Olson and Carter

[2014] FamCA 29

FAMILY COURT OF AUSTRALIA

OLSON & CARTER [2014] FamCA 29

FAMILY LAW – CHILDREN – Orders made in January 2013 by agreement concerning two autistic children – Orders failed – Father seeks change of residence – Very poor relationship between parents – Limited contact is the only solution – Consideration of family violence definition.

Family Law Act 1975 (Cth)

APPLICANT: Ms Olson

RESPONDENT: Mr Carter

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10939 of 2010

DATE DELIVERED: 28 January 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 15, 16 January 2014

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

Orders

1. That all existing parenting orders are discharged.

2. That the mother have sole parental responsibility for the children J and M both born … July 2004.

3. That in respect of major long-term issues of schooling and health of the children that would normally require a decision by parents, before making such a decision, the mother advise the father by email of her proposed decision and the foundation for her desire to make it and give the father 7 days thereafter to give his views as to the proposed decision. The mother shall thereafter consider the father’s proposal and by email, either agree with it or indicate to him why she rejects it.

4. Paragraph 3 of these orders does not apply in an emergency.

5. That in respect of day to day decisions concerning the schooling and health of the children, the mother shall keep the father informed by email of any concerns expressed by the schools and health professionals about the children as well as details about their development.

6. That the children live with the mother.

7. That the mother authorise the various schools and health professionals involved in the care of the children to answer any questions raised by the father about the well-being of the children.

8. Subject to any contrary views of the principal of any school and any health professional attended by the children, the father is at liberty to attend such appointments and events as parents would normally attend.

9. The mother is at liberty to provide a copy of these orders to all such persons referred to in paragraph 8 of these orders and B CONTACT CENTRE and to advise all such persons that the Court is making no order for the father to spend time with the child M and his time with the child J is limited to that in paragraph 10.

10. That the father’s time with the child J shall occur on the second Sunday of each month for a period of 4 hours from 10 am until 2pm or on such other days or other times as the parties agree.

11. That the mother shall deliver J to BCONTACT CENTRE at the commencement of the time referred to in paragraph 10 and the father shall return J to the same location at the conclusion of the time referred to in paragraph 10.

12. Any costs of the implementation of paragraph 11 shall be paid by the father.

13. In addition to a copy of the orders, the mother is at liberty to provide B CONTACT CENTRE with a copy of the reasons for judgment delivered this day.

14. That the Independent Children’s Lawyer is forthwith discharged from the proceedings.

15. A copy of these orders and the reasons for judgment this day be made available to Family Consultant Ms E.

16. That all extant applications are otherwise dismissed.

17. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10939 of 2010

Ms Olson

Applicant

And

Mr Carter

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 15 January 2013, Ms Olson (“the mother”) and Mr Carter (“the father”) consented to final parenting orders relating to their twins M and J who are now aged 9 years.  At the time, both parents agreed to the orders, they were not represented by lawyers and the orders were the culmination of considerable litigation. 

2. Under those final orders, the parents agreed to have equal shared parental responsibility for the children, that the children live with their mother and that the father spend time with the children during each alternate Saturday for 6.5 hours.  There were other orders but this was the core of the father’s time with the children.

3. By April 2013, the father’s time was supposed to be increased to 24 hours each alternate weekend and by August 2013 it was supposed to be from 10.00am on Saturday to the commencement of school on the following Monday morning.  Those orders were to apply ultimately to both children.

4. It is now obvious that the orders never really got off the ground and, by the end of 2013, the father was not seeing either child at all.

5. 2013 was a turbulent year with a contravention application in this Court as well as family violence proceedings in the State Magistrate Court between the parties.

6. The positions of the parties are now so polarised that court intervention is required in relation to the future of these two children. 

The parties’ material

1. For these proceedings, each party was self-represented.  The mother was the applicant.  Pursuant to orders that I made, each party filed affidavit material.  Being unrepresented, the material was not perhaps as comprehensive and helpful as it might otherwise have been.  For example, the father filed a modestly short affidavit to which I shall refer below but he then attached a thick pile of papers some of which were referred to in the affidavit and some were not.  In an endeavour to work out both the history and what should happen in the future for these children, I have endeavoured to read all of the material available to me but for the sake of certainty, I have listed those documents at the end of these reasons.  The weight to be given to those documents varies because some of it could not, and some was not, tested by cross-examination.  I have given significant weight to the affidavit of the mother about the events after January 2013 and, as best I could because of the way the father prepared his affidavit, the same period.  Thus the documents relating to the lead-up to this hearing and the previous psychologist’s report have been given little weight.  The affidavits of the mother, relied upon by the father for the earlier hearings have been given very little weight because their content was replicated in the mother’s trial affidavit.

2. A considerable portion of the historical material was not addressed during the hearing itself.  That is not unusual in a case where the issue was the alteration of the recently-made existing final orders but in this case, because of the allegations of the father, I have read the annexures to which he referred and which provides some insight into the problem.

The parties’ positions

1. At the beginning of the case the mother sought that M spend no time with the father but that J have two hours at a contact centre indefinitely.  That theme varied a little during the hearing to the position that the father should consult with a psychologist to work out the child’s needs with a view to his involvement if the psychologist thought it appropriate and helpful.  The mother’s implacable position was that the Court should not grant time between the father and M.  At the conclusion of the case, counsel for the Independent Children’s Lawyer submitted that the father should have four hours with J on one day per month with the handover arranged by the contact centre.  She submitted that there should be no time at the moment with M.  The mother adopted that position in final address.

2. The father was the respondent in these proceedings.  He sought that both children live with him.  He had difficulty articulating exactly what time the mother should spend with the children but acknowledged that there should be some involvement.  His application sought a variety of other orders but at the commencement of the proceedings, he indicated that he was not pursuing them.  From his perspective, the issue was whether the children were to live with him or not and what time each party should otherwise have with them.  He did not distinguish between J and M. 

3. On the last day of the hearing, the father still said that the children should live with him and that the mother should have time with the children on alternate weekends.  However, having heard the final submissions of the Independent Children’s Lawyer and the mother, the father said that he could see “where the matter was going” bearing in mind the evidence to which I shall refer of the family consultant and the final submissions of the applicant and the Independent Children’s Lawyer.  I did not take that as a consent to the arrangements and accordingly, these reasons have to continue.

The children

1. Both children have significant developmental difficulties.  Both have been diagnosed as being on the Autism Spectrum Disorder.  J’s speech is limited but not so M.  The children attend different schools where they have considerable assistance.  M is seeing a psychologist at the Autism Spectrum Disorder clinic.  He has an occupational therapist organised by the school and sees a school psychologist as well.  J has a multi-disciplinary team most of whom are connected to the school and their involvement occurs during school time.  He has been referred to a psychologist at the Autism Spectrum Disorder clinic.  J is mostly non-verbal.

2. According to the mother and disputed by the father, M struggles with anxiety about seeing his father.  After hearing all of the evidence, I accept that M does suffer such anxiety.

3. The current role of the mother requires her to travel between one and two hours per day from her home to the two different schools.  One school is in Suburb F and the other in Suburb G.  That is one of the issues that causes me concern about the proposal of the father that he would be able to provide the care necessary for the children on a day to day basis.  Although the father dismissed any concern about his availability, I am not sure, I return to that below.

4. I find that J is less anxious but more vulnerable to environmental problems for example relating to safety.  J has been known to simply leave the place where he is playing and walk away.  He has to be watched.  The mother, who lives with her parents, has an environment where there are security gates that would make absconding difficult for J.

5. There was disagreement about the manifestation of the problem of each child and its extent.  J has a photographic memory and is able to read.  I accept the evidence of the mother that he is aware of his own play and social skills but those are somewhat impaired.  By preparation for change and events that are about to unfold, his anxiety levels drop.  A good example of that could be seen in one of the disputed facts of the parties. 

6. The father produced a photograph provided to him by the school of J having a wonderful time at a recent school camp.  The question asked by the father and the inference to be drawn by his question, was why there was so much concern about J when he clearly could be away on a camp at school.  The answer was not quite so simple.  I accept the mother’s evidence that an enormous amount of work for weeks went into the preparation for that camp and there were only five children involved with three experienced adults present.  One of the things that seems to have been successful is a series of cards of visual aids that enable the parent to prepare the child for forthcoming change.  Although the father, in answer to a question by the mother, indicated that he had access to all those things, I am not entirely convinced.  For her part, the mother is very “hands-on”.  I am satisfied she understands the many difficulties that these children have.  I do not accept that the father does.  In part, that may be because of the evidence he produced and his blunt approach to the case.

The father’s proposal

1. Nothing in the father’s affidavit material indicated how he would care for these children bearing in mind his responsibilities in a very high pressured job.  Two other issues need to be contemplated.  The first relates to the clear acceptance by the Court on the evidence before it that M has little or no relationship with his father and indeed, is resistant to having any contact.  That is supported by the evidence of the family consultant and the contact centre.  The second relates to the concerns raised by the mother about the father’s physical health.  There is no dispute that in 2013, the father was diagnosed with cancer and underwent surgery.  No corroborative evidence of his statement was provided that all is now well.  I do accept however that he does not see any impediment in any problems he may have had if he were to care for the children.  He indicated that he was very active now in sport and to use his words, he was a 40 year old in a 30 year old body.  I do not doubt that the descriptions he was giving were correct and there is no current threat to his health but it would have been more helpful had he provided some details to the Court or more importantly to the mother of his children to indicate just exactly what that state was.

2. It was the father’s evidence that he currently had the necessary accommodation but he said that if he was given the opportunity to care for both of the children, he would move much closer to their school.  He was cross-examined at length about how he would undertake the task of parenting these children bearing in mind that he works for a major company and has a managerial position.  His evidence was that he was able to provide the necessary time away from various work sites but if it was necessary for him to have some assistance, he would obtain it.

3. The father was challenged about how he would obtain and access all of the services that the mother was using for the purposes of assisting the children.  His response was that part of his professional working task was to research how a particular major project could be carried out and who were the relevant experts to undertake the task.  His analogy was intended to show that he would simply apply the same process in respect of his children and then engage those experts.  I am not convinced that the extrapolation of his skills in his industry necessarily works well with his children.  These children already have a range of professionals working with them.  Their schools were chosen on a needs-basis.  Why the father thought there was a need to change could only be because of his dissatisfaction with them.  He gave an explanation about why he felt that way but, because there was no evidence that the professionals were embroiled in the parental conflict, his explanation was puzzling.  Importantly, research into what is needed in relation to Autism Spectrum Disorder might be difficult if he did not know what it was that he was looking for.  He has not contacted all of the experts even though he was of the view that he had spoken to a lot of people whom he did not name and had undertaken a number of courses such as anger management and parenting programs.

4. These children require a concentrated effort and nothing will improve in their lives until such time as the parents are able to deal with one another in an appropriate and responsible way.  That has been the problem for years since their birth and there is no indication after two days of evidence that I heard, of any foreseeable change.  As such, the issue of how to deal with M’s anxiety was really not addressed by the father.  The problem of what to do with J was equally simplified by the father on the basis that J should just go with him for a block period of a weekend from the conclusion of school on a Friday until the commencement of school on the Monday.  There is no evidence that would enable me to be confident that J could cope with that time.  The father’s position was that he should be trusted to be able to manage all of those things.  There was certainly no indication that he would contact the mother in the event that there was a problem. 

5. The father pointed to a variety of things that he has done which in a normal family law situation would indicate that he is child-focussed.  In a previous residence of the parties, he built a sandpit and a cubby house.  He talked of a racing car game that he has set up of which he was extremely proud and into which a lot of effort had been put.  He talked about the arrangements within his residence with which J is familiar.  J loves to draw so there is an easel set up in the house ready for J to use.  I do not criticise the father for those things but it is not a basis upon which I could make a change of what is currently the stable relationship between both children and their mother.

Family violence

1. There were allegations of the mother denied by the father, relating to the period as far back as the very day of the birth of the children.  Because both parties consented to final parenting orders in January 2013, it is not necessary for me to traverse the entire history to search for precise answers as to what happened.  It is necessary to mention some.

2. The allegations of the mother included a physical assault on her on the very day that she came home from the hospital after the birth of the twins.  That very incident brought the parties into contact with the Department of Human Services who threatened to remove the children if the mother did not leave the father and go to live with her parents.  The father’s response to that was vague.  He simply denied any violence.  Although no documentary evidence was produced indicating that that was in fact the Department’s view, I have concluded that in fact that was the case.  On the balance of probabilities, I find the father did assault the mother then.

3. Despite the denial of the father of any violence, there can be no dispute that the mother left the home.  It was the father’s case that the mother was influenced by her family to remove him from the lives of the children.  This was a very significant theme throughout his case.

4. The father described the mother’s family in pejorative terms.  For example, he cross-examined the mother about “your people” and indicated that they were “coaching” J to give the answers that he was giving or to explain the behaviour that J was exhibiting.  It is always difficult for two people in a conflictual situation who do not like each other, to then have to cross-examine each other.  The father, although brusque, was polite.  But the language directed to the mother’s family and indeed, his language in an email in early 2013 are more likely an indication of how he normally deals with the mother and her family.  In his affidavit, the father used such phrases as:

   With the extreme alienation traits of the extended [Olson] clan anything is possible;

   My main intention (to move the family to [far north Queensland]) was to remove the children from (the mother’s) bizarre and problematic family;

   An onslaught of intervention orders has followed (disputes about money and children) not just against me but members of (the mother’s) own family;

   Clearly the intervention orders are to alienate myself from the children and evidence (the mother) uses to estrange me from professionals that associate with the children ie school teachers, doctors etc;

   (The maternal grandfather) is an exboxer (sic) and an all-round thug and an antagonist before and during these proceedings;

   I have (the maternal grandfather) on court video threading (sic) to kill me and the kids.

1. In cross-examination, the father was asked by the mother why he thought he was no longer welcome in her family household.  His response was that it was because of their “strange beliefs”.  When asked what he meant, he said that everything revolved around the children being associated with anybody other than himself.  I find that says more about his attitude than theirs. 

2. It has always been the mother’s case that she will continue to reside in her parent’s home.  The father’s response to this was that:

   The residence places the child at rick (sic) psychologically and emotionally…This ridiculous (sic) in the extreme.

3. The father’s trial affidavit can only be viewed as a stream of vitriol.  None of these complaints was helpful let alone admissible in a relevance sense because, apart from the father’s accusation that the mother’s family prevented him from seeing the children, he did not establish (nor did any other evidence) that the mother’s will was overborne by her family.  All it established was that there was a very unhappy relationship between the father and the mother’s family.

4. The relevance of much of this material to the parenting issue was not readily apparent.  The father’s position was that it showed that the mother was simply following what her family wanted to do and that there was a conspiracy between them all to alienate him from the children.  In my view, notwithstanding that was the father’s very clear articulated view, there is no evidence that would enable me to draw that conclusion. 

5. Whilst the father denied there was any foundation for the mother’s general allegations of family violence, when I asked how it could be that there had been a number of family violence orders made by state courts, he referred to the fact that these orders were made by a court without foundation.  There was little doubt in my mind that he was referring to the fact that family violence orders were seen by him as being handed out without any evidence.  That is a cynical and in my view, unjustifiable view.  Accordingly, there is no evidence that supports a conclusion that the father wished me to draw.

6. The father went further though and said that the mother’s allegations of violence were false and baseless.  When he asked her in cross-examination how she explained pictures of M looking happy yet she was saying that he was now scared, the mother replied that M had witnessed the father’s volatility, his abuse, aggressive behaviour which included she said, pushing her against a wall and hitting her.  I accept her evidence which I find corroborated by the making of the intervention orders.  The intervention orders add significant weight to the mother’s evidence about the father’s behaviour.

7. The father deflected all of the accusations against himself by referring to the fact that there were altercations between the mother and her family.  He referred to a Christmas 2012 incident wherein the mother’s aunt (described by the father as a “lady in her 60s”) was said to have been assaulted by the mother.  The father had obtained the information for this allegation from some source but had no witness to support it.  He made reference to the mother’s uncle but I am unclear as to whether the uncle was available to give evidence.  When this question was put to the mother about this incident, her response was detailed.  Her evidence was that she was jumped upon by this “lady in her 60s”.  This was not the first time this issue had been raised.  In an email during 2013 when the parties were at loggerheads over contact, the father made the accusation that the mother had been involved in “criminal behaviour” that was going before the courts.  The mother not only denied it but in vigorous terms said that it was rubbish.  In her evidence before me, she detailed the extraordinary assault by the aunt on her rather than the other way around.  More importantly, this took place before the January 2013 orders.  The father denied that he was aware of the details.  That was very much disputed by counsel for the Independent Children’s Lawyer who had also been counsel at the time that the January 2013 orders were made.  That matters little because the father did not further challenge the mother’s version about the events that she gave.  I take into account that the mother was present but the father was not.  That particular incident and the way in which the father used it, indicates a deep-seated problem about the father’s view of the mother.  In that environment, there is no prospect of cooperation between the parents over these children.

The father accuses the mother of alienation

1. As I mentioned earlier, the father accused the mother of orchestrating his estrangement from the professionals involved in the lives of these two children.  Not only was there no evidence to support such an allegation, the father conceded in cross-examination that he had not contacted the children’s health professionals. 

2. In her affidavit, the mother said that in January 2013, she wrote to the father and suggested that they could consult with an Autism Spectrum Disorder specialist about ways to re-establish the father’s relationship with M.  She asserted that the father did not respond to her suggestion.  In his evidence, the father also did not respond. 

3. There is some substance to the mother’s view.  In one odd piece of cross-examination, it became apparent that the father had contacted the paediatrician of one of the children over the telephone but that conversation had ended in acrimony.  The mother asked the father why he would not talk to the paediatrician.  His response was that when he had rung “them”, he realised that “they” had been engaged by the mother and that as a consequence, he believed that the mother had told the professionals about the intervention order and her perception of him and accordingly, he always got a hostile reception.  The mother challenged the father to respond to an accusation that he told the paediatrician to “shut up”.  The father’s only response was to question whether that was in the doctor’s report. 

4. The mother put to the father that he went to the same general medical practitioner as the children and asked him whether he had found out from those doctors about the children and his curious response was “not directly”.  She asked him why he had not and his response was that because there was an order for equal shared parental responsibility, he expected the mother to contact him if something was wrong.  When challenged about the fact that she had told him about things, the father’s cynical response was that that had occurred “down the track”.  The father conceded that he could call these people about his children at any time he wished.

5. How that would play out in the future is hard to know but it makes the development of a process for the father and M to be reunified somewhat difficult where M is clearly a child with disabilities of the nature where change creates uncertainty.  The father’s only response was that he was an expert as a project manager and a loving father and saw no difficulty.

The father’s view about the mother’s role

1. I find that the father provided little comfort to the Court about how he would go about involving the mother in the children’s lives if they were living with him but equally, how he currently intends to be involved in the children’s lives with the assistance of the professionals if no change is made to where the children live.

The volatility of the father

1. The evidence that the Court had was very contradictory on one particular subject.  Prior to the orders being made in January 2013, the expert reporter was psychologist Ms H.  She thought that the relationship between the father and the children was good and saw no reason to inhibit the ongoing relationship.  In the proceedings before me, the expert was Ms E who is a family consultant attached to the Family Court of Australia.  Ms E told the Court that she had observed the father interacting with the children and I presume, particularly J, and had never seen such a tender scene.  That has to be contrasted with his relationship with the mother.

2. In February 2013, the mother wrote the father an email indicating that she wanted to know what the father was intending to do on the weekend with the children so that she could provide them with visual information to prepare them.  She passed on further information about a problem that J had at school and that the school and she had begun to notice some significant behavioural changes in the child.  She referred to having a meeting with the class teacher, room aide and level coordinator as well as the school psychologist.  The email was an invitation to the father to be a participant.  A number of other matters were raised.  There is no doubt in my mind that the email was not contrived or done for some litigious purpose at that particular point in time.  It was a genuine attempt to get the father involved to sort out the difficulties that were unfolding.  The father’s very blunt response was that:

   While were (sic) on the subject of children’s care…why don’t you get a job and start supporting you (sic) children yourself. 

   Whining about looking after kids with disabilities etc is no excuse…

   That email was put to the father and in cross-examination, he acknowledged that it was a disgrace.  Sadly, it took all of that time for that to dawn upon the father.  That did not stop him however filing an affidavit in this Court in which he referred to the mother not only in the most pejorative of terms but accused her (or someone associated with her) of sexually tampering with the children and coaching them to hate, fear and be terrified of him which he described as an assault upon the children themselves and child abuse.  His view was:

   The children are getting worse in (the mother’s) care.

3. The father cross-examined the family consultant whose evidence I shall refer to below about the fact that the mother needed to make some changes if she saw improvement and development in his relationship with J.  The family consultant indicated very clearly that she would expect that the mother would get comfort from seeing the arrangement with J as being successful and in due course, that might lead to M overcoming his fear of the father and wanting to participate.  As I observed at the time, the prospect of any such change occurring was remote whilst the sorts of diatribe I have referred to above continue.

4. All of that is relevant to the issue not only of the time that the father spends with either child bearing in mind the need (which I accept) to prepare at least J for change but also on the question of the decision-making process relating to major long-term issues about the children. 

Past involvement of the father in the children’s lives

1. I have referred to the fact that two psychologists were complimentary of the father.  That is important to note because in the difficult lives of these children over the years, the father has been absent for significant periods either by choice or by order or decision of the mother.

2. In the mother’s affidavit, she referred to the fact that initially after separation, the father attended her home and had difficulty containing his feelings about her and her family.  She accused him of verbally abusing and threatening her and her family members and blamed him for the involvement of the Department of Human Services.  She said that on one occasion, he threatened to blow his brains out with a gun and then burn down the house all of which was to be filmed so that the children could see it when they were 21 years of age.  All of that was denied by the father when it was put to him in cross-examination notwithstanding he did not respond to it in his affidavit.  He had the mother’s affidavit at the time that he completed his affidavit.  Although his simple response was that it was untrue, I find that that is the way he was behaving at that particular time.

3. Further in the mother’s affidavit, she made reference to visiting the home where the father was living with the children but accused him of showing little interest or alternatively, becoming aggressive.  She said there were times when things went well.  The father’s response to that was unclear but in a general sense, his evidence was that he did the best he could and spent as much time as he could with the children bearing in mind their ages at that particular time.

4. Things however changed when the father went to live in far north Queensland.  This apparently was the subject of discussion between the parents and involved the mother’s family.  This period was a long gap out of the children’s lives.  The father was quite upset about the fact that the mother would not go to Queensland where he had financial opportunities that would have set the family up extremely well.  Whilst I accept that that was his intention, I find on the evidence that up until that point, the relationship between the parties was not good and the father’s role in the lives of these children was at best limited. 

5. It was whilst the father was in far north Queensland that the first diagnosis of Autism Spectrum Disorder was made.  The mother cross-examined the father about that and he conceded that that was about 2008.  She asked him what he did about it and his response was that he was in far north Queensland.  She then asked him “Who advised you?” of the diagnosis and his unresponsive answer was “I was aware something was not right”.

6. The father acknowledged that not long after that, J was also diagnosed.  The mother again asked the father what he had done in relation to this diagnosis.  The father’s answer was:

   That was your department.

7. Thus, regardless of whether the father went to Queensland for sound economic and financial reasons or because, as he said, he wanted to get away from the mother’s family and their “strange beliefs”, it was the mother who managed the children through this difficult period without help from the father.  Nothing I heard suggested that she did anything other than a good job.  The father did say that he “always” had “concerns” about the mother’s emotional care of the children but that is curious having regard to the fact that he went to Queensland.  Leaving aside the scandalous nature of such an unsupported accusation, the father produced no evidence about that particular period of time that would justify the Court making any such finding.

8. After the father returned from Queensland, the mother made a further attempt to resume the relationship with him and they moved in together.  There was a curious piece of cross-examination by both parents about why it took so long for that to occur.  It would be hardly surprising having regard to the nature of the relationship then.  Ultimately, the father was removed from the house by police in September 2010 so it is clear that a reconciliation attempt was short lived.  I think I can safely presume that police do not “remove” people from their own homes without cause.  That cause is usually associated with family violence.  I find therefore that there were violent incidents in the period of the short-lived reconciliation. 

9. The mother asked the father that if, as he had claimed, she was a “no contact mother”, had he taken any steps in September 2010 to November 2010 after being removed from the house, to get contact going pursuant to some legal avenue and he replied that he had not.

10. The father’s position was clear in the evidence that he did believe the mother was a no contact mother.  When asked by her what evidence he pointed to as a manifestation of that, his response was:

    I was only a means to provide.

    That was a sad indication of the level to which the father has stooped in relation to his views about the mother.

11. This reconciliation period was obviously unsuccessful.  Even during their short time back together, the father accused the mother of removing the children on a Friday night until the Monday morning and taking them to her family.  It became apparent however that he was still there during the week, as were the children and I was baffled as to what all that was about.  The mother’s explanation as to why she went to her parents on the weekend was that there was renovation going on that required fences to be removed to get a bobcat in.  The father’s response was that that only occurred on one occasion.  I take into account that this was a very limited period of time of reconciliation so it matters little.  It again highlights the dilemma that the parties’ relationship has been in right from the time the children were born.  There is no doubt however that the father was accusing the mother of deliberately removing the children for the purposes of destroying the relationship between he and them.  Having regard to all of the evidence which does not put the father in a very positive light, I reject that assertion.

The period prior to the January 2013 orders

1. In his affidavit, the father provided numerous annexures with affidavits that the mother had filed as well as orders and intervention orders as some indication of what was going on.  Importantly however, he provided the report of the expert Ms H which was completed immediately prior to the January 2013 orders and provided to the parties.  Ms H described her observations of the father with both M and J as being without incident.  She thought that the children should continue to live with their mother and then said:

   Given the positive relationships demonstrated by the children with their father and [the father’s] demonstrated capacity, his proposal for gradually introduced alternate weekend time is appropriate and in many respects, overdue.  It was noted in the first family report that such an arrangement would be appropriate.

   There was no doubt in my mind that the mother read that but did not agree with it.  It was on the basis of that advice that the 2013 orders were drawn.  The parties were unrepresented at that time. 

2. There was a very clear intention in the court orders and certainly a very clear understanding by the father that over a space of time, his weekends with both children would be increased to what might be otherwise described as normal contact with children. 

3. The mother’s position was equally clear.  She said the children were not ready for that and of course that gave rise to the father’s accusation that the mother had deliberately thwarted the operation of the orders.  In his evidence, the father said that the mother had never intended the orders to work even before “the ink was dry on the paper”.  When challenged about this, the mother said that she knew the orders were not going to work at least in relation to M but she had signed the orders under pressure.

4. Whatever the correct position is and I am not in a position to make any specific finding because of the paucity of evidence, it is clear to me that problems began right from the start.  Family consultant Ms E was of the view that M did exhibit fear of his father and the anxiety arising around that, has not abated throughout 2013. 

5. M refused to go to the handover point at the contact centre.  The contact centre made endeavours to have the contact occur but ultimately declined to continue because it was distressing for M.

6. The father said that M was exhibiting fear because of the coaching of the mother.  When challenged about what was the basis of that assertion, he said that the child was being held by the mother in the room at the contact centre and cuddled by her.  The father was challenged to produce evidence of that because he had not been present.  He indicated that he had spoken to the supervisor of the contact centre but despite my urging to produce evidence, failed to do so.

7. Another example of the fear of the father exhibited by the child came out but in relation to an earlier period.  It was said by the father that at a handover, M produced one of the visual cards indicating fear.  His view was that M had been coached to do so by the mother.  The mother’s retort was that she was not present when that occurred and all of the visual cards were in the child’s bag and the child had delved into the bag and produced the card of his own motion.  When I asked the family consultant whether it was possible that the child was being coached by the mother, she thought that was not likely.

Contact and J after January 2013

1. Things went badly wrong in March 2013 when J returned home and his penis and foreskin generally had been coloured with Texta.  It had been a very hot day and when he returned home, he took off his clothes to go swimming in a pool at the mother’s home.  The mother and father had diametrically opposed versions of what occurred but more importantly, each accused the other of having abused the child by drawing on his genitals.

2. The father’s position was that he dressed J immediately before returning him to the mother and there was no sign of any drawing.  He said that as a deliberate ploy to stop the next stage of the contact which was to be overnight, the mother had drawn on the child.  There was no evidence to support that assertion and the only reason why the father thought that the mother might have done it was because of the fact that the overnight was the next step in the extension of the contact. 

3. The timing of all of this creates a dilemma but equally, the mother reported the matter immediately to the police and other health professionals became immediately involved.  She also drew attention of the problem to the father.

4. It was put to the father in cross-examination that there were three possible options as to what had happened.  It was put that either the mother or the father had done it or alternatively that the child had done it.  It was the mother’s evidence and emphatically so, that the child did not have the coordination to do that sort of drawing and that he had never done it before even though he had drawn on his legs.  To do what had happened here, would have required the child to pull back his foreskin and to then use Textas.  There is no doubt that he did have access to Textas and more importantly, has a great love of drawing.  The mother’s position however was that he had never done it before so why would he do it now. 

5. In cross-examination, the father said that he dressed the child and under no circumstances was he prepared to concede that the child drawing on himself was an option because he would have noticed it.  One of the difficulties I have with the father’s evidence is that he conceded he had never looked at the photographs taken by the mother.  He said he just could not look at them.  As such, it is hard to know whether he could assert that J had the co-ordination to do what was said to have occurred.  He took the view that it was the mother’s doing.  However, after a luncheon break when that evidence had been said, he reviewed his position and said that he conceded it was possible that the child had done it.  That was not a position that the mother would accept.

6. I am not in a position to make any finding.  All of the evidence has been closely examined and each party minutely cross-examined about the issue and nothing would enable me to make a finding one way or the other in respect of the parents that would have such serious consequences as would be obvious.  Under those circumstances, I decline to make a finding that either parent did it.  It is conceivable to me that the child might have done it notwithstanding the mother’s protestations that he was not capable of so doing.  Why he would do it and why the father would not have seen it, remains a mystery.

7. In respect of evidentiary matters, the burden of proof lies with the person making the accusation and the standard of proof is the balance of probabilities.  None of the evidence in this case enables me to make a finding that the accusation of either parent has any substance.  Accordingly, I decline to make such a finding.

8. Sadly however, this particular incident stopped the father’s time with the children but also made the father bring about an application for contravention which was ultimately dismissed on the basis of the reasonable belief of the mother.  Whatever happened here, the burgeoning relationship between the father and J stalled. 

9. To make matters worse, orders were made by the Court which enabled the father to continue his association with J but under a supervised regime.  The father declined to undertake that supervised contact.  His view was that the contact centre had declined to provide the service but there is no evidence of that at all.  I was left with the impression that the father’s position was that he really did not want supervised time with J and was prepared to wait for these proceedings notwithstanding the child’s time would not be taking place.  That was very sad because a long period of time has passed since J spent any time with his father.  It must be remembered that this child has a disability and change is a problem.

The mother’s view of the father

1. The mother has a very low view of the father as a parent. She was asked what he could do to change that and her predictable answer was to stop the litigation. When questioned about her fears, she said she thought that it was possible for the father to hurt the children. She used the case involving the child being thrown from a bridge as being one such possibility. Whilst that is very concerning, nothing in the evidence of either Ms H previously nor the family consultant this time, would support such a fear. The father’s anger and frustration which has not abated despite having attended a variety of courses, is directed at the mother not the children. I do not find that he would hurt the children for the purpose of hitting out at the mother.

Impact of change on these children

1. The evidence presented by the mother about how these children cope with change and the advice that she has received was largely uncontested by the father.  The mother relied upon the following information she was given.  That information was provided in written form and attached to her affidavit.  The father did not call for any of those witnesses to be cross-examined and that is curious having regard to the fact that he had not apparently spoken to many of the professionals who have been assisting the mother.  A summary of the advice to the mother is as follows:

   ·The senior psychologist at J’s school expressed concern in September 2013 about the child’s eating habits and his difficulty with changing circumstances.  J was described as having severe autism with associated severe intellectual disability and as a consequence, was unable to function in most areas and needed constant supervision to prevent injury to himself.  The senior psychologist described J as facing a chaotic world with high levels of anxiety.  The psychologist was of the view that it was not in J’s best interest to be continually moving backwards and forwards between different households because it added chaos to an already confusing world;

   ·Ms K is also a psychologist who in September 2013 opined that children like M, facing changes, required warning about what to expect, time to adjust and a gradual introduction process;

   ·Dr C is a consultant paediatrician who set out comprehensively all of the difficulties that the mother was facing in relation to the care of J and M and stressed how M displayed features of anxiety about contact visits and J’s propensity to run away when distracted by visual stimuli;

   ·The family consultant opined that the children demonstrated significant needs for attention, awareness and care that will probably extend far into the future.

The evidence of the family consultant

1. The family consultant observed both parties and also the children including both children with the father.  Of the father, the family consultant made observations which were consistent with the observations the Court made about his evidence and demeanour in court.  Her observations were:

   ·The father spoke rapidly and he moved quickly from one idea to the next with the main theme being the behaviour of the mother and her efforts to prevent him from having a relationship with the children;

   ·His position was that communicating with the mother was impossible and that he thought she was coaching and alienating the children particularly in relation to M being frightened of spending time with him;

   ·In relation to allegations of family violence he had attended behavioural change programs;

   ·The family consultant opined that the father demonstrated no insight into how his behaviour may have contributed to the lengthy intervention orders being made;

   ·The father reported a basic awareness of J’s interests and abilities;

   ·The father claimed that the children had the capabilities to adapt to a new routine and that the harm of being denied a relationship with him was greater than the harm they would experience by being separated from the home that they knew.

2. The observations of the mother by the family consultant were not entirely consistent with my observations in court.  I found her to be an impressive witness who was child-focussed.  The family consultant’s observations were:

   ·The mother’s presentation was such that she felt she was the only person who was effectively able to protect and understand the best interests of her children;

   ·Her relationship as a co-parent with the father was extremely poor;

   ·The history of family violence was extensive.

3. The family consultant made evaluations and was critical of both parents.  Having heard the mother’s evidence, I would not be prepared to criticise the mother.

4. The family consultant opined that even in practical terms, the mother demonstrated a superior ability to provide for the needs of the children and that that care provided consistency in the routines which was the fundamental component in these children’s lives.  She further thought that the father demonstrated no insight about his behaviour and more importantly, had not evaluated the children’s needs comprehensively.

5. Ultimately, the family consultant recommended that the mother have sole parental responsibility and that the children live with her and that the father’s time be limited to four hours per month with J.  Other recommendations were ancillary to those arrangements.  In relation to M, the family consultant saw no prospect of making the child feel safe until such time as he was comfortable in going with his father and that would require not only a lot of effort on the father’s part but also that of the mother.  In relation to J, it is impossible to predict what will happen if change is not properly anticipated and the only logical solution that the family consultant could provide was that at least for the reasonably short future, four hours enabled J to enjoy time with his father.  Just how much J understands bearing in mind his disability, is hard to know and therefore the normal sorts of orders that one might anticipate to include an incremental increase in time are not possible.

6. On any view of the evidence, I find the father does not justify his complaints about the mother nor is there a reason to change the status quo as to primary care nor is there any evidence that would enable me to make the sorts of orders that the father proposed at the conclusion of the case.  To make out what is best for the children therefore, it is important to look at the statutory pathway.

Statutory framework

1. Part VII of the Act guides the exercise of the Court’s power to make parenting orders. As the proceedings began in 2013, the June 2012 amendments to that Part apply.

2. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)) together with the principles which underlie those objects (s 60B(2)).

3. Section 60B(1) provides:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The principles underpinning those objects focus on children having rights to know and be cared for by their parents. Being “cared for” by both parents (s 60B(2)(a)) has been distinguished in the legislation from “spending time” with both parents (s 60B(2)(b)).  “Spending time” is referred to as a right of children to happen regularly.  Similarly, the significant roles of parents are repeated throughout Part VII (as examples, s 60B (1), s 60CC(2)(a), s 61C, s 61DA and s 65DAA). These are optimum levels of participation by parents but that participation must be restricted when it is not in a child’s best interests.

5. Section 65D of the Act provides the source of the Court’s power to make a “parenting order” and s 64B sets out the types of orders that a court can make if it decides to exercise the power.

6. Section 65D is subject to s 61DA which requires the Court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. However, that presumption does not apply where the Court finds there are reasonable grounds to believe that a parent has engaged in (relevantly in this case) abuse of the child or family violence.

7. Abuse in relation to a child is defined to mean an assault, inappropriate sexual activity, causing a child to suffer serious psychological harm or seriously neglecting a child. The emphasis of the various aspects in the definition is on the word “serious”. Save for assault which is not defined but which must refer to unlawful activity, the evidence must point to something out of the ordinary.

8. One of the provisions to which I shall turn in the context of determining the best interests of a child requires the Court to consider the exposure of a child to family violence. Exposure is widely defined to include situations in which a child sees or hears family violence “or otherwise experiences” the effects of family violence.

9. In this case, whilst the mother maintained that M’s response to the father was as a result of his exposure to the violence perpetrated on her, with M’s disability, I remain unconvinced as to what he has seen, heard or indeed understood. Thus, there is no evidence produced by either party which would satisfy the abuse definition.

10. Family violence is separate again. It is defined in s 4AB(1) to mean violent, threatening or other behaviour that coerces or controls a member of that person’s family or causes the family member to be fearful. The legislation goes on to provide examples but they are not exhaustive.

11. There have been a number of family violence orders made in this case but the evidence must go further than just that and satisfy the legislative test as set out in s 4AB(1). Some of the examples given in s 4AB(2) include “repeated” derogatory taunts and “stalking”. “Stalking” means to persistently harass someone in an obsessive way. Whatever definition one applies, and I am not aware of any definitive authority, the intention of the legislature seems to focus on repeated, obsessive and domineering behaviour.

12. The words “coercing” and “controlling” have a similar underlying meaning. That is, the intention or indeed action of the party, is to forcibly constrain the freedom of the other so that the recipient is left fearful.

13. The mother’s evidence about family violence which I do accept is that the father’s behaviour has been controlling but also it has made her fearful. Her evidence was that M’s reaction to his father was a reaction to the father’s abuse and aggression towards her, pushing her against the wall and hitting her. The father’s general denial of that conduct is rejected as I have indicated in paragraph 32 above. It was the mother who obtained an intervention order based on complaints of that nature and it was granted. That happened more than once. The mother said words to the effect that the father dominated and controlled people and that he did not understand the fear that he created. I accept that she fears him and that she cannot deal with him.

14. I am satisfied on the balance of probabilities that there has been family violence in this case such as to justify the rebuttal of the presumption in s 61DA(2).

15. Even if that were not the case, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of a child for the parents to have equal shared parental responsibility (s 61DA(4)).  There is no trust between the parties. There is ample evidence that each party only considers the worst in the other in relation to parenting matters. There is no better example of that than the colouring of J’s genitals.

16. Other examples are:

    ·the email of the mother in early 2013 to which the father responded with vitriol and now acknowledges was “disgraceful”.

    ·When the father was cross-examined about being told of the various professional attendances and advice about the children, he said that he was told about them “but late”.

17. The father acknowledged that the mother had attended the professionals yet he had not. How then could discussions about what was needed for their children take place if he did not accept the views that the mother held?

18. At the end of the hearing, there was no indication that the parties could communicate about anything concerning their children. The children will not benefit from having important decisions held up because their parents are unable to work out a way of resolving things.

19. Section 65DAC gives a good example of the required standard of parenting about decisions that the legislation expects of parents. It provides that if two or more persons are to share parental responsibility about major long-term issues, any order is taken to require the decision to be made jointly by those persons. That, as the legislation provides, requires each of those parents:

    (a)to consult the other person in relation to the decision to be made; and

    (b)to make a genuine effort to come to a joint decision.

20. There is ample evidence for me to find that no such co-operation can be seen on the horizon even though in January 2013, orders were made by consent for the parents to have equal shared parental responsibility. The reality is that consultation has not occurred. To the extent that the father might blame the mother for that, his attitude to her makes her reticence towards him understandable. There is no better example of that than the February email. Again, the evidence supports the conclusion that the presumption must be rebutted.

21. As to how decisions of a major long-term nature are made, there is no reason for me to change the reality of what has been happening. The mother indicated, and I accept, she will advise the father in writing and offer to hear his views on any of those important subjects.

22. I turn then to what orders should be made in this case.

23. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the children as the paramount consideration. The best interest principles are guided by the matters that the Court is required to consider as set out in s 60CC.

Section 60CC Considerations

1. Section 60CC refers to primary considerations and additional considerations. The primary ones require the Court to focus on the benefit to the children of having a meaningful relationship with both parents but also to protect them from physical and psychological harm from (relevantly) being exposed to abuse or family violence. To the extent that there was ever any doubt as to which of those takes priority, the legislation now makes clear that the Court is to give greater weight to the latter. For the reasons earlier mentioned, there is not sufficient evidence even including that of the family consultant, to make a finding that these children understand the nature of their parents’ behaviour and dispute. I consider it is more important to focus on these children having an opportunity to benefit from a meaningful relationship with both parents but particularly the father.

1. The evidence of the family consultant is that the father has to establish a situation where M trusts him to be safe. That may begin if he understands that J is safe but also if he is encouraged by the mother. Bearing in mind the findings about the father’s behaviour, that prospect is a way off yet.

2. There is currently a very close relationship between the mother and J and M and she has been their main carer. That can be seen in the evidence presented by the mother and the conclusion of the family consultant. There is nothing in the father’s evidence that would convince me that a change would benefit these children. Indeed, on the evidence of the family consultant and that provided by the mother, I find that with their resistance to change, their likely confusion and distress at their mother’s absence, it would not make such a significant move in their best interests. Forcing M to either live with or spend time with his father when he has been resistant since the 2013 orders, would also most likely create confusion and distress that he does not deserve to have. The solution has been proffered and it is a matter for the father to grasp the nettle.

3. What then about J? The evidence in relation to J’s capacity to be away from the mother for any length of time was sparse. The father’s position was that he had everything set up to be able to care for J and he wanted weekends. However, J too may be able to be away from his mother if he is prepared for it. Routine for J is important. A co-operative approach between the parents in relation to that preparation would possibly make such an increasing regime workable. The dilemma is the relationship between the parents. I could not find that such a relationship is currently possible.

4. To the extent that it is necessary to say so, the relationship between J and the father was good and doing the best I can with the paucity of evidence about the impact on J of any change of his living arrangements, I accept he had benefited from it. I cannot find there is any order that would benefit M in a similar way.

5. Turning then to the additional considerations in s 60CC, I propose to deal with those matters generally but otherwise rely upon the findings earlier set out.

6. There are no views of the children that can assist the Court here having regard to their level of development and understanding of their own needs.

7. The nature of the relationship of the mother with the children is very different from that of the father. Up until January 2013, the father was content for the mother to have the very significant role as carer of these children. Apart from the concession by the father that the mother has the capacity to provide appropriate physical care, it is important to also observe that the family consultant gave evidence that the Department of Human Services had received seven reports of concern and none had been substantiated. The mother’s care has therefore been the subject of scrutiny and nothing of concern appears obvious.

8. It has only been since things have not worked between the parties that the father’s approach has altered to one in which he sought that the children live with him. It was his view that they had no prospect of having a father unless they lived with him. I reject that concept. The father’s role has not changed and his perception of the care and development of the children was vague. He has plans to move house. He would get assistance if he had to be away at work. He would search for and find appropriate professionals for the children if he needed to. None of these are certainties and bearing in mind the time that the mother has had the children, there is no basis for me to criticise the nature of her relationship with the children.

9. The father had the opportunity to spend time under supervision on an interim basis pending final hearing after the then extant orders were suspended. He chose not to. His explanations varied. He remarked something to the effect that this would have been another change for J. He told the family consultant that it was unfair for J to be locked up like a monkey in a cage. He maintained the supervision facility was no longer available but there was no evidence that the centre would not have carried out some form of supervised time. What he ignored was that any time would have been part of J’s development. Throughout the earlier part of the children’s life, he did spend time with them when he could but he was away from them for significant periods of time. He did not participate with the professionals as I have indicated. Indeed, as he acknowledged, that was the mother’s role.

10. Time with the children is one thing but the area where he has also failed his children has been in the decision-making area. Whilst he argued he was excluded, I find that he chose not to participate and because of his behaviour, made the mother shrink from co-operation.

11. The father has, to his credit, maintained child support. In a curious statement to the family consultant, the father said that he was “able” to provide financially for the children if he was able to play a meaningful role in their lives. No party challenged the family consultant about that nor did the father indicate that it was a statement that was wrongly interpreted. I have taken the view that the father would do anything for these children which was indicated by his having set up a variety of things in his home for J. Nothing I heard would justify any criticism of the mother in respect of her financial support of these children. Albeit that the father has a very low opinion of the mother’s family, they too seem to have provided accommodation and physical assistance which is to be commended bearing in mind the disabilities that these children have.

12. For the reasons set out above, the family consultant was hesitant about change for the children because of their Autism and that hesitation seems to have been borne out in the professional advice given to the mother by the professionals dealing with the children.

13. I have no concerns about the mother’s capacity to provide for the children. She meets their emotional and physical needs and impressed as being very protective of them. The father did not have a proposal that would currently meet the needs of these children.

14. I accept that the father wants a role in the lives of his children but until such time as the relationship between he and the mother is improved, his attitude of treating her with complete disdain means that the children will not be encouraged to spend time with him. The father has to take a significant portion of the responsibility for the current situation.

15. I have already made findings about family violence. These children are at risk of witnessing the aggression of their father and the fear in their mother unless the situation improves.

16. There is now a family violence order in place in favour of the mother against the father. It is a final order and was made on 28 June 2013. This was in the midst of the problems arising out of the January 2013 orders. The father’s evidence was that the intervention orders were designed to “alienate” him from his children. According to the unchallenged evidence of the mother, the father could not moderate his language even at the Magistrates’ Court hearing. Whilst he was dismissive of such orders when he was at this Court, there was clearly a reasonable basis for the state magistrate to be concerned enough to make an order. The mother said that he was yelling things in court and when his emails were handed to the magistrate, he acknowledged not only that he had written them but that he would do so again. The unchallenged evidence of the mother is that the magistrate described the father as a very angry man and an explosive individual. Whilst the family violence order restricts the father’s contact with the mother, it does not preclude child-focused attempts to sort out parenting arrangements.

17. There is also evidence before this Court that there is a family violence order against the father brought by the maternal grandfather. The basis of that order had something to do with the father in a wheelchair running over the grandfather’s foot. Again, I am conscious of the disdain with which the father holds the mother’s family but it is important to recognise that these family members have a significant role in the lives of the children. That behaviour of the father cannot help solve the relationship between the father and the mother which is so critical to the future development and security of the children.

18. These parties have litigated on and off since their short relationship ended. They have been in and out of courts all of the lives of their children. They have never been able to successfully mediate any dispute between them. It is time for the focus to be returned to these children whose needs are profound. It is important to stop the mother in particular being distracted by litigation. Accordingly, even though there is much still to be sorted out as to how the father can develop and increase his relationship with the children, they deserve to have all proceedings end. Rather than make interim orders as some sort of build-up process, I find it is far better to put things to a permanent end. If the father follows the advice of the family consultant, the mother’s position of trying to make the relationship with the children may be enhanced. Final orders should therefore be made.

19. I am also acutely conscious that consent orders were only made in January 2013 and they quickly failed. I do not find that the mother failed to make them work. The father’s rigid approach to his relationship with her has exacerbated the problem. The time has come for the parties to find a way to co-operate as there is little else that the Court can do to assist these children.

20. I therefore propose to make orders relating to J which will occur on a monthly basis.  Changeover should be where J is comfortable and that currently appears to be B Contact Centre.  If there is a cost associated with that, the father’s financial position is so much stronger than that of the mother so he can carry that cost.

21. It was not the position of any party that specific injunctions be sought precluding time and contact between the father and M.  Thus, there is a prospect of such a meeting occurring.  I propose to leave the control of those situations to the mother, the school and the health professionals.  If they consider the father’s attendance may be prejudicial to M’s interests at the moment, they will have the control by being able to use their lawful rights to exclude him.  Hopefully, common sense will prevail.

LIST OF DOCUMENTS RELIED UPON BY THE PARTIES:

1. Affidavit of the mother filed 20 September 2013;

2. Affidavit of the father filed 14 October 2013 and annexed to that:

   -     Various intervention orders and applications;

   -     Previous affidavits of the mother to which the father’s affidavit obliquely and sometime specifically referred;

   -     Family reports of 7 March 2011 and 11 January 2013;

   -     B Contact Centre Report as to visits from April to August 2013;

   -     Home Access Network Report;

   -     Report of Mr L;

   -     Various photographs;

   -     Correspondence between the father and Relationships Australia, lawyers and in particular complaint by Dr N;

   -     Report of Dr N dated 24 June 2011;

   -     A page written by one of the children; and

   -     Emails between father and mother February to April 2013.

3. The Family Report of Ms E;

4. Summaries of argument;

5. Proposed handwritten orders of the father.

I certify that the preceding One Hundred and Twenty Three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 January 2014.

Associate: 

Date:  28 January 2014