities to the requisite degree having regard to the seriousness of the allegations that the mother was subjected to family violence during the relationship and that the children, albeit very young at the time, were exposed to that family violence.

Sexual abuse allegations

As previously referred to there were notifications to the Department with respect to B having disclosed that her maternal grandfather had touched her genital area. Although the case was closed shortly thereafter these allegations were raised again some months later but the file was similarly closed at intake without investigation.
On 24 January 2014 a notification was made that both children had made disclosures “that their father had touched them in such a manner that indicated sexual harm”. The allegations, recorded at page 3 of the s 69ZW Report, were:
… that both children had stated ‘daddy touches me here, like this’ accompanied by hand motions - rubbing their vaginas back and forth.
The matter was investigated by Police Sexual Offences and Child Abuse Investigation Team [SOCIT] and the children did not make disclosures of sexual harm perpetrated by their father.
The case was closed at intake with insufficient evidence to warrant ongoing Child Protection involvement. AT the time of closure the father had stated that he would have friends supervise his contact with the children, and the mother advised that she would support ht [sic] children in accessing therapeutic counselling.
A further notification was received by the Department on 13 March 2014 which “raised concern for the children when having access with their father. The allegations were that the father was known to have perpetrated sexual abuse in the past and as such that a likelihood of harm existed for the children in his care” (page 2 of the s 69ZW Report). The Department reported that during the course of the investigations allegations were made that following contact with the father on 5 May 2014, B had presented with a red and inflamed vagina that she had described as being sore. It was also reported that C had been rubbing her vagina on the corner of a table and made a comment that “someone rubs powder on it”, at which time B had interjected and said “no he puts powder on it”. Neither child had elaborated on their comments. As a result of the concerns that had been raised the children were examined by Dr BB (General Practitioner) who noted that C had a “staph infection” in addition to redness in her vaginal area and that B had presented with a slight redness in her vaginal area. Dr BB reported that Vulva Vaginitis was not an uncommon ailment in children and that she did not consider a Forensic Medical Examination to be necessary based on the children’s presentation. C was prescribed antibiotics.
Further concerns were raised on 11 August 2014 when the mother said the children presented with inflammation of the vaginal area and C disclosed her father touching her. The Department contacted Dr CC (General Practitioner) who noted after examining C that there was inflammation of the perineum however “there was insufficient evidence to suggest a Forensic Medical Examination was required.” The Sexual Offences and Child Abuse Investigation Team was contacted however C when interviewed made no disclosures of abuse. Notwithstanding the observations of Dr CC and the lack of any disclosures, on 14 August 2015 C underwent a Forensic Medical Examination at Monash Medical Centre. Dr DD advised, following an external examination and liaison with an unidentified General Practitioner, that C was presenting with Vulva Vaginitis.
The Department reported that attempts were made to interview the children but that those conversations did not yield much by way of context or detail to the allegations. Given this issue as well as the reports of family violence, it was recommended that the children engage with play therapy.
The children were engaged in play therapy with Ms H who was contacted by the Department and who reported to the Department (as recorded at page 3 of the s 69ZW Report) that:
… the children presented as very anxious and guarded in terms of discussion. She advised that there had been some disclosure by the children about incidents of verbal violence between the father and Paternal Grandmother (PGM). [Ms H] recommended that the children’s contact with the father is supervised until she could further explore the issues with the children.
As a result of these notifications and earlier notifications the Department reported that:
Child Protection substantiated Emotional Harm for the children on the basis of trauma based behaviours. The perpetrator of harm was not identified at the time of substantiation given that there had been limited and non specific information held by child protection in relation to the attributing causes of the emotional difficulties being experienced by the children.
The case was closed by Child Protection noting that the matter was being heard through the Family Court and that there had been orders made for the father’s contact with the children to be supervised. Child Protection assessed that there had been highly repetitive sexual abuse allegations in relation to [C] and [B] in their father’s care however it was noted that there was a highly acrimonious relationship between the parents. It was recommended at closure that the matter should not be repeatedly investigated in the absence of clear evidence of abuse.
There have been no further disclosures made by the children or notifications to the Department with respect to any sexual abuse of the children. Whilst it is the mother’s case that she accepts that the father does not present or pose a risk of sexual abuse to the children, it is the father’s case, albeit the two positions are in my view somewhat inconsistent, that she is firstly hypervigilant and secondly that she fabricated these allegations in order to prevent the children spending time with him.
The father relied upon the following statement in the s 69ZW Report at page 3 (extracted above) to the effect that:
Child Protection assessed that there had been highly repetitive sexual abuse allegations in relation to [C] and [B] in their father’s care however it was noted that there was a highly acrimonious relationship between the parents. It was recommended at closure that the matter should not be repeatedly investigated in the absence of clear evidence of abuse.
However as pointed out by Ms K this ignores the fact that the children had been reported as having vaginal inflammation at the time of each notification and, even more significantly, as reported by Ms K at paragraph 46 of the Family Report, that the mother “… acknowledged the possibility for alternate reasons for the vaginal infections and … did not appear fixated on the potential for sexual abuse risk”. I am satisfied as opined by Ms K at paragraph 72 of the Family Report that the mother “appears to have acted appropriately in seeking additional assessments and investigation, along with ongoing emotional support for the children. Such investigation appears justified in the context of presenting medical concerns, along with alleged behavioural difficulties”.
The father is unable to recognise the possibility that the mother was acting appropriately in the context of the allegations of sexual abuse and continues to assert that the mother has “eliminated him” from the children’s lives. This is contrary to the evidence. Notwithstanding the obvious anxiety experienced by the mother and her concerns about the father and his unwillingness or inability to observe boundaries around the mother, I am satisfied that, apart from that period when the allegations of sexual abuse were being investigated, she has supported and facilitated the father spending time with the children.
The father’s case is also not consistent with Ms K’s opinion at paragraph 71 of the Family Report, which is consistent with my observations of her evidence, that the mother “… appears supportive of them maintaining a healthy relationship with [the father], in the absence of risk, which does not support the notion that she is seeking to estrange the children from the father”. This is also consistent with the mother not to putting as part of her case that the father poses a risk of sexual abuse to the children and that the fact that she has moved to overnight time without supervision.
I am satisfied on the balance of probabilities that the father spending time with the children would not expose the children to an unacceptable risk of sexual abuse. Although I am satisfied that the mother is quite anxious, I am not satisfied on the balance of probabilities that any allegations, or for that matter any notifications she may have made were because of any hypervigilance on her part about the possibility of the children being sexually abused by the father. I am also satisfied that the mother did not fabricate sexual abuse allegations to prevent the children spending time with the father.
Whilst I am satisfied on the balance of probabilities that spending time with the father would not expose the children to a risk of sexual abuse and there are no recent allegations of physical violence by the father against the mother, I am satisfied that particularly in the context of the history of family violence that there are aspects of the father’s behaviour which reasonably cause the mother to be fearful for herself and the children and that there is the “potential for emotional harm” to the children both in the father’s care and generally as a consequence of his behaviour. It is the concern about that behaviour which is the basis of the Independent Children’s Lawyer’s case that boundaries should be placed between the parties, allowing them to parallel parent the children, protecting the children from the ongoing dispute.
Ms K in the Family Report said of the father at paragraph 76 as follows:
… the father’s views relating to the mother appear entrenched and unbending. In this respect, he appears on a relentless quest to have his views accepted by others. He presents as lacking in capacity for boundaries at times, and his capacity for change may be somewhat limited. The impact of this on his parenting is unclear, however, in the event [the father] perceives that his relationship with the children is at risk, there may be a potential to involve the children in the parental dispute. Thus, elevating a potential for emotional risk …
This is consistent with my observations and assessment of the father’s evidence. I am satisfied that the father has difficulty imposing boundaries on his behaviour. He either has no insight into the impact of his behaviour on the mother, the children or for that matter others around him, or alternatively he simply does whatever he wants to do and ignores the concerns of those affected by his behaviour. The father objected on a number of occasions about the behaviour of counsel for the mother and the Independent Children’s Lawyer. Although I did on at least one occasion remind counsel to refrain from talking or making comments during the father’s submissions, it was also the case that the father laughed on occasions, reacted inappropriately to the mother’s evidence and the submissions made on her behalf and by counsel for the Independent Children’s Lawyer, and seemed to have absolutely no insight into the impact either his submissions or his evidence was having upon the mother.
There are many examples of what Ms K described as the father’s “relentless quest” to have his views accepted, his total lack of insight and, in my view even more importantly, his total inability to reflect upon his own behaviour and accept responsibility for that behaviour.
The first of those examples was the evidence in relation to the father suggesting that the parties might reconcile. The first part of that evidence which I consider to be relevant was the evidence of the emails passing between the father and the mother shortly after separation. This was at a time when the mother had alleged that she was a victim of significant family violence and had sought an Intervention Order. As previously referred to, the father relied upon these emails as evidence of the parties’ ability to communicate by email and in support of his case that he should be able to email the mother. Those emails included the following exchanges:
·On 4 February 2012: “I know this is a long shot but would be interest in going to [a nature park] tomorrow as a family? I can prepare a day Parenting Plan for the outing which the IVO allows … It would be beautiful to do a nice trip as a family. I miss you all so much and I’m sure you all miss me too… I am committed to change [Ms Burns] and a simple day excursion like this could bring some trust back. It would also be so beneficial for the girls to see mummy and daddy together & happy. It would allow just to talk about normal things and be happy. Really we have nothing to lose and everything to save by doing it…”.
·On 10 February 2012: “Let me get better. Which will be completely done in a couple [of] months and give it a go. What is there to lose? Everything to gain. We all love eachother”.
·On 15 February 2012: “… As you and I spoke about today. I don’t want to split up. It is totally your choice to split up. DV has occurred in the past but is now being removed from everyones [sic] lives. You have the choice to split or not. I don’t want to ………….. it just gets down to you. I think a break for some time to gather thoughts and feelings is preferred. Most people at my courses are having time out with their partners as there is too much to lose by going their separate ways. Our scenario is the same. Their [sic] actually is more to lose for us as our kids are so young, and by repairing our relationship now they have more to receive from us by being in a healthy relationship. Basically all their lives”.
·On 21 February 2012: “I know [Ms Burns] it wears everyone out. I feel quite sad this arvo. Especially after looking at those pics. I just want to cuddle you, close my eyes and start again. Roll the dice one more time”.
·On 21 February 2012: “[Ms Burns] stop the nasty comments. I just want to save my family. Have you back for a cuddle. There’s no hidden agenda. Is a man just mean’t [sic] to walk away and not try? You would have been dsppointed [sic] if I did that…”.

The children attend school in Suburb HH. The father lives in Suburb II. It is the mother’s case that it would be particularly onerous for the children to travel from school to the father’s home on the Thursday evening but even more so to travel from the father’s home to school on the Friday morning of each week. It was the mother’s case that this would take at least 45 minutes. Although the father said it was somewhat less and it will clearly depend upon traffic conditions on the day, I am satisfied that in any event it is likely to involve significant travel time.
The written request to Ms K to answer questions included the question “whether the father’s alternate weekend time should commence after school on Thursday and if so when should that commence having regard in particular to the approximately 45 minute travel time between the father’s home and the school?”. Ms K’s response to that question was as follows:
In looking at the appropriateness of extending the paternal time to commence after school each alternate Thursday, consideration will need to be made towards the impact, if any, that this may have on the children, particularly with regard to travel.
In the event [the father] is already delivering the children to school on a Monday, does this travel impact upon their day at school, or create tiredness during the day? If not, then consideration could be made towards extending the father’s time from Thursday’s each alternate week. However, if there is any doubt that such arrangement may cause a negative impact on the children’s schooling, or their emotional capacity to be away from their mother for extended time, then this may need to be reconsidered when they are older, or the parenting arrangements are further established. For example in 2017.
Ms K was also asked “whether the children should spend from the conclusion of school on Thursday until the commencement of school on Friday in the alternate week, similarly having regard to the approximately 45 minute travel time between the father’s home and the school?”. Ms K’s response was that this “… again will likely be determined by the impact of travel on the children. This is currently unknown to the report writer, however, given that [C] is believed to have only recently commenced formal schooling in 2016, additional mid-week time (with extensive travel) may not be appropriate currently”.
Apart from the father’s assertions that the children enjoy their time in the car with him, there was no evidence of any effect the travel either from school to the father’s home at Suburb II on Friday or from his home to school on Monday morning has been having upon the children. Notwithstanding the absence of specific evidence in relation to this issue, it speaks for itself in my view that in a perfect world as little travel as possible for children of this age would be optimal. However it is not a perfect world and in circumstances where I am required to make orders that promote the children’s best interests any additional travel is just one of a number of considerations.

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

As previously referred to the parties in this case have been involved in proceedings in either the Federal Circuit Court or this Court for most of these young children’s lives. Although I am satisfied that it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the children, that will ultimately depend upon the parties and in my view, in particular, the father. As previously referred to Ms K’s observations at paragraph 76 of the Family Report that “… the father’s views relating to the mother appear entrenched and unbending” and that “… he appears on a relentless quest to have his views accepted by others” are consistent with my observations of the father’s evidence. Although I am satisfied that the orders I propose to make will enable both of the father and the mother to play a meaningful role in their children’s lives, it is also not necessarily the case that the orders will bring to an end the parental dispute.
Although I am satisfied having heard the mother’s evidence that she does not want to be involved in ongoing litigation I am not confident that the father would feel the same way even if the Court were to adopt his proposals in their entirety or that to do so would avoid further proceedings. However this is just one of the matters I must consider in determining these children’s best interests and I am certainly not satisfied that it would be in the children’s best interests to adopt the father’s proposals for the purposes of avoiding further proceedings.

Family violence and family violence orders

I have already discussed in some detail and made findings in relation to the history of family violence.
As discussed previously the mother applied for and obtained an Intervention Order against the father following separation and the father has a conviction for breaching that order. There is currently an Intervention Order in the mother’s favour in force which was made by the Magistrates’ Court at Suburb F and expires on 27 August 2017.

Other considerations

There are a number of other considerations that I have not referred to specifically either because they are not relevant to the facts of this case or because I have dealt with them in the context of those considerations I have already addressed.

Conclusion

Although the parameters of the dispute narrowed over the course of the litigation and during the hearing itself, those issues that remained unresolved were in my view representative of the ongoing level of conflict, the father’s difficulties maintaining appropriate boundaries, his “relentless quest to have his views accepted” and his lack of insight into his behaviour and how that behaviour impacts upon those around him, and in particular the mother and the children.
The Court must consider in this case not only the advantages and disadvantages of the additional time sought by the father but also the potential benefits of the father’s involvement in all aspects of the children’s lives, including the opportunity for them to have their father collect and deliver them to and from school during the school week and not just on weekends and to participate with the children in any school activities that might take place on those days.
In doing so the Court must also weigh up the risk to the children of the ongoing conflict and the impact of the father’s behaviour both upon the mother, who is their primary carer, and her capacity to parent and also upon the children themselves. The orders I propose to make are intended to shield the children, as much as possible, from the ongoing conflict and the father’s behaviour and its possible impact either directly or indirectly upon the children whilst allowing and where possible facilitating their relationship with him.
Counsel for the Independent Children’s Lawyer submitted that this could be best achieved by what she described as parallel parenting. In my view what it is called is not important. What in my view is important in this case for the children’s welfare is that the mother, as the children’s primary carer, is able to parent free of interference and free of the anxiety she experiences as a result of both the father’s inappropriate behaviour and lack of boundaries and his lack of respect for her parenting.
Although having regard to all of the evidence I have confidence in the mother’s capacity to protect the children, I am also satisfied, given the father’s behaviour and the mother’s anxiety, that coming into contact with the father will make that more difficult for her to do so, potentially exposing the children to the ongoing conflict.
I do not have the same confidence in either the father’s willingness or his capacity to put the children’s needs ahead of his own. Although the father in his evidence said that he accepted that the mother was anxious about coming into contact with him, his evidence and the way in which he put his case suggested otherwise.
For example it was part of the father’s case that his attendances at the school when the mother was also present were not only a positive experience for the children but that the mother had not appeared to be anxious. On at least one of those occasions he had ignored the mother’s refusal of his request to attend, his evidence being that he was just doing what other parents were doing and that B had told him she wanted him there. I am satisfied based upon his evidence that the father either does not appreciate how the mother might feel or alternatively does not care and will do what he wants, whatever impact that might have, either directly or indirectly, upon her or the children.
I accept the mother’s evidence in relation to what she says has occurred when she and the father have been at the school at the same time and I am satisfied that she found the father’s behaviour on those occasions both intimidating and distressing notwithstanding the father’s evidence to the contrary. In my view the father’s evidence that she was not anxious demonstrates not that she was not anxious but the effort she makes to protect the children from her feelings about the father in those circumstances.
The father’s involvement in the children’s activities at the school has been an ongoing area of dispute. At the commencement of the hearing the mother’s proposal was that the father should only attend those activities taking place during his time with the children. It was the father’s case that he should be able to attend all activities parents would normally attend irrespective of whose care the children might be in. At the end of the case the Independent Children’s Lawyer proposed that the father be permitted to attend parent teacher interviews and one or two other events per year not attended by the mother. The mother adopted the Independent Children’s Lawyer’s proposal submitting that she nominate two school events per year for each child and that the father select one event per child per year. The father for his part submitted that he should be permitted to attend one event per term in addition to those events taking place during the children’s time with him.
The evidence is not totally clear as to how many events there may be that parents are either invited to or expected to attend each year, however whether it is as the father says four or five per term or on the mother’s case significantly less frequently, I am not satisfied that one event per child per year even in addition to those events that might take place when the children are in his care is sufficient involvement by the father in the children’s school activities. As Ms K opined, in an ideal world the parents would be allowed to attend all events open to parents and in normal circumstances this would likely to be of benefit to the children. Unfortunately the circumstances in this case are far from perfect.
It is in my view essential, as submitted by the Independent Children’s Lawyer, that school be a haven for the children rather than a battle ground for the parents and I am satisfied that the boundaries must be clearly defined leaving as little room for negotiation or variation as possible. It is also essential for the father to comply with the orders, although the history of this matter suggests that this may be difficult for him. In the event that the father fails to do so, the only future option may be for the Court to prohibit his attendance at the school save and except for the purposes of delivering and collecting the children to and from school.
Doing the best I can on the evidence I have before me and weighing up the need for and the benefit to the children of having both their parents involved in their schooling and the need to shield the children from the conflict and their mother’s anxiety as a result of the father’s behaviour, I propose to make orders permitting the father to attend two events for each child per calendar year, to be chosen by the father from three events per child per year nominated by the mother, in addition to those that occur during the time the children are in his care and parent teacher interviews which can be arranged separately.
The father’s involvement in the children’s schooling is also relevant for the purposes of determining when the children’s time with the father should commence and whether they should spend time with him from after school on Thursday in the other week. Weighing up all of the evidence and considering all of these issues, I am satisfied that it would be in the children’s best interests for their time with the father each alternate weekend to commence on Thursday after school. This will not only allow them to spend some additional time with the father but will also help to address, at least in part, the issue of the father’s involvement in activities at the children’s school.
The father submitted that in the event that the Court did not accede to his application for overnight time in the alternate week, the children would not see him for a period of 10 days between visits. It was his case that the previous orders had provided for mid-week time with the children and a 10 day gap between visits would be too long for the children. Although the children had previously spent mid-week time with the father, that was in circumstances where they were spending more frequent but shorter periods with him and also prior to them commencing their formal education. Whilst it is true that the children will not see the father for 10 days I am satisfied that his proposal would not only add to the burden for the children of the additional time spent travelling to and from school but may also disrupt the time the children spend with the mother, who is their primary carer. I am mindful, in circumstances where I am satisfied that the father is not supportive of the mother’s role and has difficulty maintaining appropriate boundaries, despite what he says to the contrary, of the need to maintain the separation between the time they spend with each parent and for that reason and because of the issue of the extra travelling time do not propose to accede to the father’s application that he should spend mid-week time with the children during the other week.
The father also sought orders permitting him to telephone the children during what he referred to as the mother’s extended time which I take to be the week following the children’s weekend time with him and each Wednesday during the children’s holiday time with the mother. He also proposed that the mother be permitted to telephone the children on the Saturday night on his weekend and each Wednesday during their holiday time with him. The mother did not seek orders for telephone time with the children during their time in the father’s care and opposed the father being permitted to telephone the children when they were in her care.
Ms K was asked in writing “what if any telephone time the children should have with each parent while they are not in their care?” and her response to that question was as follows:
It may be beneficial for the children to keep in contact with each parent whilst not in the care, so long as such communication is child focused and free from parental influence or involving the children in the parental dispute. For example; once or twice weekly. The children should also be able to contact the respective parent they are not with, at their own discretion, when recently questioned by either child.
The parent’s [sic] should also be mindful that excessive or regular intervals of communication over time (as the children develop), may become intrusive on the children’s schedules, and may be geared towards meeting the parent’s [sic] needs ahead of the children’s.
The parties are agreed that the children will spend half of each school term holiday with the father commencing in 2017. The mother’s case is that during the 2016/2017 long summer holidays the children should spend four nights with the father from the last day of the school term until 18 December 2016 and that they should thereafter spend five nights per fortnight with the father for the remainder of that school holiday period those dates to be dependent upon Contact Centre E being able to accommodate changeover. It is her case that in the 2017/2018 summer holidays the children should spend half the school holiday period with the father on a week about basis moving to a block of half of the long summer holidays in 2018/2019. Although in his minute of orders the father proposed that the children spend six nights with him per fortnight in the 2016/2017 long summer holidays, in his closing submissions he proposed that the children should spend a two week block with him, then a two week block with the mother, with the remainder of that holiday period to be divided equally between he and the mother. He further submitted that thereafter from the 2017/2018 long summer holidays the children should spend half of each school holiday period including long summer holidays with each parent.
Although at the commencement of the 2016 long summer holidays B will be seven and C will be six, they have not to date spent any extended periods with the father. In my view it is in their best interests for their time with the father to be gradually introduced. In circumstances where I propose to make orders which provide for the children to spend four nights with the father each alternate weekend and it is agreed that the children are to spend half of the school term holidays with the father commencing in 2017, I am satisfied that periods of five nights per fortnight as proposed by the mother in the forthcoming long summer holidays will allow the children to become accustomed to spending lengthier periods away from the mother. I also note Ms K’s view that it was “highly likely that initially, holiday time may need to be in shorter durations”.
I am not satisfied that it is in the children’s best interests for the times the children spend with the father to be dependent upon Contact Centre E being able to accommodate changeover. In my view this will be fertile ground for dispute. I am satisfied that the interests of the children would be better served by certainty and propose to order that the children spend each alternate Wednesday to Monday with the father commencing on the last day of school term. However I also propose that in the event that the children’s time with the father falls at the conclusion of the school holidays the children be returned to the mother’s care at 5.00 pm on the day prior to the resumption of school as proposed by the mother. This will also avoid any dispute as to who should take the children to school on the first day of school and avoid the necessity of the parents having to agree upon who is responsible for that or to make arrangements to ensure that the children are ready for the commencement of a new school year. For those reasons I propose to order that the children’s time with the father during all school holiday periods conclude at 5.00 pm on the day prior to the resumption of school as proposed by the mother. If changeover cannot be accommodated by Contact Centre E during the 2016/2017 long summer holidays the parties will need to engage the services of a private supervisor.
In circumstances where the children will have been spending four nights per fortnight and half of the school term holidays with the father during 2017, as well as five nights per fortnight in the 2016/2017 summer holidays, I am not satisfied that it is necessary for their time with the father during the 2017/2018 long summer holidays to be limited to week about. Although Ms K qualified her opinion by the need to consider how the children might cope with extended holiday time she also said that a large block of time (for example two weeks) might be considered. I am also mindful of the fact that it is proposed by both the father and the mother that in 2018/2019 the children will be spending one half of the holiday time with the father in one block.

Although I do not propose to adopt the father’s proposal that in the forthcoming long summer holidays the children spend two weeks with him I am satisfied that, in anticipation of the children spending half of the long summer holidays with each of the father and the mother in 2018/2019, a two week period in the 2017/2018 long summer holidays is appropriate. In circumstances where I propose to order that the children spend 14 nights with the father commencing at the conclusion of the last day of school term and thereafter 14 nights with the mother, I am satisfied that the balance of the holidays should be divided equally with the father to have the first half of the remaining period. This will ensure that the children are in the mother’s care immediately prior to the commencement of the school year. The time the father spends with the children from the conclusion of the school year will also be subject to the orders with respect to the time the children spend with each parent over the Christmas period.
It follows that until the long summer holidays in 2017/2018 the longest period the children will be spending with the father and the mother during school holiday periods will be half of the school term holidays, which is about the same amount of time between visits with the father during school term and thus not out of the ordinary for the children. Although the time away from the mother will be somewhat more than they are used to, the mother does not seek orders permitting her to telephone the children during these periods.
Although there may be benefits for the children in keeping in contact with each parent whilst they are not in their care and I am mindful of the fact that pursuant to the orders I propose to make there will be a period of 10 days during term time and eventually extended holiday periods when the children do not see and therefore do not speak to the father, I also have significant reservations about the father being able to maintain child focused communication free from the “parental dispute” and am concerned that the proposed telephone time is likely to increasingly intrude not only on the children’s schedules but, given the father’s lack of boundaries and his difficulty observing those boundaries that are put in place, that it also has the potential to intrude upon the children’s time with the mother. That being said I propose to order that the parties facilitate telephone time by the children with the other parent when reasonably requested by the children.
The father and mother could also not agree upon whether, if the children were hospitalised, the father should be permitted to visit them in hospital. Although hopefully neither of the children will require hospitalisation, it is in my view necessary in this case to make provision for that possibility. The father proposed, he said having regard to Ms K’s response to a question in relation to this issue, the following order:
In the event of either child being hospitalised the parents shall inform each other immediately and provide the hospital details and both parents are permitted to attend and visit same. Both parents are to adhere to the treating practitioners [sic] requests.
(original emphasis)
The fact that the father suggested that his proposed order reflected the recommendations made by Ms K is yet another example of the father either misconceiving the evidence or choosing to focus on those parts of the evidence that suit his case with little real reflection upon the totality of the evidence. Ms K’s answer to the question she was asked about the father and the mother visiting the children in hospital was as follows:
This would be dependent on whether such attendance in any way causes or has the potential to cause stress upon the child or impede their medical recovery in any way. Given the current circumstances, consideration may need to be made towards separate visitation. Albeit, if the parents are able to set aside their differences on each/any occasion, for the best interest of the child, and their presence together in no way exacerbates the child’s emotional or physical difficulties, then such should be seriously considered.
I am satisfied, having regard to Ms K’s observations of the children’s interaction with both the father and the mother, that in a perfect world they would benefit from having both of their parents visit them if they were to be hospitalised and that in that same perfect world that would also include the father and mother being able to visit at the same time. However, given my findings about the father’s behaviour and how that impacts upon the mother and the level of her anxiety and the potential risks this presents for the children, I am satisfied that arrangements need to be made for separate visits. I am also satisfied that given the father’s lack of boundaries and unwillingness to observe boundaries when it does not suit him that there needs to be time limits on the father’s visits and that in order to avoid the parties coming into contact with each other the times for the father’s visits need to be nominated by the mother so that there is no room for any debate. I propose to make an order that the father be permitted to visit the children for up to two hours at times to be nominated by the mother. Any arrangements the parties might make must also of necessity be subject to the directions of both the hospital and the children’s treating doctors.
The parties also cannot agree about where and how changeover should occur in the event that it does not occur at school. Although this will be relatively infrequent, again it is in my view necessary, to avoid any room for debate or for that matter dispute, to make orders with respect to the changeover. The father’s case was that when not at school changeover should occur at the car park of McDonald’s in Suburb I. The mother’s case was that changeover should be facilitated by Contact Centre E and that if Contact Centre E is not available changeover should occur at some other contact centre or be facilitated by an independent supervisor paid for by the father. Ms K opined as follows:
As indicated within the previous Family Report, changeover between the parents will likely need to occur initially through a third party, given the level of parental conflict and acrimony assessed between them. This will be critical in limiting the children’s exposure to any ongoing parental hostility. Changeover directly between the parents should only be considered when the benefits outweigh the potential detriment or cost of exposure to parental tensions, or when such acrimony dissipates.
When not possible at school or another activity attended by the children, a contact service or private supervisor may initially be required. However, this may not be sustainable long-term (beyond 2016), either practically or financially. Thus, the parents may need to work towards achieving an alternate arrangement (in the absence of risk or exposing the children to conflict). Such venues as a McDonalds type establishment, that is not limited by trading hour restrictions, and which is fairly public, may be preferable. Alternatively, the use of friends or family members may also be an option (where available).
I am satisfied that at least initially changeovers, when they cannot occur at school, should either take place at Contact Centre E or if Contact Centre E is not available some other contact centre as may be agreed upon by the father and the mother or if one is not available or they cannot agree by an independent contact supervisor. Although the mother proposed that she and the father share the cost of changeover at Contact Centre E, it was her proposal that if Contact Centre E was not available and the parties had to use the services of either another contact centre or an independent supervisor that the father should meet the costs of same. The reason for the mother’s proposal in this regard is not clear. I am not satisfied that in circumstances where it was intended that the parties share the costs of changeover but that service is not available, through no fault of the father’s that he should then be required to meet all of the cost of an alternative service or independent supervisor. Most changeovers will take place at school. The changeovers which require either the services of another contact service or an independent supervisor will be limited to school holidays and some special occasions such as Easter and Christmas. The cost in those circumstances is not likely to be prohibitive for either party and should be shared.
Although I do not necessarily agree with Ms K that supervised changeovers would not be sustainable financially in the long term, I am however satisfied that the requirement for supervised changeovers should not be for an indefinite period. The children are now almost seven and six respectively. In my view they are likely, as they grow up, to become increasingly conscious of the presence of a supervisor at changeover and the message that sends. Changeover at a Police Station would send a similar message. In all of the circumstances I am satisfied that until the end of 2018 when changeovers cannot take place at school they should be supervised as proposed by the mother. Thereafter changeovers when not at school should take place at a McDonald’s or like establishment to be nominated by the mother. I am satisfied that if the parties and in particular the father adhere faithfully to the terms of these orders and there are no further proceedings they should be able to effect the changeover on those few occasions when it cannot take place at school without the necessity of supervision and without placing the welfare of the children at risk.
The father also proposed that if the children’s birthdays fell on a weekend that they should spend from 12.00 pm until 5.00 pm with him. Although it was the mother’s case that there should be no provision for time on the children’s birthdays for either herself or the father, I, like Ms K, see no real reason why they should not spend some time with each of their parents on those occasions when their birthday falls on a weekend. Although I propose to make an order for birthday time for the children with both the father and the mother, I do not agree that it should be as proposed by the father. In my view a more practical arrangement would be for the children to spend four hours with either the father or the mother, to be from either 10.00 am until 2.00 pm or from 3.00 pm to 7.00 pm, to be nominated on each occasion by the mother allowing each parent to have a birthday meal with the children.
There was also some dispute between the parties as to how they should communicate and in particular whether the father’s communication with the mother should be limited to text messages, which was proposed by the mother, or whether it should also include email. In circumstances where the father has been convicted of breaching an Intervention Order for sending the mother email messages not related to the children’s welfare, I am satisfied that it would not be appropriate for the father to communicate with the mother by email. This is particularly so given the father’s lack of boundaries and in particular in circumstances where notwithstanding that the father could have been left in no doubt about the mother’s reaction to any suggestion of a reconciliation, he has persisted over many years, firstly in emails to the mother following separation, during sessions with both Mr S and Ms K, in his Affidavits and ultimately in oral evidence before me to refer to the possibility and/or his desire to be a family once more. I am not satisfied that if the father were to be permitted to send the mother emails he would be able to limit himself to issues relating to the children’s welfare. Although arguably the mother’s concerns about emails might equally apply to text messages I am satisfied that in all of the circumstances of this case and the history of the matter I should accede to the mother’s application and that the parties should only communicate in relation to issues directly related to the children’s welfare such as any changes that need to be made with respect to the father’s time with the children and health issues such as instructions with respect to medication the children have been prescribed or are required to take and that the communication should be by text message. Any direct telephone contact between the parties should be limited to an emergency.
At the commencement of the hearing the mother also sought an order that the father be restrained from publishing, printing, or otherwise disseminating images of photographs of the children, or references to the children on social media, print media or any other electronic or publicly accessible devices/forums/platforms. This was another example of the father’s lack of boundaries. I am satisfied that amongst other things the father allowed the children to have their photograph taken and that photograph to be published in a daily newspaper contrary to the mother’s express request that he not do so. The father was also reluctant to put in place the necessary security settings on his Facebook page to prevent strangers accessing his Facebook account in circumstances where he had posted photographs of the children on his Facebook page.
The order the mother ultimately sought was not as broad in terms as that in her minute of proposed orders and was directed to the father using security settings, not publishing photographs of the children on his Facebook profile page or cover photo and removing from his Facebook page historical cover photos or profile pictures which include the children. This would allow the father to post photographs on his Facebook page subject to him maintaining the appropriate security settings limiting access to those photographs to his friends on Facebook. Although the father ultimately said he did not object to using security settings on his social media, he did express some reservations about an order restraining him from posting photographs of the children on his profile page or cover photo which is more readily accessible. The father’s evidence in relation to these issues left me with the distinct impression that notwithstanding he said he did not object to using the security settings, he did not really accept the mother’s concerns regarding this issue and that he had and was likely to continue to disregard any concerns she might have about the children’s safety because of his actions. I am not particularly confident that despite what he says the father will maintain the security settings once beyond the scrutiny of the Court. I also propose to make the order sought by the Independent Children’s Lawyer restraining the father from opening Facebook accounts in the names of the children or either of them.
The father also did not address the order the mother sought restraining him from having the children assessed, reviewed or examined by any counsellor, psychologist or other specialist. Although the mother has sole parental responsibility and should on that basis be the person responsible for these decisions, given my findings with respect to the father’s attempts to involve Mr EE in the case I propose to accede to the mother’s application.
Based upon the evidence of the father having discussed the proceedings and shown documents to school teachers and the like I also propose to make the order the mother seeks restraining the father from communicating by any means information in relation to these proceedings. I am satisfied that both these orders are necessary for and in the children’s best interests.
As previously referred to the father said that he disagreed with paragraphs 11 – 15 of the mother’s minute of orders however he did not address these issues in any detail. Doing the best I can on the evidence before me I am satisfied, in all of the circumstances of this case, that those orders with the exception of paragraph 14 are in the children’s best interests. The mother in this case has sole parental responsibility for these children and in my view should have some input into what if any extracurricular activities the children are enrolled in whether or not those activities take place during the father’s time or not. That is particularly so in circumstances where the father has taken it upon himself to enrol the children in activities without either discussion or obtaining the mother’s consent presenting that as a fait accompli to the mother.
It is in my view also appropriate for the parents to keep each other advised in relation to any invitations for parties or special events during the other parent’s time leaving it to that parent to respond as they may choose. It is similarly appropriate in my view for the parties to keep each other advised of any illness or injury the children have sustained whilst in their care together with particulars of their treatment. I am also satisfied that the parties should inform each other if they intend to take the children out of the State of Victoria.
Where there was no dispute I otherwise propose to make orders in the terms the mother seeks including provisions for Christmas, Easter, the D Club Family Day and Grand Final Day if D Club is in the Grand Final, restraints on the parties denigrating the other, restraints on the father’s consumption of alcohol and other drugs while the children are in his care and the father’s proposed participation in the children’s therapy with Ms H.
Finally, I am not satisfied on the evidence before me that it is necessary or that it would be proper to make an order requiring the father to keep the mother advised of any prescription anti-depressant medication he might be taking or to provide such information as she may request from time to time.

I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan J delivered on 29 September 2016.

Associate:

Date: 29 September 2016