Nolan and Nolan

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOLAN & NOLAN

[2014] FCCA 2652

Catchwords:
FAMILY LAW – Parenting – consideration of whether the father is an unacceptable risk to the children – whether the father has emotional/mental health issues – father’s alcohol issues – unchallenged evidence of the mother, her witness and expert witnesses – onus on father to receive therapeutic assistance – no orders between three children aged 9, 5 and 3 years and father – limited written communication.

Legislation:

Family Law Act 1975

Adamson & Adamson [2014] FamCAFC 232
Carlson & Fluvium [2012] FamCA 32
Champness & Hanson [2009] FamCAFC 96
K & B (1994) FLC 92-478
M & M (1998) FLC 91-979
Marsden & Winch (No.3) [2007] FamCA 1364
Mulvany & Lane [2009] FamCAFC 76
PST & CPR [2006] FMCAfam 36
R & R: Children’s wishes (2000) FLC 93-000
Re: C & J (1996) FLC 92-697
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Re: L (Contact; Domestic Violence) (2000) 2 FLR 334
Re W [2004] FamCA 768

Applicant:

MR NOLAN

Respondent:

MS NOLAN

File Number:

MLC 4737 of 2013

Judgment of:

Judge McGuire

Hearing date:

28 August 2014

Date of Last Submission:

28 August 2014

Delivered at:

Melbourne

Delivered on:

11 December 2014

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr D Sweeney

Solicitors for the Respondent:

Schetzer Constantinou

ORDERS

That all extant orders in respect of the children [X] born [omitted] 2004 (“[X]”), [Y] born [omitted] 2009 (“[Y]”) and [Z] born [omitted] 2011(“[Z]”) be discharged.
That the mother have sole parental responsibility for [X], [Y] and [Z].
That [X], [Y] and [Z] live with the mother.
That time between the father and [X], [Y] and [Z] be reserved.
That communication between the father and [X], [Y] and [Z] take place only by letter, card or gift on one occasion only each calendar month and at Christmas, Easter, each child’s birthday and on the father’s birthday with the mother to pass such communications onto the children but that she be able to vet the communications and at her discretion refuse to pass them onto the children provided that if such communication is not passed onto the children then the mother notify the father accordingly within seven days and the father be able to provide substitute communication for that month and that the mother encourage and assist the children in making prudent response to the father each month.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4737 of 2013

MR NOLAN

Applicant

And

MS NOLAN

Respondent

REASONS FOR JUDGMENT

Applications

These proceedings concern the parties’ three children:
·[X] born [in] 2004 (aged nine years);
·[Y] born [in] 2009 (aged five years);
·[Z] born [in] 2011 (aged three years).
The father is the applicant. He seeks orders whereby he has the children with him each second weekend, for half of school holidays and telephone communication on Tuesdays and Thursdays. In his opening remarks the father told the Court that he wanted “to be involved in decisions in respect to the children’s education, extracurricular activities and to be notified of serious medical issues”. I infer that he seeks an order for equal shared parental responsibility.
The father represented himself at the trial. He did so in a courteous manner. Prior to the taking of evidence, the Court took time to explain the procedure to Mr Nolan and invited him to seek assistance in this regard at any time. The Court ensured that he was provided with copies of the relevant legislation.[1] Mr Nolan had been represented by solicitors and counsel during the interim and interlocutory stages of the proceedings.
[1] Re F: Litigants in Person Guidelines (2001) FLC 93-072
The wife was represented by counsel and solicitors. She seeks sole parental responsibility for the three children and that they live with her. She argues that the children spend no time and have no communication with the father. Although she proposes final orders, the wife’s argument is clearly couched on the basis that she concedes the likelihood of future direct time and communication between the father and the children should he be able to provide satisfactory psychiatric evidence in respect of his mental health.
The children do not currently have direct time with their father. They do have telephone communications.

Issues

The primary issue before me is the father’s capacity to care for the children and, in particular, his mental health.
The mother argues that the father suffers from or exhibits symptoms of a mental or emotional illness and/or a personality disorder. She says that this puts the children at risk either physically, emotionally or psychologically in the father’s care or, at least, in the context of the orders he seeks. She particularises manifestations of Mr Nolan’s historical behaviour. She says that her fears are corroborated by lay and expert witnesses. She says that Mr Nolan needs informed psychiatric therapy and assessment prior to enjoying any usual relationship with the children.
Secondly, she argues that Mr Nolan is alcohol-dependant and that this condition is related to his behavioural idiosyncrasies.
The mother says that Mr Nolan lacks insight into his personal and psychiatric difficulties. She says that he is forensically and socially manipulative and that he is dishonest in any alleged acknowledgements and/or remorse in respect of his past behaviour.
Mr Nolan says that it is he who is a victim of a manipulative mother whose aim is to thwart his relationship with his children. He says that she lies, exaggerates and/or embellishes his behaviour. He says that he suffers no emotional illness and relies on expert evidence in support. He says that he has previously enjoyed a close, loving and active relationship with his children. He says that the children still want to have a relationship with him.
Mr Nolan alleges conspiracy between the mother and her corroborative witness, Ms E. Ms E is Mr Nolan’s most recent former partner. The implication is that both women have conspired against him maliciously and each for their own ends.
The parties each put the credit of the other (and the mother’s witness) at issue. It is proper, therefore, I mention a very recent decision of the Full Court in Adamson & Adamson[2] where their honours adopted the comments of Kent J at first instance in Carlson & Fluvium[3] where his Honour observed in respect of matters of credit:
As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
166. To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.
167. Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to the legitimate rights of review of that decision on appeal.
These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[2] [2014] FamCAFC 232
[3] [2012] FamCA 32
Whilst respectfully acknowledging the comments of their Honours in Adamson, this matter is one of those where disputed fact and credit are inherently intertwined and at the very crux of each party’s argument against the other. To put it bluntly, there are no grey areas and one of these parties is being fundamentally untruthful. It is a matter which turns on the very findings of credit which I am obliged to make.

Background

The wife is 42 years of age. The husband is 41. They commenced cohabitation in 2000 and married on [omitted] 2003. Separation occurred in August 2012 and they were divorced on 6 May 2014.
There followed an agreement between the parties that the father would spend time with the children on Mondays and Thursdays between 3.30 pm and 9 pm together with each Saturday between 11 am and 11 pm. That time was to take place in the former matrimonial home with the mother absenting herself during those periods. There was regular and open telephone communication between the father and the children.
On 13 October 2012 the mother applied for an interim intervention order on the grounds of harassment and abuse from the father. The father consented to the orders without admissions.
In early November 2012 the parties first attended on Mr P, psychologist, for the purposes of agreeing and implementing a parenting regime to be regularly reviewed with the assistance of Mr P.
On 16 November 2012 the father executed a parenting agreement whereby, on an interim basis, he would spend time with all three children each Monday and Thursday from 3.30 pm until 6.30 pm and time with [Y] and [Z] each Saturday from 9.30 am until 12.30 pm and with [X] from 12.30 pm until 5 pm. That document also contained personal undertakings from Mr Nolan not to engage the mother at changeovers and not to question the children in respect of the mother or legal matters.
On 11 December 2012 there was an incident at [X]’s school Carols by Candlelight function including an alleged physical altercation between the father and an off-duty policeman.
On 13 March 2013 the father consented to a further intervention order in favour of the mother. The children were included on the order but it did not preclude contact between father and children.
The father agreed to a psychiatric assessment which was provided in a report of 11 June 2013 by Dr C.
In an application filed 14 June 2013 the father commenced proceedings in respect of children and for property settlement. In that application he conceded that the children live primarily with the mother but sought equal shared parental responsibility and time with the children inter alia each second weekend and on each Wednesday overnight.
On the first listing of the matter on 24 July 2013 consent orders were made inter alia for the children to spend time with the father for three hours per week on a Saturday or Sunday such time to be supervised by [A] Community Services. There was an order for the father to attend upon a psychiatrist for assessment and report and an order that the parties attend upon Mr P for the preparation of a family report.
On 25 November 2013 an injunctive order was made by consent preventing the father from communicating or spending time with the children other than in the strict terms of the orders of 24 July.
On 24 November 2013 [A] Community Services released a report in respect of the children’s supervised time with the father.
On 2 December 2013 consent orders were made in respect of financial matters between the parties.
On 4 December 2013 Uniting Care “[K]” issued the father with a Notice of Completion in respect of his attendance at a family violence/anger management program.
On 5 December 2013 the father was charged with 12 counts of contravention of the intervention order and the magistrate proceeded to make findings against the father but without conviction and with a fine imposed.
Mr P’s first family report was released 3 February 2014 with an addendum of 5 February.
On 10 February 2014 Judge Altobelli fixed the application for a trial in this Court on 28 August 2014.
On 11 February 2014 the father’s then partner, Ms E, obtained an intervention order against him.
On 20 March 2014 Dr D psychiatrist provided a psychiatric assessment and report on the father.
On 31 March 2014 [A] Community Services released a further report as to ongoing supervised time between the children and the father.
On 3 April 2013 the father brought a further interim application before me seeking unsupervised time with the children. On 10 April 2014, I handed down my orders and reasons providing inter alia:
a)until further order, the children [X], [Y] and [Z] spend time with the father as follows:
i)until 1 June 2014 for a maximum of three hours per week on a Saturday or Sunday with such day to be nominated, in the absence of agreement, by [A] Community Services and that all changeovers to occur under the supervision of [A] Community Services;
ii)thereafter for a maximum of eight hours per week on a Saturday or Sunday with the changeovers to be supervised by [A] Community Services;
iii)that the father be restrained from consuming alcohol for a period of 12 hours before the children come into his care.
On 8 May 2014 the mother filed a further application seeking to suspend time for the children with the father.
On 29 May 2014 the father was convicted of contravening a family violence intervention order and sentenced to a community corrections order for a period of 12 months.
On 14 July 2014 the father became self-represented.
On 21 July 2014, after a further interim hearing, I made orders suspending the children’s time with the father. The orders for telephone communication continued. In making such orders I was persuaded in large part by the father’s failure to disclose material facts on the previous interim hearing.
On 13 August 2014 an updated family report was released by Mr P.

The evidence

The applicant father relied on four affidavits filed 11 June 2013, 20 November 2013 and 19 August 2014 (two affidavits). The report of Dr C, psychiatrist, is annexed to the affidavit of 11 June 2013. No application was made to cross-examine Dr C.
The respondent mother relied on her four affidavits filed 22 July 2013, 6 November 2013, 7 August 2014, and 20 August 2014. She also adduced evidence from Ms E in an affidavit sworn 7 August 2014.
The applicant father elected not to cross-examine either the mother or Ms E.
I also had before me the following:
·a report of Dr D, consultant psychiatrist, dated 20 March 2014 being an assessment in respect of both the father and the mother;
·a letter of 4 December 2013 from Uniting Care “[K]” together with a [K] file in respect of the father’s attendance at the Men’s Behaviour Change Program;
·reports from [A] Community Services in respect of supervised time between the father and the children.
None of the authors of the above material was required by either party for cross-examination.
The Court also had the benefit of two family reports dated 3 February 2014 and 28 August 2014. Neither party required Mr P for cross-examination.
Consequently, the above material was read into evidence without the authors being tested by cross-examination.

The relevant legal principles

Pursuant to section 60CA of the Family Law Act 1975 (“the Act”), I am to have the best interests of [X], [Y] and [Z] as my paramount consideration.
The Court determines children’s best interests by reference to the objects and principles of the relevant part of the Act as provided in section 60B and also by a pragmatic reference of the probative evidence and the proposals of the parties to numerous mandatory considerations set out in section 60CC(2) and (3) of the Act.
Section 60B sets out the objects and principles as follows:
The objects of this Part are to ensure that the best interests of children are met by:
(i)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(ii)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(iii)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(iv)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The mother argues for an order that she have sole parental responsibility for the three children. The Act at section 61DA provides a presumption of equal shared parental responsibility. That presumption, however, does not apply if there are reasonable grounds to believe that a parent of the child has engaged in either abuse of the child or another child who at the time was a member of that parent’s family or in family violence within the broad definition of the Act. Alternatively the presumption of equal shared responsibility may be rebutted by evidence satisfying the Court that it is not in the best interests of the children for their parents to exercise equal shared parental responsibility.
The father proposes that there be equal shared parental responsibility.
Section 61B defines “parental responsibility” as all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Such responsibility usually manifests in the longer term decisions that parents make for children in respect of matters such as education, religion, medical procedure and the like.
If the presumption of equal shared responsibility applies and is not rebutted or if the Court determines to make an order for equal shared parental responsibility then a mandatory pathway of consideration as to the children’s parenting and living regime applies. Firstly the Court must consider whether it is both in the children’s best interests and reasonably practicable for them to live in an equal time relationship between their parents.[4] If the answer to either of those questions is in the negative then the Court turns to consider whether the children spending “substantial and significant” time between their parents is both in their best interests and reasonably practicable.[5] “Substantial and significant time” includes time for children with parents on both weekends and weekdays and anticipates children and parents being involved in mutually important events.[6]
[4] Section 65DAA(1) of the Act, MRR & GR (2010) 240 CLR 461.
[5] Section 65DAA(2).
[6] Section 65DAA(3).

Consequently, a determination of the children’s best interests can be relevant to the issue of parental responsibility and also to the regime of time for children between their parents.
The factors that the Court must address in respect of the parents’ proposals and the probative evidence in section 60CC are the following:
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations are:
a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
b)the nature of the relationship of the child with:
i)each of the child’s parents; and
ii)other persons (including any grandparent or other relative of the child);
c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
i)to participate in making decisions about major long‑term issues in relation to the child; and
ii)to spend time with the child; and
iii)to communicate with the child;
ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
i)either of his or her parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
i)each of the child’s parents; and
ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j)any family violence involving the child or a member of the child’s family;
k)if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
i)the nature of the order;
ii)the circumstances in which the order was made;
iii)any evidence admitted in proceedings for the order;
iv)any findings made by the Court in, or in proceedings for, that order;
v)any other relevant matter;
l)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;
m)any other fact or circumstance that the Court thinks is relevant.
Although the considerations are divided into “primary” and “additional”, the two primary considerations are not determinative[7] of any proceedings. They do, of course, as in the matter now before me, often assume substantial importance and lawyers sometimes refer to them as the “twin pillars”.
[7] Champness & Hanson [2009] FamCAFC 96
In this matter the father emphasises that it is in the children’s best interests for them to have a meaningful relationship with him and that the mother acts contrary to that occurring. Conversely, the mother emphasises that the father has been violent and that his behaviour, personality, and mental health combine as an unacceptable risk for the children spending time with him. Recent amendments to the Act at s.60CC(2A) obligate a trial judge as follows;
In applying the considerations set out in (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).
Regardless of that subsection the task for the court is to receive the evidence and attribute weight accordingly with reference to all the various subsections above and then, on balance, make orders which the court considers to be in the children’s best interests.
As such, the observations of the Full Court in Marsden & Winch[8] remain pertinent at 77;
The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine every outcome in every case. Not only must the “additional” considerations be taken in to account, but the two “primary’ considerations themselves may tend in different directions. That is to say, whilst there may be a great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with such a relationship.
[8] (No 3) [2007] FamCA 1364
Further emphasising the weighing and balancing process of the Court and that no consideration be determinative, the Full Court in Champness & Hanson[9] stated:
The submissions of Counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the Orders mostly likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make Orders most likely to promote the child’s best interests. In seeking to achieve that objective, s.60CC(2)(a) directs the court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.[10]
[9] Supra at 103
[10] See also Mulvany & Lane [2009] FamCAFC 76 at 76
The terms “family violence” and “abuse” feature in s.60CC(2)(b). Such terms are often misunderstood by laypersons in their breadth of definition in the Family Law Act which feature at s.4AB(1) as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The mother in this matter seeks orders which would provide no time or communication between the children and their father. To make such orders the Court must be satisfied that there is either no benefit for the children in a relationship with their father or that such a relationship poses an unacceptable risk of harm to them, be that physical, moral or emotional/psychological.
The wording and the tenor of the Act is that children, subject to their best interests, have a right to enjoy a meaningful and fruitful relationship with each of their parents. It follows that cessation of a parent/child relationship is usually a course of last resort.[11] Thus the importance placed by the Act and the authorities on children maintaining relationships, and hence regular contact, with parents imposes an obligation for judges to consider all options, including the placing of conditions or limitations on such contact in order to maintain it for the benefit of children. The placing of a condition of supervision, or even limiting communications to telephone calls, letters/cards, emails and photographs is not uncommon.
[11] Re W [2004] FamCA 768
Nevertheless, it would ordinarily not be in the interests of children to spend unsupervised and unconditional time with parents who pose an unacceptable risk to them. Each case, of course, turns on its own facts and history in determining “risk” which, by its very nature, is a prospective notion summed up insightfully by Federal Magistrate Walters (as he then was) in PST & CPR[12]
In my opinion, that which converts an unacceptable risk to an acceptable risk is often little more than confidence on the part of the Court that the contact parent will comply with such orders as it is minded to make in order to protect the child.
[12] [2006] FMCAfam 36
Judicial discussion in respect of unacceptable risk often involves matters of alleged sexual abuse. But the principles hold true for considerations of physical, emotional, or psychological abuse. The High Court in M & M[13] observed:
Efforts to define with greater precision the magnitude of the risk which will justify a Court in denying a parent access to a child have resulted in a variety of formulations… This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests, the courts have endeavoured in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from (sexual) abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of (sexual) abuse.
[13] 1998] FLC 91-979
In an English judgment of Re: L (Contact; Domestic Violence) [14] Dame Elizabeth Butler-Schloss stated:
In cases that proved that domestic violence, and in cases of other proved harm or risk to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors, if any, of contact between the parent found to be violent and the child. In this context the ability of the offending parent to recognise his past conduct, to be aware of the need to change and to make genuine efforts to do so, will be likely to be an important consideration.
[14] (2000) 2 FLR 334
Her Honour’s comments are particularly pertinent to the mother’s argument here. She does not allege that the father has been physically violent to the children. Her allegations in respect of [X] extend only to inappropriate comments over the telephone. The mother’s argument is that the father’s psychological demeanour is volatile and unpredictable. She says that his behaviour is manipulative and threatening. She says that it is his inability to accept the end of the relationship with her and with Ms E that manifests in behaviour such that if repeated whilst the children were in his care then would present a risk to the children. She says that he has not honestly and legitimately acknowledged the nature or impact of his behaviour and lacks insight into its effect on others. She says that only psychological intervention and therapy will give the father that insight and hence satisfy her that the children would not be at risk. This, therefore, is the task for the court to establish whether the mother’s assertions are made out on the evidence on the balance of probabilities and, if so, whether that transfers to a risk to the children.
As Kay J noted in K & B[15] the mere existence of a possible threat to a child is insufficient justification to disrupt the parent/child relationship.
[15] (1994) FLC 92-478

The father’s evidence

Mr Nolan presented as an intelligent and articulate individual. His case consistently was that the mother has an agenda to thwart his relationship with his three children. He denied generally the allegations of harassing behaviour. In cross-examination he was able to give explanations for his behaviour which appeared plausible. Nevertheless, I observed him to be often evasive and contradictory in his evidence and responses in cross-examination and in particular as to his history of alcohol use or abuse. This, of course, is a feature of the mother’s allegations. Mr Nolan gave varying responses painting a contradictory picture of his history of alcohol use. He now acknowledges insight and acceptance that he has been a heavy drinker and had a problem. His previous denials in affidavits do not sit easily with these acknowledgements. The nature of his evidence taken as a whole, however, is consistent with the assertions of the mother and the observations of Mr P that the father is prepared to make statements or admissions which might suit his case but contrary to empirical facts. For example, his latest affidavit acknowledges that he had a drinking problem and that this had a causal relationship to his behaviour. He was cross-examined extensively or to the veracity of this apparent recent insight together with his recent drinking habits right up to the evening before the trial. His evidence in respect of the latter was enlightening in its evasion and variation of responses. His confidence in the presentation of these answers, often contradictory, was equally revealing. I was left the clear impression of, firstly, someone who continued to consume alcohol to a significant degree but, secondly of a man who did not, in fact, acknowledge or have insight into the very issues argued against him seeing his children. It follows that, with the benefit of his responses in cross-examination together with my observations of his demeanour, I cannot accept the veracity of this part of his affidavit evidence.
Similarly his evidence in respect of the allegations of Ms E which involve some bizarre particulars, such as Mr Nolan sending embarrassing and intimate material to her employer, damaging her motor vehicle, lighting a fire and retaining one of each of her eight pairs of shoes was generally unconvincing.
Mr Nolan was also challenged as to the circumstances of him allegedly secretly recording an interview with Mr P for the family report. His suggestion that Mr P was well aware of the positioning of the tape recorder rapidly fell over in cross-examination. This was a prime example of Mr Nolan's preparedness to give evasive and contradictory evidence, although he persisted in doing so in a confident manner.
Similarly, he was able to give plausible and ready explanations to allegations of his improper telephone communications with [X] and him presenting personal and intimate photographic/video material to the mother following a joint interview with Mr P.
Generally I found Mr Nolan to be an unsatisfactory witness and not one of the truth. His responses and explanations were plausible only by reason of his confidence in the witness box. I prefer, however, that his evidence was consistent with the assertions of the mother, her witness and Mr P of him being a manipulative and empowered individual ready and willing to offer plausible but false explanations for his behaviour. It follows that the potential impact of his personality traits, alcohol use and behaviour is compounded in its risk factor by his persistent deflection of blame to others and his own lack of honest acknowledgement.

The mother's evidence

The issues here involving the court's finding as to whether or not the father presents an unacceptable risk to the children revolve around matters of credit between the parties. Consequently, the father's decision not to cross-examine the mother, Ms E or Mr P complicate (or perhaps simplify) that task for the court. Suffice to say, the factual assertions of the mother, her witness and the family reporter are unchallenged and should thus be given appropriate weight unless they are otherwise inherently unbelievable or nonsense.
The mother's affidavits paint a picture of Mr Nolan as a man addicted to and highly influenced by alcohol. She particularises the level of his drinking during the relationship and his consequent behaviour. She asserts harassment and abuse following separation and again particularises those allegations. She details the background to her obtaining state court intervention orders and Mr Nolan's subsequent breaches of those orders. She says that Mr Nolan discussed inappropriate topics with [X] during telephone communications. She details an incident of Mr Nolan's inappropriate behaviour at [X]'s school event. She says that she was intimidated by him threatening to publish private photographs and video of her taken without her consent or knowledge. She transcribes conversations between Mr Nolan and [X] which, if accurate, show him inappropriately eliciting sympathy from his daughter. She paints a picture of an empowered individual either unable or unwilling to acknowledge his personality and addiction faults or their effect on others.
The mother's chronological affidavit material supports her concerns as to his manipulative behaviour. Specifically, she was required to bring a further interim application to this court by reason of what she says was the father's deliberate omission of probative evidence in a previous interim application, being that he had been charged with breach of intervention orders taken out by Ms E. Such evidence was clearly corroborative of the mother's own argument. The mother's position is appropriately summarised at paragraph 35 of her trial affidavit of 20 August 2014, as follows:
The applicant is an alcoholic, who denies same. He is irresponsible, erratic and subject to brain snaps both whilst we were married and after. He has behaved extremely inappropriately in front of the children and in front of the children's peers. He has lost his job and has told [X] that he won't be applying for any other job until after the family law matter is concluded. He has no respect for the law. He has lost his licence, and he has shown no ability to learn from any mistakes he has made, and, in fact, has gone on to repeat similar behaviour within the space of a year. He has no compunction in presenting himself as being truthful and as the victim in this scenario, however has not been able to disguise his emotive and unregulated behaviours.
I am deeply concerned that since the reinstatement of telephone contact with [X] the applicant has told her that she will soon be able to come and spend nights at his place and that they will not need to go into after school care very soon because he will be caring for them. The applicant has no comprehension of the level of concern his behaviours, whether to me or to other people, have created.

The mother's evidence is unchallenged. I attribute considerable weight to that evidence given that it is corroborated by other evidence also unchallenged.

Evidence of Ms E

Ms E deposes that she met Mr Nolan around June 2013. The relationship ended in January 2014. Her evidence is contrary to that of Mr Nolan, who says that the relationship ended because Ms E sought marriage and children with him but that her desires were unrequited.
Ms E deposes that Mr Nolan "drank alcohol to excess each day I was with him". She says that she confronted him about his drinking and that he would apologise profusely and promise to get help. She says that he blamed his excessive drinking on the demise of his marriage.
At paragraph 9 of her affidavit Ms E deposes:
The Jekyll/Hyde part of his personality came out in spurts of craziness, not necessarily sparked by his drinking, when, out of nowhere, his entire personality would change, and he would become abusive and needy and blaming of me and the things I had or had not done for him. He was vengeful, vindictive and childish.
Ms E says that she determined to separate from Mr Nolan in January 2014 but they continued to live in the same residence. She says that his behaviour then deteriorated. She alleges that the tyres on her car were slashed. She said that fires were lit around her car. She says that her privacy was infringed. She obtained an intervention order in February 2014 and left the home. She says that Mr Nolan bizarrely kept her personalty including one of each of her pairs of shoes. She says that Mr Nolan sent a photograph of her vibrator to her employer. She deposes that Mr Nolan was charged with breaching the intervention order and remanded in custody for five days.
Ms E's evidence in its particulars corroborates that of the mother.

Mr Nolan, however, chose not to cross-examine Ms E in support of his general claim that she and the mother have conspired against him for their own ends.
Whilst I obviously did not have the benefit of seeing and hearing

Ms E's evidence tested, it does corroborate that of the mother, and in that sense I accept her unchallenged evidence.

Mr P - the family reporter

Mr P was not tested by either party as to his evidence. He had the advantage of three separate sets of interviews with the parents. Firstly, he assisted them in the preparation of a parenting plan following separation. He then prepared two family reports. Mr P's observations of Mr Nolan differ. In the first and third interviews he observed

Mr Nolan as a stressed, aroused and agitated individual. In the second interview, Mr Nolan presented with a more calm demeanour.
Mr P also interviewed [X] on two occasions. He confirms that [X] wants a relationship with her father but those interviews also corroborate the mother's fears as to an over-involvement of [X] by

Mr Nolan in adult issues.
Mr Nolan consistently confirmed to Mr P that he saw himself as the victim of Ms Nolan's manipulation. Mr P reported Mr Nolan's ability to give plausible explanations to the allegations made against him by both Ms Nolan and Ms E. At paragraph 11 of his final report Mr P says:
It is possible that Ms E is the manipulative, dishonest, vindictive person alleged by Mr Nolan, and that she, in fact, did act out of spite and vindictiveness because of his refusal to marry her and have children with her. It is, of course, also possible that Ms E is the victim of a campaign of aggression, violence and manipulation by Mr Nolan, and that his attack on her is, in fact, a distraction by him from his own behaviour, and that his actions towards her are profoundly similar to the abuse allegedly endured by Ms Nolan.
And at paragraph 13 of that report Mr P observes:
The theme that emerged was one of continuous minimisation and rationalisation, with multiple reasons, explanations and excuses for what happened. It may, of course, be that he is the unfortunate victim of circumstances. The alternative is that Mr Nolan is directly the architect of his own demise, that he has acted in this aggressive, violent, abusive manner alleged by both Ms E and Ms Nolan before her, that he has continued to show a reckless disregard for court orders and that the breach of intervention order reflects a persistent antisocial theme to his behaviour.
Whilst it is perhaps only important in its corroboration of the other allegations against Mr Nolan, Mr P denies any knowledge of his interview being recorded by Mr Nolan.
At paragraph 50 of that report Mr P comments:
Whilst on the one hand, a testing of evidence, and in particular some unpacking of what has been alleged of him by Mrs Nolan, Ms E and by the police, will be important, I can also comment directly upon my direct observations of Mr Nolan. There is a superficiality to his presentation, an inflated sense of circumstances in his life and how things are going. His justification for audio-taping our sessions is particularly relevant. His justification based on his belief that I knew that he was recording the session is very typical of the way he is portrayed, that is, that there is an air of credibility that possibly distracts from his behaviour. Whilst ultimately it will be a matter for the court to determine his actions in other contexts, I can comment directly upon that which I have observed clinically. What Mr Nolan has said about the recordings in my office was simply not true.
And at paragraph 52 and 55 of the report, Mr P concludes:
My concern is that Mr Nolan may present with significant personality problems that have an enduring and negative effect upon his capacity to cope amidst periods of stress, pressure and when confronted with real or imagined fear of loss or abandonment. I am concerned about the reports from [K] that suggest he did not use therapeutic assistance, was unable to use the group, was a destructive influence and that he showed no insight. Similarly, I am concerned by the police reports that show that he has repeatedly breached orders, accepts no responsibility and that he was deemed at high risk of family violence. It may be correct that Mr Nolan has been misunderstood, that the seriousness of his actions have been over-exaggerated, and that there has been an overreaction. It is my great concern that he has a serious personality disorder, that his behaviour is destructive and mal-adaptive and impenetrable to change.
My direct observation of him has been that his mood has been erratic and labile in the extreme. His behaviour in relation to me directly has been manipulative and dishonest. I have been deeply concerned by his behaviour and presentation. My view is that he is a man in desperate need of psychological help, and that he is profoundly unhappy but has no insight as to the depths of the inappropriateness of his own behaviour. It is my opinion that in his current situation, he has no understanding of how he is perceived by others, how his behaviour impacts on others and that the same is likely to be true of his interaction with his children and, consequently, his behaviour won't change.
The above clearly provides expert corroboration of the evidence of

Ms Nolan and Ms E. The significance of Mr P's evidence for

Mr Nolan's case is that Mr Nolan did not seek to challenge Mr P's observations or conclusions.
At paragraph 53 of his report Mr P considers the options available for the court as follows:
The impact of Mr Nolan and his functioning on Mrs Nolan cannot be ignored. Typically, it is not my view that the psychological impact by one parent on the emotional functioning of the other parent should alone be a determining factor, but in this case, and depending on the history and what is proved to be correct and not correct, this position may change substantially. The reality is that the children's relationship with their father has been protected by supervision and that this is the least uncertain way forward. I realise that this, of course, is not an option that can endure into the long term. The other alternative is for Mr Nolan to not see the children for 12 months or more, that he can be expected to engage in regular and intensive psychological treatment, and that he can show some commitment to change before there be any prospect of him spending time with the children.
Mr Nolan confided in Mr P that he is prescribed a medication to deal with alcoholism. Yet, and significantly, he admitted in cross-examination that he continues to drink. His evidence to me was inconsistent and, in my view, evasive. Such evidence was incongruent with his most recent affidavit apparently acknowledging his “problem”. To the contrary, I see this evidence as, in fact, corroborating that of the mother and Mr. P of a man prepared to taper evidence to shore up his case but not showing the important and necessary acknowledgement and insight.

Evidence of Dr C

I have before me Dr C's report and assessment of Mr Nolan dated 31 May 2013. He was not required for cross-examination.
Dr C notes that he did not have the benefit of an interview with

Mrs Nolan and no court documents.
Dr C notes that Mr Nolan suffered anxiety in the context of the relationship separation. He does not find that Mr Nolan suffers from any diagnosable mental health condition.
Dr C also notes that Mr Nolan "denied the allegations pertaining to his conduct that led to the intervention order".
Further, Dr C reported Mr Nolan as denying "any excessive or any regular use of alcohol in the past…".

Dr D report

Dr D, a consultant psychiatrist, prepared a report dated 20 March 2014. He interviewed both Mr and Mrs Nolan. Dr D noted Mr Nolan alleging that the mother had falsely portrayed his drinking patterns but in any event claiming to have "dramatically reduced his consumption over the last three months to three beers per week".
Dr D noted Mr Nolan as denying "erratic behaviour" and admitting to "maybe drinking six beers on a weekend". Mr Nolan also explained away by "accident" an allegation that he had made 20 phone calls to the mother over a short period of time.
Mrs Nolan repeated to Dr D the allegations generally set out in her affidavit material. On page 9, paragraph 3 of his report, under the heading "Opinion and recommendations" Dr D says:
Mr Nolan's "presentation" is complex. In order to most accurately formulate Mr Nolan one needs to consider his longitudinal history, personality style, impact of alcohol and stress and corroborative history from reliable sources. Mr Nolan appears to have a hyperthymic personality style. Whilst this personality type is not formally recognised within the DSM-V diagnostic manual, it is recognised amongst psychiatrists to represent persons with a propensity towards being highly energised, talkative, emotionally sensitive, sexually driven and expansive in mood. Mr Nolan appears to fit within this spectrum, as best as can be deduced from this assessment. It would be helpful to gain further corroborative history from his parents and siblings. The hyperthymic personality is described as having a disposition similar but more stable than the hypermanic state of Bipolar Disorder.
Dr D continues at paragraph 4:
Mr Nolan has a significant history of alcohol consumption … it would be ideal if this history could be clarified, as it influences the understanding of Mr Nolan's presentation.
And at paragraph 5:
Mr Nolan denied experiencing symptoms suggestive of depression or mania on systematic questioning. However, Ms Nolan, who impressed as being a thorough and reliable historian, provided evidence that Mr Nolan became, particularly in the later stages of marriage, a very difficult man with possible signs of hypermania. Evidence to support this notion includes a propensity towards irritable moods, heightened libido and focus on sex, inappropriate behaviour, reckless spending and poor judgement. It is very difficult to be certain if this represents Bipolar Disorder, but I can understand why this diagnosis has been raised.
In his conclusions at paragraph 10 Dr D opines:
I could not diagnose a hypermanic or manic state based in these qualities, but his mood and speech qualities were prominent. Whilst these qualities were pronounced, his mental state was not so unstable and concerning that I would be concerned he should not be permitted contact with his children. It is less clear if Mr Nolan would be able to manage the children independently and without support. …
I would recommend that, despite likely improvements over the last six or more months, that he be referred to a Psychiatrist to conduct further longitudinal assessment and consider treatment options if the diagnosis(es) become clearer and more definitive.
In these observations and conclusions, I see Dr D as effectively mirroring those of the psychologist and family reporter, Mr P.

[A] community services - supervised time notes

The court had the benefit of comprehensive, but also untested, notes from the supervision of the children's time with Mr Nolan. These sessions proceeded over a significant period. Generally the notes are very positive as to Mr Nolan's behaviour during time-with periods and of the children's comfort with him. It is clear on this evidence that all three children were at ease with Mr Nolan and enjoyed the periods of time. There is no evidence of inappropriate behaviour or comment from Mr Nolan. This evidence corroborated the observations of Mr P, who in his report of 3 February 2014 at paragraph 17 notes:
Mr Nolan was also seen in the company of the children, and this session went very well. He was active, energetic and attentive. He maintained an excellent level of conversation and attention to each of the children, easily sharing affection and easily sharing his attention between them. He seemed to equally involve himself, attend to their different developmental needs, maintained a sense of calm and cooperation and the children were obviously comfortable with their father, hugging and kissing him. All three were engaged positively with him. They separated easily from their mother and reunited with her with equal ease and comfort.

"[K]" behavioural change course - file notes

I have before me the file notes from Mr Nolan's participation in this 22 week course. They do not paint a complimentary picture of Mr Nolan and, in my view, serve to corroborate allegations that he lacks insight and acknowledgement of his own behaviour and that he demonstrates a manipulative and entitled personality. He is noted as portraying himself as a victim and attempting to justify his actions. The notes showed doubt by the convenors that Mr Nolan was suited to group participation. He is noted as eliciting sympathy from other members. He is also described as misogynist in his views and in denial as to his alleged abusive behaviour. Significantly the notes disclose a letter sent by the convenors to the State Magistrates Court urging that court not to take Mr Nolan's participation in the program into consideration in respect of charges pending against him or in respect of the Magistrate's consideration of penalty.

Section 60CC factors

Section 60CC(2)(A) - the benefit to the children of having a meaningful relationship with both of the children's parents

The evidence is clear that all three children have an attached and dependent relationship with their mother.
Despite the periods of no direct contact between children and father, the evidence suggests that they have maintained a relationship and connection with him, subject to the constraints of the various interim orders. The evidence of the [A] supervised time is demonstrative of this fact.
Obviously the orders sought by the mother for no time or communication between children and father, at least until Mr Nolan obtains proper psychiatric therapy, would impact on the nature of the relationship between such young children and Mr Nolan, and the court must consider this likelihood in the balancing process.
Whilst direct time between children and a parent is the optimum way of establishing and flourishing a relationship, a child's connection, identity and relationship can be maintained, albeit perhaps less satisfactorily, by other means of communication.
The observations of Mr P also suggest that the connection between the children and their father has not been severed by reason of no direct contact.

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

By reason of subsection s.60CC(2)(A) the court is obliged to place more weight on this consideration.
Ms Nolan makes a litany of allegations against the father and which fit the definition of family violence. She says that his behaviour has been harassing and abusive. She says that he is volatile in his temperament and disinclined to adhere to court orders. She says that his behaviour is compounded by ongoing difficulties with alcohol. She says that she has felt threatened and intimidated by that behaviour.
Ms Nolan's evidence is corroborated by that of Ms E. Both were unchallenged in their evidence. Ms E particularises damage to her property and harassment. Consequently, given that consistency and without challenge from Mr Nolan, I cannot accept his allegations of conspiracy between the two women. Rather, I take their evidence as being each corroborative of the other.
Significantly, in my view, I made an order for Mr Nolan to attend for a psychiatric assessment prior to this trial. He refused to do so citing a lack of financial capacity to meet the costs of the assessment. He did not ask to vacate the order or amend it. He simply did not go to the psychiatrist whose evidence, of course, may have supported

Mr Nolan’s claim to be a psychiatrically stable victim of two conspiring and manipulative women or it might not. In all of the circumstances, his failure to adhere to my order (or seek an alternative) does his argument no credit.
The tenor of the evidence of Mr P and supported by Dr D, is of unresolved psychological, emotional or personality disorders in Mr Nolan. His propensity for angry or violent behaviour (most dramatically particularised in Ms E's affidavit) also remains unaddressed.
I reject Mr Nolan's denials of his behaviour. In doing so, I note the consistency of the evidence of the witnesses. I note the allegations and convictions of breach of intervention orders.
I accept the assertions of the mother, Mr P, and evidence from the notes from the [K] course, that the father lacks acknowledgement and insight into his behaviour. Further, I find that his affidavit material in its clever wording is evasive in respect of these issues. For example, in his trial affidavit at paragraph 4, Mr Nolan gives a chronology citing:
12 April 2014 - remanded in custody for five days on charges of threatening to harm Ms E. Charges Withdrawn.
It is true that a number of counts were withdrawn but Mr Nolan omitted to tell the court in that chronology that he was also subject to conviction on some counts. This supports the contention that he has a tendency to be manipulative and effectively dishonest. It fits the personality profile suggested by Mr P.
The combination of my findings as to a propensity for anger and family violence together with his unresolved issues with alcohol and his tendency to denial and manipulation combine, in my view, to compound the risk factors in respect of his three children, who, of course, are young and not yet of ages where they can fully rationalise such behaviour and hence are vulnerable.

Section 60CC(3)(A) - any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views

[X] is the only child who was interviewed by Mr P, although all three children were seen with the father. [X] is just nine years of age. Mr P reports that she wants a relationship with her father, including overnight time. He reports her as missing her father and enjoying her time with him. [X] described both her parents "in unequivocally positive terms; she was hopeful and positive about her relationship with her father renewing."

Mr P's report makes it clear that [X] understands her mother's concerns and that they are in some way related to her father's previous behaviour.
[X]'s views sit comfortably with the ease observed by all three children in Mr Nolan's company.
Children's views are not, of course, determinative of the fact of or true nature of children's relationships with their parents. These children are still young and might not ordinarily be seen as being able to be fully informed or able to rationalise the matters which impact on their best interests. Nevertheless, [X]’s views must be given some weight and the court is obliged to give some explanation if it determines orders which are contrary to those views.[16]
[16] R and R: Children’s wishes (2000) FLC 93-000
In this matter, I am not satisfied that [X] (and the other two children) do or should reasonably be expected to have a fully informed background to her stated views. The nature of the allegations against Mr Nolan are that he can be manipulative and inconsistent in his behaviour. Young children can, of course, be susceptible to this type of manipulation. With the exception of some inappropriate telephone communications to [X] and attempting to elicit her sympathy it is entirely likely that [X]’s experiences with her father have been mostly positive. The orders that I am asked to make, however, are prospective and must take into account the element of risk of repetition of that behaviour in the presence of the children and, particularly, if that time is not supervised or limited by conditions. Given that I am not satisfied that Mr Nolan has honestly acknowledged and accepted his previous poor behaviour (despite some acknowledgement in his later affidavit material) then I remain concerned that the behaviour will be repeated. [X]’s views and preferences must be considered within this context.

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons.

The observations are of a comfortable and easy relationship between the children and their father. Again, this begs the question as to whether or not Mr Nolan can present a stable mental state so that the children are not at risk of his behaviour being repeated when they are with him.
The mother is the children’s primary carer. The evidence of Mr P confirms that she is their primary attachment.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions on major long-term issues in respect of the child; and (ii) to spend time with the child; (iii) to communicate with the child.

Mr Nolan cannot be criticised for consistently pursuing a relationship with his children and his wish to discharge his parenting responsibilities. To the contrary, he argues that the mother has manipulated, exaggerated, embellished and simply lied with an agenda of removing him from the children’s lives. On the evidence before me I reject these assertions and prefer the unchallenged and corroborated evidence of the mother that she has honestly acted in the children’s best interests in attempting to place conditions on the children’s time with the father or seeking to stop such time.

Section 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents and any other person or relative.

The children want a relationship with their father. They are most likely oblivious as to the reasons for their time with him having been supervised or having stopped all together. The orders sought by the mother would effectively sever that relationship and it is for the court to balance any risk to the children of a continuing relationship against the risk to them, in both the short and long-term, of growing up without any or any productive relationship with their father.

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

This consideration is not relevant save that the father claims to be so impecunious that he could not pay for an assessment from Dr. D. I must consider his ability or willingness to fund any supervisions accordingly.

Section 60CC(2)(f) – the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs.

The mother is unimpeached as the children’s primary parent. The orders that the father now seeks to continue to delegate that role to her despite his case being that she dishonestly seeks to remove him from the children’s lives.
It is the father’s capacity to attend to the children’s emotional and psychological needs that are at the crux of my consideration. In addition, the mother argues that the father is at times, angry and his volatile temperament and behaviour place them at a physical risk.
I have found the mother and Ms E to be witnesses of the truth. Mr P echoes their concerns in respect of Mr Nolan’s historical behaviour. I do not accept that he has legitimately or honestly acknowledged that behaviour. Certainly, by reason of not attending at the court-ordered psychiatric assessment, I cannot be satisfied that he has addressed that very behaviour which he acknowledges to a degree in his last affidavit. The children are young and, in that sense, are vulnerable and unable to be self-protective should Mr Nolan’s behaviour manifest whilst they are in his care.
With the exception of what I find to be inappropriate and manipulative telephone communications with his daughter, Mr Nolan’s observed behaviour in the presence of the children, as reported by [A] and Mr P, is exemplary. This, however, begs the question given what I consider to be his capacity for manipulation and considering himself as a “victim”. Quite simply, the evidence tends towards Mr Nolan having unresolved psychological and emotional issues. Whilst he may be able to attend to the children’s physical needs, children are “works in progress” and it is equally important for parents to have insightful understanding of their delicate and developing emotional platforms. I remain unconvinced that Mr Nolan has this insight and prefer that he effectively remains in denial and manipulative and as evidenced by the above-mentioned references in his most recent affidavit.
I am not satisfied that Mr Nolan has the capacity, at this stage, to attend to his children’s psychological and emotional needs.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, cultural and traditions of the child and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant).

These three children are still young and carry those vulnerabilities.
The tenor of the expert’s reports suggest that the father’s behaviour might be attributed to, at least in part, to some immaturity. On the evidence before me, however, I am not satisfied that the clandestine nature of some of his behaviour or its consistency can be mitigated by this excuse or reason. I prefer the suggestions of Mr P and Dr D that the father would benefit from psychiatric intervention.

Section 60CC(3)(h) – if the child is Aboriginal or Torres Strait Islander.

Not relevant.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

Mr Nolan has consistently pursued time with his children, his attitude, however is compromised by his sense of entitlement when seen against his children’s needs. Whilst he is able to provide an enjoyable time with the children, he is equally able to involve [X] in adult issues. His attitude often seemed to me to be based on self-interest rather than on objective understanding of the emotional needs of the children.

Section 60CC(3)(j) and (k) – any family violence involving the child or a member of the child’s family and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant issues that can drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the orders; (iv) any findings made by the Court, or in proceedings, for the orders; (v) any other relevant matter.

Both Ms Nolan and Ms E have successfully obtained family violence intervention orders against the father. He has been convicted of counts of breach. The evidence in support of the intervention orders is consistent with the evidence in the affidavits of Ms Nolan and Ms E filed in this court. I have made findings that I accept their evidence and I infer that the State Magistrate did likewise.

Section 60CC(3)(l) 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

It is a truism that litigation per se between parents is usually contrary to their children’s best interests. Courts would normally have expectation that litigating parents now armed with an order of the Court will move on to parent accordingly and in a cooperative and respectful manner. There are, however, situations when further litigation is anticipated by the factual platform and the very orders which the court makes in the children’s best interests. When a parent needs professional help in order to reach the potential in a relationship with a child is one of those situations.

Findings, discussion and conclusions

After considering the evidence I am satisfied that the three children have maintained a relationship with their father despite the hiatus in direct contact between them.
I am satisfied on the balance of probabilities that Mr Nolan has perpetrated the family violence particularised in the affidavits of

Ms Nolan and Ms E. I am not satisfied that he has yet fully acknowledged and certainly not addressed his propensity for such violence and I am not satisfied that he has yet acknowledged or addressed his difficulties with alcohol. I reject the veracity of his alleged acknowledgments in his most recent affidavit.
I am satisfied that [X] wants to spend direct time with her father. I am not satisfied, however, that her views and preferences are suitably mature, rational or informed and especially where I find her father to be a manipulative personality who has a history of eliciting sympathy and holding himself out as a victim.
I find that Mr Nolan’s capacity to care for the children, at least in the terms that he proposes and generally, is compromised by his psychological and behavioural traits, yet unaddressed, and compounded by his continued and unacknowledged difficulties with alcohol.
It being unchallenged, I generally accept and share the evidence and concern of Mr P of Mr Nolan suffering ongoing personality problems that have a negative effect on his capacity to cope with stress or challenge. I too find Mr Nolan to have been manifestly dishonest in much of his evidence and specifically as to his denials of the allegations against him and in respect of his alcohol use. I accept the unchallenged evidence of Mr Nolan being an aggressive, violent and abusive partner whose behaviour is compounded by alcohol abuse. I reject his claims of him being the victim of a conspiracy.
On the evidence and my findings, I consider that I am left with three clear options in respect of parenting orders for these children’s relationship with their father as follows:
a)That there be orders in the terms of Mr Nolan’s application which would see him having unsupervised and unconditional time with the children on alternate weekends and one overnight each week together, I anticipate, for block periods in school holidays;
b)That the children’s time with their father again be supervised for a period and/or limited by conditions such as an injunction from using alcohol and also that he attend for psychiatric therapy; or
c)That there be orders in the terms of the mother’s application, being that there be no direct time or communication between the children and the father, at least until Mr Nolan receives psychiatric therapy resulting in a report satisfying the mother (and the Court) that he has acknowledged his behavioural and alcohol difficulties and obtained appropriate professional assistance.
On the evidence and on my findings, I cannot be satisfied that the first option in the terms of Mr Nolan’s application would be in the children’s best interests. These are young children susceptible to influence and unable to necessarily protect themselves if confronted with danger even of a psychological or emotional type. Mr Nolan’s continued use of alcohol together with his unaddressed psychological and/or personality difficulties would, in my view, place these children at an unacceptable risk of harm. I accept Mr P’s suggestion of a personality defect compounded by alcohol use and a sense of victimisation. Further, I am not satisfied that his lack of insight would prevent him from again involving [X] and the other children in inappropriate adult issues and/or attempting to enlist their sympathy. Primarily, I could not be confident that the making of orders in terms sought by the father would not simply entrench his sense of entitlement and leave these problems unaddressed.
The second option has some attractions. It would again provide regular direct contact for the children and the evidence is that they want that direct relationship. Such orders would acknowledge the previous proper behaviour by Mr Nolan during supervised time-with and give effect to a direct relationship (albeit not in optimum circumstances) in which the children have demonstrated ease and comfort. Nevertheless, the notion of supervision is itself problematic. And I respectfully agree with the comments of his Honour in Re: C & J[17] that supervision orders are not to be used routinely and by way of compromising cases.
[17] (1996) FLC 92-697
Rather I view supervision to be an assistance in the short term and perhaps together with other conditions or limitations with an aim of achieving open and unconditional time-with. In this matter Mr Nolan has already had the benefit of supervised time. Whilst he may have acted entirely appropriately during the visits I am not satisfied that the imposition of supervision on his time previously has had the desired effect of him tempering his behaviour generally.
Supervision is, of course, a limited resource. Routinely, the providers are reluctant to offer ongoing or long-term assistance. There are usually expenses involved and Mr Nolan’s claimed inability to fund the important psychiatric assessment previously ordered does not augur well for his ability to fund supervision although the evidence did not assist me in making any precise findings in this regard.
The previous episode of supervised time-with did not serve to alleviate the mother’s ongoing concerns in respect of Mr Nolan’s behavioural traits and his alcohol use. Rather, her concerns were compounded by the events which confronted Ms E. To put it bluntly I would need to be satisfied that the imposition of a period of supervised time would have a broader, positive and therapeutic effect on Mr Nolan over and above simply providing him with direct time with his children. On the evidence before me I am not so satisfied. I cannot be satisfied that he previous imposition of a condition of supervision had any effect on Mr Nolan accepting or addressing his behaviour. I cannot be satisfied, on seeing and hearing him now, that he would be motivated to do so if supervision was to be restored.
The third option also presents difficulties and not least for these three children. Ideally, they should have the benefit of a free, enjoyable, successful and meaningful relationship with each of their parents without having to deal directly and vicariously with the residual difficulties from the parents’ separation manifested in their father. The aim of the Act is to assist children and parties through the difficulties of a separation. The Court and society provide various forum for assistance. The onus rests then squarely with a parent to take up that assistance. I am satisfied that Mr Nolan has not done so. Rather, he has shown a continuing capacity for self-interest and immature and violent behaviour. The evidence of Ms E confirms the scepticism of the conveners of the behavioural-change course completed by

Mr Nolan. His own evidence to this Court was unsatisfactory in its contradictions and evasion. In this sense I share and adopt the comments of Mr P as to the father’s behavioural history, alcohol abuse and personality. Our communities and of course our children benefit immensely by diverse personalities. The fact of an unusual or even bizarre personality should not of itself preclude a parent having time with their children. Certainly children should not be punished for the sins of their parents. Rather, it is only when those traits accompanied by a lack of insight or address and consequent impact or potential risk of impact on children’s best interests occur will a court make orders of such a “last resort”. This will often occur in matters involving sexual or physical abuse where the risk to children is perhaps more readily apparent and the injuries or scars more obvious. Nevertheless the risk of psychological or emotional abuse is no less a risk. The unchallenged evidence of the mother, Ms E, Mr P and Dr D in this matter convinces me that such orders are in the children’s best interests.
That being the case the onus rests fairly and squarely with Mr Nolan to enlist proper professional assistance and convince this Court and the children’s mother that he no longer poses such a risk to his children. Children’s orders can only be final in the sense that there is no change in the circumstances of either the children or the parents. As such, any further application by Mr Nolan would need to be accompanied by such extra evidence.
I do not, however, intend to cease all communications between the children and their father. They have had the benefit of continuing telephone communications with him. However, as said above, and accepting the evidence of the mother and Mr P, I am satisfied that

Mr Nolan has at times abused that privilege in respect of [X]. Mr P’s report indicates to me that the child has accordingly experienced some negative effect. I am of the view that this relationship should continue by way of written communication, vetted by the mother, until

Mr Nolan obtains the professional assistance which ideally should not be an overly long-term prospect.
I will order communication by letter or card monthly and on special occasions such as Christmas, Easter, children’s birthdays and the father’s birthday. I will order that the mother assist the children in making replies to the father.
In making these orders, I accept that the children will inevitably suffer some distress and a sense of loss but on the whole consider these orders to be in their best interests. I accept that my orders are contrary to [X]’s views and preference. However, I am confident that the mother is able to assist these three young children in continuing to identify with their father and I trust that Mr Nolan sees these orders and reasons as an invitation and motivation to honestly accept his failings, address them, and hopefully be able to then enjoy a relationship with his children to its fullest potential.

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 11 December 2014

[2014] FCCA 2652

11 December 2014

Key Legal Topics

Areas of Law

Family Law