P and P

[2008] FCWA 120

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	P and P [2008] FCWA 120
CORAM	:	THACKRAY CJ
HEARD	:	21 - 24 MAY 2007, 28 AUGUST 2007, 7 SEPTEMBER 2007 AND WRITTEN SUBMISSIONS
DELIVERED	:	16 OCTOBER 2008
FILE NO/S	:	PT 1273 of 2000
BETWEEN	:	P Applicant/Wife
AND
P Respondent/Husband
Catchwords:

CHILDREN - With whom a child spends time

Legislation:

Family Law Act 1975, s 60B, s 60CA, s 60CC, s 61DA, s 65DAA

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented
Respondent	:	Ms P Giles
Independent Children's Lawyer	:	Mr D Whittle

[2008] FCWA 120

Solicitors:

Applicant

Respondent

:	DCH Legal Group

Independent Children's Lawyer

:	Paterson & Dowding

Case(s) referred to in judgment(s):

B and B

Family Law Reform Act 1995 (1997) FLC 92-755

Cotton & Cotton (1983) FLC 91-330 Goode & Goode (2006) FLC 93-286 Marsden and Winch (No. 3) [2007] FamCA 1364
Re G

Children’s schooling (2000) FLC 93-025

[2008] FCWA 120

1 I am required to resolve longstanding disputes between [Mrs P](“the wife”) and

[Mr P](“the husband”) concerning their daughters, [Angela] (14), [Narelle] (12) and
[Leonie] (11).
2 [Angela] and [Narelle] have seen very little of their father in recent years and the
main issue concerning them is the repair of their fractured relationship. [Leonie] has enjoyed regular contact with her father and the main issue concerning her is whether she should spend more time with him.
3 There were two other controversial issues. The first related to the high school

the children should attend. The other related to substantial funds the husband received
from an insurance policy when the wife was diagnosed with cancer.

Delay in delivery of judgment

4 The hearing took place over four days in May 2007. The regrettable delay in delivery of these reasons requires explanation.
5 At the conclusion of the evidence (and before closing submissions), I was
informed that an “in principle” agreement had been reached on all matters, save for the dispute concerning schooling. I therefore directed the filing of submissions relating to the education issue and otherwise adjourned the matter, awaiting the filing of a Minute of Consent Orders.
6 Unfortunately, the settlement unravelled over a period of some months. At
a special appointment in September 2007, I directed the filing of written submissions on the substantive issues. These should have been completed by the middle of November 2007, but the final submission was not received until the middle of January 2008.
7 Given the long delay, it was then necessary for me to review the voluminous
evidence. Pressure of work prevented me from doing so prior to commencing long service leave in March 2008. Shortly after returning from leave in July 2008, I was informed that the parties wanted [Ms A] (a clinical psychologist who had given evidence at trial) to provide an updated report about her work with the family. The Principal Registrar wrote to the parties indicating that I would receive the report in evidence if both parties and the Independent Children’s Lawyer consented. The letter indicated that unless advice to the contrary was received, it would be presumed that neither party wished to cross-examine [Ms A].
8 [Ms A]’s report was received on 26 August 2008. The Principal Registrar then

wrote to the parties indicating that in view of the delay, they should provide advice of
any amendments to the orders sought in light of [Ms A]’s report.
9 Subsequently, it came to my attention that the wife had issued a Notice to cross-
examine [Ms A]. On 11 September 2008, the Principal Registrar wrote to the parties advising that I considered cross-examination should be allowed. The Principal Registrar asked the Independent Children’s Lawyer to liaise with [Ms A] and the parties to arrange a suitable time for cross-examination in the week commencing 29 September 2008.

[2008] FCWA 120

10 On 19 September 2008, correspondence was received from the husband’s
solicitors indicating that due to the unavailability of counsel, it would not be convenient for [Ms A] to be cross-examined in the week foreshadowed. They requested that the matter not be listed before the end of October 2008. I was also advised there were times in November 2008 when the husband would be unavailable.
11 Delivery of judgment has already been delayed far too long. I have very limited
availability in November/December 2008 and I have still not been advised of a suitable time for cross-examination of [Ms A]. I therefore intend to deliver these reasons without regard to [Ms A]’s updated report. I will then hear from the parties and the Independent Children's Lawyer as to whether or not the making of orders should be delayed pending receipt of the report and further cross-examination.

Orders sought by the wife

12 The orders sought by the wife in her Papers for the Judge filed in March 2007
were as follows:
“[Leonie] to continue to have contact with her father every alternate weekend
commencing 3pm Friday to 8.30am the following Monday.
When [Leonie] attains the age of ten years old, she can have contact with her father as she wishes.
[Angela] and [Narelle] to have contact with their father in accordance with their
wishes.
[Angela] to remain at [the local] Senior High School to complete her
secondary education.
[Narelle] and [Leonie] to have the opportunity to attend [the local] Senior High
School in accordance with their wishes.
The proceeds of the insurance payment be placed into a trust fund for the children to assist with their education and advancement in life.
The insurance policy be cancelled and the father relinquish his claim to further proceeds in the event of the death of the applicant mother.
The father pay for the entire cost of the Independent Children’s Lawyer.”

13 On 15 September 2008, following receipt of the letter from the Principal Registrar inviting amendments to the orders, the wife wrote advising that:

• [Leonie] had been seeing the husband each alternate weekend from Thursday afternoon until Monday morning and for one half of school holidays and she proposed that this should continue;
• [Angela] had been spending some time with the husband every alternate weekend and during holidays but has decided to “take

[2008] FCWA 120

a break for a while”. The wife said that [Angela] can “work out for herself the frequency of the visits with her Dad, as it is dependent on the quality of the relationship”;

• [Narelle] “has not seen her Dad on a regular basis for 3 years now. She wishes to keep it that way”.

Orders sought by the husband

14 The orders sought by the husband were contained in a Minute provided under

cover of a letter dated 2 January 2008. The document ran to ten pages. The main
elements of his proposal were as follows:

• The husband and the wife to have joint parental responsibility.
• [Angela] to live with the wife and spend no less than three hours a fortnight with the husband in addition to contact on special occasions.
• [Ms A] to provide counselling for [Angela] for six months in order to effect a reconciliation between [Angela] and the husband with a view to bringing about a regular regime of contact.
• [Narelle] to spend time with the husband on a graduated programme increasing to after school on Friday to the commencement of school on Monday each alternate week in addition to contact on special occasions.
• If [Narelle] wishes, the alternate week contact to be extended to the Friday.
• [Narelle] to see [Ms A] on the same basis as proposed for [Angela].
• [Leonie] to live with the husband and the wife on an alternate week and week about basis, with school holiday time to be shared between the parents. Arrangements to be made for [Leonie] to spend time with each parent on special occasions.
• [Leonie] to complete her primary education at [ a college].
• [Leonie] to be interviewed by [Ms A] and for [Ms A] to provide counselling if deemed necessary.
• The husband to meet all professional fees associated with the counselling with [Ms A].
• The parents to share transportation arrangements.
• The husband and wife to meet one half of the cost of school fees.

[2008] FCWA 120

• Each party to have reasonable contact by telephone, email and post with the children when they are not resident with them.
• [Ms A] to provide a report to the Court at the conclusion of six months as to the outcome of the counselling and for the living arrangements for [Angela] and [Narelle] to be then reviewed in the light of the report and any other evidence.
• The husband to be permitted to take the children out of Australia for a holiday to [Europe] in the middle of 2009.

15 The amendments proposed by the husband after receipt of [Ms A]’s updated

report related principally to the way in which his time with [Narelle] would build up to
alternate weekends.

Orders sought by the Independent Children's Lawyer

16 The Independent Children’s Lawyer ultimately sought orders in terms of the
Minute annexed to his submissions received on 26 October 2007. The main elements of his proposal were as follows:

• The children to reside with the wife.
• The wife to have sole responsibility for making decisions about the children’s education.
• The husband and wife to have responsibility for the day-to-day care, welfare and development of the children when they are spending time with either the wife or the husband.
• [Angela] and [Narelle] to see the husband in accordance with recommendations made by [Ms A], but on the basis the children would spend up to 3 hours each fortnight with the husband.
• After a period of 6 months, and subject to the views of [Ms A], [Angela] and [Narelle] to spend time with the husband in accordance with their wishes.
• [Leonie] to spend time with the husband from after school on Thursday to commencement of school the following Tuesday each alternate weekend and for one-half of school holidays.
• The parties and the Independent Children’s Lawyer to have liberty to relist the proceedings at the expiration of 6 months.
• The proceedings otherwise be adjourned generally.

[2008] FCWA 120

Terms of settlement

17 Although the husband and wife were unable to agree the final terms, I was

informed that the main elements of the agreement reached at the conclusion of the trial
were as follows:

•

[Angela] and [Narelle] would spend at least three hours a fortnight with the husband for a period of up to six months;

•

The “where and how” of the visits would be subject to the children’s wishes, but not the visits themselves;

•

Any additional time the older girls wished to spend with the husband would be encouraged and supported by the wife;

•

[Ms A] would be involved in the process of re-establishing contact between the older girls and the husband;

•

[Leonie] would spend time with the husband from after school on Thursday to before school on Tuesday each alternate week and for one half of school holidays.

Background

18 The wife is aged 42 years and works as [a secondary school] teacher. The husband is aged 47 years and works as [an accountant].
19 The parties married in February 1990 and separated in October 1999. They were
divorced in 2001.
20 There were three children of the marriage, [Angela] born in September 1993, [Narelle] born in August 1995 and [Leonie] born in May 1997.
21 The wife gave up employment to look after the children and did not rejoin the

workforce until 2004, when she started teaching. At the time of trial she was working
at [ a college].
22 The husband has always been in full-time employment, although he has not

worked on Mondays for many years. His work has involved him travelling to the
Eastern States on occasions.
23 The girls have all resided with the wife since the separation. There have been
significant variations in their contact with the husband. For many years following separation, the husband had regular and substantial contact. However, this changed on 4 October 2004, when the husband physically disciplined [Angela], leaving her with bruises and abrasions. He was charged with assault and later convicted. The younger girls were present in the husband’s home during the assault.
24 It is unnecessary to trace in detail all of the repercussions of this assault,
including the making of orders for supervision of contact and the various changes in the contact arrangements. It is sufficient to say that by late 2005, neither [Angela] nor [Narelle] was prepared to have any contact with the husband. There were some hiccups in the husband’s contact with [Leonie], but she has always wanted to spend

[2008] FCWA 120

time with him and has done so on a regular basis. At the time of trial, [Leonie] was seeing the husband each alternate weekend from Friday afternoon to Monday morning (with some additional times during school holidays).
25 [Mr L], a consultant psychiatrist, was engaged as a Court Expert to provide

a report concerning the family after the assault on [Angela]. He interviewed the
parents and all three children in December 2004 and again in June 2006.
26 In his 2006 report, [Mr L] recommended that the husband seek counselling from

a Clinical Psychologist who is an expert in child development. In making this
recommendation, [Mr L] said the husband was:
“highly motivated to understand his children and believes that he does. However in the various reported interactions I believe that he could learn a great deal more about the way to relate to young, pre-adolescent and adolescent children. I do not see this as therapy or treatment but rather as a way of improving his empathic parenting skills”.

27 Acting in accordance with [Mr L]’s recommendation, the husband consulted
[Ms A], a highly experienced clinical psychologist. The husband saw [Ms A] on many occasions in 2006 and 2007. With the wife’s co-operation, [Ms A] met with [Angela] and [Narelle] and then saw them with their father in May 2007, just a few weeks before trial.
28 There had been some signs of a thaw in the frosty relationship between the older
girls and the husband in the early part of 2007. Although she had hitherto refused to speak with the husband when he telephoned, [Angela] had a lengthy telephone conversation with him when he spoke with [Leonie] (in the wife’s absence) in February 2007. The husband said he finished the conversation feeling he had been speaking with “the old [Angela]”. In the same month, the husband recorded that, unusually, [Narelle] had spoken with him in a friendly fashion when he was collecting [Leonie] at school (in the wife’s absence).
29 In March 2007, the relationship between the wife and [Angela] had deteriorated

to the extent that the wife asked the husband to take [Angela] for a while. The wife
acknowledged that during the course of the conversation she said to the husband:
“This is all your fault. You need to take responsibility for your daughter acting this way. She has so much anger built up inside of her toward you. … I despise you. You disgust me. You are a disgusting piece of humanity.”

30 The wife claims that the husband responded by saying that she was trying to “set
him up”. The husband said he was unable to take [Angela] because he was living with his mother, while his girlfriend and her son were visiting from the Eastern States and staying in his home. By the time the husband was ready to have [Angela] (a week later and after his girlfriend had gone home), the wife had resolved matters with [Angela].
31 The husband did, however, see both [Angela] and [Narelle] on the day after the
wife requested him to take [Angela]. The wife allowed all three girls to visit his home

[2008] FCWA 120

and go out for dinner at a restaurant. They were accompanied by the husband’s girlfriend and the husband’s mother. This was the first time in some years that all three children had been with the husband.
32 During the course of the dinner, the husband talked to [Angela] about what had
happened on the previous day. [Angela] said she had “just flipped” and admitted she had slapped her mother twice. The husband acknowledged that [Angela] also raised with him what he calls “the disciplinary incident” of October 2004. He said he apologised to [Angela] – and then reminded her that the wife had also made a mistake in bruising her whilst disciplining her a few years earlier. There was also discussion about [Angela]’s school, with the husband explaining why he thought other schools were better than the one she was attending. The wife claimed that [Angela] came home from the restaurant, went into the back garden and “yelled her lungs out”.
33 There was no resumption of regular contact by the husband with [Angela] and

[Narelle] following the dinner in March 2007, although they saw him with [Ms A] in
May 2007.
34 In the meantime, the husband had seen [Narelle] at her school’s open night on
28 March 2007. The husband went to [Narelle]’s room to see the work she had been doing and found [Narelle] and her friends playing with a baby. What then transpired indicates why the husband might be reasonably regarded as his “own worst enemy”. His version of what occurred is as follows:

“26. I greeted [Narelle] warmly and asked her to show me her work. She replied, “I’m looking after the baby”. I pointed out that there were plenty of others including the child’s brother and her parents and it was now her chance to show me her work. [Narelle] reluctantly took me to her desk. We opened one of her exercise books and [Narelle] said, “Can’t you just read the book?” I told her that I wanted her to show me what she had done. We were looking at a project on Tanzania and I remarked that we still had a World Vision child that we sponsored living in Kenya. [Narelle] was very inattentive and distracted and I asked her if something was the matter.
27. [Narelle] said to me, “I don’t live with you.” I told her that may be the case but I cared very much for her and was greatly interested in all she did.
28. [Narelle] then said, “I don’t like you”. I asked her why that was the case. [Narelle] responded, “You know.” I replied that I didn’t and could she tell me why.
29. [Narelle] then stated, “Because of the way that you have treated Mum.”
30. I asked, “How have I treated her?”
31. [Narelle] responded, “Cruelly”.
32. I asked, “In what way?” [Narelle] then said, “You write her horrible letters. You have physically hurt her.”

[2008] FCWA 120

33. I asked, “Do you believe everything that Mum says about me?”
34. At that point, [Narelle] walked off, leaving the room. She stuck her head in the door a few times to see if I was there but refused to come and show me any more of her work.”

Observations of the parties

35 I formed a poor opinion of both parties. While each would protest that they have
always acted in the best interests of their children, I consider they have successfully combined to ruin their daughters’ lives. I fear the repercussions will be felt by the children and those around them for years to come.
36 I found the husband to be a stubborn man, who appears used to getting his own
way by steady persistence. He presented as authoritarian, arrogant and passively aggressive. He professes strong Christian faith, which he has used to justify physical abuse of his children in order to obtain their unquestioning obedience. Although [Ms A] expressed the opinion that the husband “is not lacking in empathy”, that characteristic was not on display during the trial.

37 On the other hand, there were more examples of the husband being apparently
reasonable and compromising in matters involving the children than there were of the wife behaving in a similar fashion. There nevertheless appeared to be strong foundation for the wife’s assertion that the husband’s behaviour has rotated through a spectrum of “nice-normal-nasty”. One example, of many, was the husband’s very appropriate correspondence to the wife when he learned of her breast cancer, but followed shortly thereafter by an unpleasant message left on her answering machine.
38 The husband candidly admitted to [Ms A] that:
“He is a person who likes order, is highly focused and tends to want to solve problems by ‘fixing’. He is aware his levels of energy, his drive, and solution- focused approach to life can be challenging for some.”

39 [Mr L] expressed the following opinion, which I accept:
“A major difficulty for [Mr P] is his personality structure and his expectations of others without necessarily being in touch with their own feelings and attitudes. He might well be described as having a Personality Structure with Obsessional Traits and he does show some rigidity of attitude. This is not a psychiatric disorder but does lead to difficulties such as the ones he now faces.
The evidence presented by himself and in his affidavit suggests that he strongly believes that what he does is for the best and that others should follow his advice or instructions. He seems puzzled when others, such as his former wife, reacts by resenting the demands and will not meet with him on his own terms. This also applies to the children, especially [Angela].”

40 Predictably, the husband responded directly to [Mr L], strongly contesting his opinion about his personality structure and rigidity of attitude.

[2008] FCWA 120

41 I do not have sufficient evidence to assess what kind of person the wife was
before her relationship with her husband went sour. I accept there is a great deal about the husband which gave her ample reason to have a jaundiced view of him. Whether as a result of this, or because of her underlying personality, the wife now presents as a very prickly and difficult individual. She is inclined to be self-righteous and lacking insight into her part in the unfortunate family dynamics. In her opening address, she announced, “We are all here today to lament the fact that the husband has blown his chance to have a relationship with his kids”. There was no acknowledgement of her own breathtakingly pedantic conduct in matters involving the children.
42 On occasions in the course of the trial (during which she represented herself)
I detected some more positive elements of the wife’s personality attempting to break through. Although she professes a strong Christian faith, she did not come across as overly authoritarian and consumed by dogma. She also demonstrated a good understanding of the different personalities and needs of each of the children.
43 Both parties have engaged in “tit for tat” behaviour relating to the children. It

would not be productive to discuss their many complaints about the other in detail.
The husband’s apparently justifiable concerns about the wife’s behaviour included:

• The wife’s actions in withdrawing her agreement to the children being collected early to go to a church camp because the husband had not agreed with her proposals for ballet rehearsals;
• The wife’s insistence on the husband personally collecting the children, for example when he was hosting a large dinner at home;
• The wife’s refusal to hand over the piano book to [Angela];
• The wife’s refusal to give the husband a copy of a portrait photo of the children, saying he could organise one in his “own time”;
• The wife’s later refusal to give the husband a recent photo of all of the children together (at a time when he had not seen them together for a long time);
• The wife’s threats to throw out items the husband had sent to her for the children, saying, “I will not have you cluttering up my house with your stuff”;
• The wife’s actions in telling the husband to “bury his father in his own time” if he wanted to take the children to their grandfather’s funeral – and then only agreeing that they could attend if the husband gave up time with the children the following weekend. (Although the wife says now she regrets this behaviour, her cross-examination of the husband might suggest otherwise.)
44 Those parts of the husband’s evidence tending to suggest that he has been prepared to make compromises in the interests of the children includes:

• paragraph 178 of his affidavit regarding the wife attending at choir;
• paragraph 202 regarding his offer for the wife to attend one of [Angela]’s piano lessons (in his absence if required);
• paragraph 291 regarding arrangements to allow the wife to take the children to her church camp, even though she had not agreed to him taking the children to his church camp.

[2008] FCWA 120

45 On the other hand, I found the husband’s communications with the wife to be
often condescending and I can understand why she found him to be profoundly irritating. He also ignored what I regarded as her reasonable (in the circumstances) requests to restrict his entries in the communication book to two pages or less. There was also evidence to indicate that he sometimes placed more weight on his “rights” than on what might be best for the children. One example was calling the police to the wife’s home on [Narelle]’s birthday in 2002 – not over a dispute as to whether he could see her that day but whether he could see her at the time he thought he was entitled to see her. Another example was when he called the police to the church the children were attending (as to which see the discussion below).
46 In considering these examples of the parties’ conduct, it is important to keep in
mind that the husband had representation throughout the proceedings. He provided an exceptionally long affidavit extolling his own virtues and disparaging the apparent inflexibility of the wife. He also had experienced counsel to highlight the wife’s extreme conduct and to emphasise his own qualities. The wife was self represented. She provided far less voluminous evidence than did the husband. She did not have counsel to assist her to deconstruct the picture the husband had painted of himself, although on occasions she was able to demonstrate that he had a tendency to exaggerate (for example, his complaint that she did not keep him informed about medical issues).
47 These courtroom dynamics brought to mind the remarks of Mr Justice Wilson in his 2002 Atkin Lecture, later published as ‘The Misnomer of Family Law’ in 2003 Fam Law 29, which are of particular importance in cases where only one party is self represented:
“… I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience a father. One sees him in action throughout the case, not just when produced by his advocate for his performance in the witness-box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore, one sees him cross-examine the mother…But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether hand-overs of the child between them would proceed sensibly, than to study their language, including of the body, towards each other in that unenviable situation.”

48 The wife was left much more exposed to scrutiny than was the husband because

of her dual role as litigant and advocate in a lengthy trial. The husband kept a “low
profile” in the courtroom, busying himself throughout with the typing of a transcript.

Applicable law

49 Section 60CA of the Family Law Act 1975 (“the Act”) makes clear that I am required to treat the girls’ best interests as the paramount consideration. In doing so,

[2008] FCWA 120

I will be guided by the relevant objects of the Act and the principles underlying those objects. The stated objects 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;
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(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.

50 These objects are somewhat more comprehensive than the previously stated

object of the relevant part of the Act. Prior to the 2006 amendments, the stated object
was:
“…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

51 The first of the four “new” objects of the Act set out above is far from novel. It

echoes two of the guiding principles which were previously to be found in the Act,
namely:

“(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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…”

52 The Full Court of the Family Court of Australia has previously considered the
impact of statutory amendments dealing with the stated objects of the law relating to children of a marriage. In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at [9.2], the Full Court said, in speaking of the 1995 amendments to the Act:
“It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.”

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53 Notwithstanding the changes of emphasis and terminology made by the 1995 amendments, the Full Court was in no doubt about the core task of judges entrusted with responsibility for making decisions about the welfare of children. The Full Court said at [9.51] to [9.60] (my emphasis added):
“In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.

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The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in Mallett v Mallet (1984) FLC 91-507; (1984) 156 CLR 605 and ZP v PS (1994) FLC 92-480; (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.
As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.
In this approach no question of a presumption or onus arises. The analysis by McLachlin J in Gordon v Goertz, supra, is compelling. The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind- set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”. See the judgment of Brennan J (as he then was) in Brown and Pederson, supra.
In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”

54 It will be noted that the Full Court made many references in this citation to s 65E
of the Act, which was the provision making the best interests of the child the paramount consideration. Section 65E has now been repealed, but only for the

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purpose of advancing it to a position of earlier prominence in the Act. In my view, many of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the 2006 amendments. In particular, it remains the case that the paramountcy provision defines the essential issue and the Act still contemplates individual justice.
55 The Full Court has said in Goode & Goode (2006) FLC 93-286 that the 2006 amendments evince a “legislative intent” in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children. However, the legislative intent is subject to many important qualifications. Fundamentally, it is subject to the need to protect children from harm, abuse and family violence. It is also dependent upon the arrangement being in the children’s best interests and reasonably practicable. The legislative intent is also tempered by s 60CC(4), which requires the Court to consider the extent to which each parent has fulfilled (or failed to fulfil) his or her responsibilities as a parent.
56 In enacting the 2006 amendments, Parliament has given legislative voice to what
was already a presumption that responsibility for decision making about children should ideally be shared between parents. The presumption does not apply if there are reasonable grounds to believe that either parent, or a person who lives with either parent, has engaged in child abuse or family violence (as defined by the Act). The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
57 If I make an order that the parties have equal shared parental responsibility,
I would then be obliged by s 65DAA to consider whether or not the children spending equal time with each parent would be in their best interests and reasonably practicable. If such an outcome is found to be in their best interests and reasonably practicable I am required to consider making an order to provide for them to spend equal time with each parent. If for some reason I decide that such an order would not be in their best interests and/or not reasonably practicable, then I am required to consider whether or not the children spending “substantial and significant time” with each parent would be in their best interests and reasonably practicable. If such an outcome is found to be in their best interests and reasonably practicable, I am required to consider making an order to provide for the children to spend “substantial and significant time” with each parent.

58 By virtue of section 65DAA(3), the children’s time with each parent would only
be “substantial and significant” if it included days that do not fall on weekends or holidays (as well as weekends and holidays). The time must also be such as to allow each parent to be involved in the children’s “daily routine” and in occasions and events that are of “particular significance” to the children. Finally, the time must also allow the children to be involved in occasions and events that are of “special significance” to each parent.
59 As will be apparent, my overriding objective must be to make the orders most
likely to promote the girls’ best interests. The legislation itself specifies the matters I must take into account in determining what is in their best interests. Section

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60CC(2) details what are called the “primary considerations” and s 60CC(3) details
the “additional considerations” to be taken into account.
60 This dichotomy between “primary” and “additional” considerations was
introduced into the legislation in 2006. There has not yet been a great deal of guidance from the Full Court concerning the way in which respect is to be paid to the intention of Parliament in specifying two factors as being the “primary” considerations. However, the Full Court (Warnick & Thackray JJ, with whom Le Poer Trench J agreed) had this to say in Marsden and Winch (No. 3) [2007] FamCA 1364:
“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 the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be 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 maintaining such a relationship.”

61 It is within the legal framework described above that I will proceed to determine
this case.

The primary considerations

62 I turn now to the two primary considerations.
The benefit to the child of having a meaningful relationship with both of the child’s parents
63 It is appropriate at the outset to reflect on the language Parliament has used in
describing the first of the primary considerations. It is also appropriate to record that judges of the Family Court have long considered the relationships that children have with both of their parents to be of utmost importance. For example, Nygh J said in Cotton & Cotton (1983) FLC 91-330, at 78,252-253 (my emphasis added):
“The test which must apply in proceedings involving children is that of the welfare of the child being the paramount consideration, which is in my view the one and only principle to be applied. It means that in each case the Court must make an independent investigation of what the welfare of the child requires, and the Court is not very much assisted by recourse to general principles other than that principle. It is true that we can fall back on generally accepted experiences and perceptions in so doing as a guide, but care should be taken not to elevate any of these generally accepted perceptions into presumptions which can only be displaced by evidence to the contrary.

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One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a meaningful relation with each of his or her parents. That is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated. It is a trite observation that the parties to a marriage may divorce one another, but they can never divorce themselves from their children. In that sense, the parties remain tied to one another, at least, until those children can stand on their own two feet which may not necessarily occur at 18 years of age or 21 years of age.
However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to be a positive harm to the child – it is the emotional relationship which counts and not the inherent harmfulness of the parent as such: thus I can well imagine that in certain circumstances a woman who leads a totally immoral life such as a prostitute may have something to offer her children. On the other hand, it may be that a person who leads a life which to the general observer is one of a pillar of rectitude has nothing to offer to his children. In this case, as I have said, it is not a question of generalisation. One must come down to the real situation of the parties.”

64 I consider the observations of Nygh J to be most instructive when considering
this factor. The focus should not be on the “meaningful relationship”, but the benefit to the child of such a relationship. The 2006 amendments should not be read as indicating that the maintaining (or establishment) of the relationship is an end in itself.
65 Both parties are of the view that it is in [Leonie]’s best interests to have
a meaningful relationship with the husband, even though the wife pointedly refused to acknowledge that [Leonie] was “very attached” to her father, preferring instead to say only that “she enjoys spending time with him”. [Leonie] obviously enjoys a very good relationship with her father and I am satisfied it is in her best interests for this to be maintained and fostered.
66 Issues associated with the relationship between the husband and [Angela] and
[Narelle] are far more complex. Both parents say it would be desirable for them to form a good relationship; however, the wife believes this will be very difficult to achieve, particularly in the case of [Narelle].
67 I consider the evidence given by [Ms A] concerning the girls’ meeting with the
husband just before the trial to be of importance in determining the desirability and viability of them developing a better relationship. [Ms A] gave her evidence in a most thoughtful and impressive fashion. She is a well qualified and highly experienced professional. While I bear in mind that she was essentially the husband’s therapist, her evidence was measured and balanced and she was prepared to be critical of the

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husband. She also qualified her evidence with appropriate disclaimers, for example, that she had only seen the children with the husband once and had not read all of the material, and was therefore not aware of the entire background.
68 [Ms A]’s description of the interaction between the children and the husband at
their joint meeting was to the effect that there was a demonstration of mutual affection and warmth. Both [Angela] and [Narelle] quickly relaxed in the company of their father, obviously enjoyed being with him and competed for his attention. Indeed, with the agreement of the wife, the session ran over time as the girls did not want it to end.
69 [Ms A] volunteered that at one stage during the session the husband
demonstrated his inclination to “teach” the girls and went on “a bit too long” rather than simply enjoying their company. She observed, however, that the girls did not respond adversely to this, other than by “switching off a bit”. She felt that the husband appeared to be keeping in mind “some of the things” she had talked with him about in her private sessions, especially the need to be empathic and “tuned in” to what was happening with the girls. He did not, for example, “jump on” [Angela] when she used some provocative language once or twice.
70 [Ms A] noted that in preparation for the meeting, [Narelle] had been quite
negative about her father and seemed to be quite unhappy about the process. However, [Ms A] said it was “lovely to see” the rapidity with which [Narelle] became “more relaxed, spontaneous and faithful” when they were brought together. She said that [Narelle] called her father “Daddy”, made eye contact and showed “a lot of warmth”. These remarks were consistent with [Mr L] initial observation that [Narelle] “clearly loves her Dad”.
71 In [Ms A]’s opinion, the way in which both girls interacted with their father
indicated that there was a relationship worth building on. She said that to a casual observer the interaction would have “looked great”, with the children chatting and having fun with their father. She said that, as a professional observer, she felt “there seemed to be sufficient there to be going back to the good memories of relating to their father, rather than being focussed on the more recent not so good memories”.
72 [Ms A] warned, however, that [Angela] has a “very compelling presence and it
is entirely possible that she will make her own decisions” about seeing her father. She also acknowledged there could be “quite a difficult process” with [Narelle], as she is “highly identified with her mother” and may not “be forced along by [Angela]”, even if [Angela] was prepared to see her father.
73 The wife gave evidence that the girls did not say anything to her about what had
occurred in the session at [Ms A]’s rooms, other than that it had been “OK” and that they had played games with their father. She said they “seemed indifferent” about the meeting. She also noted that the girls had not shown any affection towards their father when she picked them up. I accept [Ms A]’s evidence that such a response is very common for children involved in a dispute such as this, since they do not want to give information to a parent that might not be welcomed or which might hurt the parent’s feelings.

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74 I am of the view that there would be benefit to both [Angela] and [Narelle] in
developing a meaningful relationship with their father. This benefit, however, will only be fully realised if the husband can put into practice the theory he has learned from [Ms A] about better ways to parent his children. If, for example, the husband behaved in the overly prescriptive and inappropriate way described in the Mother Hen reports (annexure “C” to the wife’s affidavit of 4 January 2006), I would anticipate the older girls would soon lose interest in having a relationship with him. It is to the husband’s credit that he has, albeit belatedly, sought expert help to assist him improve his parenting skills. [Ms A] considers that he has been making progress and there are some positive indications to that effect. However, the way in which he dealt with [Narelle] when she wanted to play with the baby at the school open night in 2007 suggests there is still room for improvement.
75 I will later in these reasons discuss [Ms A]’s suggestions about the way in which

it may be possible to move toward the development of some form of meaningful
relationship between the husband and [Angela] and [Narelle].
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
76 A most disturbing aspect of this matter has been the extent to which both parents, but particularly the husband, have physically “disciplined” the children.
77 At one stage of their marriage, the husband and wife provided training to
members of their church using a parenting program known as “Growing Kids God’s Way”. The program recommended physical punishment of children, including the use of an implement to deliver the punishment.
78 It was unclear to what extent the parties hit the children prior to separation, but it
was clearly part of their culture to do so, especially in the case of [Angela] who is the most headstrong of the girls. The wife admitted she had used a flyswat on the children and once washed out [Angela]’s mouth with soap and water. She said, however, that she became uncomfortable with physical discipline many years ago and certainly never used a belt on the children, as the husband had done.
79 The wife vehemently refuted the evidence of [Ms W], who said she had
observed the wife physically disciplining [Angela] harshly when she was only about 17 months of age. I found [Ms W] to be a generally reliable witness, albeit somewhat biased in favour of the husband (and unaware that he had been convicted of assaulting [Angela]). Whilst I was inclined to accept her evidence, it is possible [Angela] was somewhat older at the time of the incident than [Ms W] calculated.
80 There was also an incident in September 1999 (i.e. at the time of separation)
which ended up with [Narelle] receiving a blood nose. [Angela] informed [Mr L] that she remembered how her mother and father were pulling [Narelle] in opposite directions at the time, resulting in [Narelle] falling over and being hurt.
81 In February 2001, the husband wrote to the wife concerning [Angela] having
a large bruise, which had allegedly been caused by the wife hitting her with a wooden spoon. The wife denied having inflicted this injury. I accept that [Angela] made such

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a complaint to the husband; however, there have been occasions when [Angela] has either lied, exaggerated or retracted a true allegation. This makes it difficult to determine how much weight to place on what she has told her warring parents. (As the wife said in her closing submissions, “truth is the first casualty in war”.)
82 The wife did admit that in the middle of 2001 she hit [Angela] with a spoon,
causing bruising. The husband wrote to the wife about this on 2 July 2001 as follows:
“[Angela] has bruising on four areas of her body near the bottom. I understand
you have done this because [Angela] is not getting ready for school on time.
I do not question your discipline – I question why she has marks on the side and front of her thighs – Please explain.
Is there not another form of discipline (withdrawal of privileges for example) that may address this better?”

83 The wife’s (very appropriate) response on 7 July 2001 read as follows:
“Yes, you are quite right. I didn’t handle that situation very well at all. I wasn’t thinking clearly or proactively. I was under a lot of pressure last week, but that is still no excuse.”

84 The wife said, and I am inclined to accept, that the bruises she inflicted were nowhere near as serious as those caused by the husband in October 2004.
85 [Angela] reported to the husband in September 2001 that her mother had again
hit her with a wooden spoon because she had her photograph taken with the husband at school. The wife denied the allegation and [Angela] then told the husband she had made up the story. The husband apologised for suggesting the wife had hit [Angela].
86 The husband also asserts that in December 2002 all three children complained
about the wife’s behaviour, with [Angela] alleging that her mother had “been screeching at her and kicking and pummelling her”. I am prepared to accept that [Angela] told the husband this.
87 On 29 March 2003, the wife wrote to the husband saying that [Narelle] had
complained he had hit her with a fly swatter and had kicked her. She asked the husband to “go easy on her” and said that he had “more options than physical aggression in disciplining her”. The husband responded by saying (my emphasis added in this and later citations):
“Last week [Narelle] was disciplined not for being singularly disobedient, but
for being constantly disobedient.
Yes, she was swatted with the fly swatter. This was deliberate, as I indeed know my strength and this was an excellent means of moderating it. Do I not recollect you using a fly swatter on the girls as toddlers?

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She hurt her knee by tripping over herself in moving away from the fly swatter. Contrary to your assertion, I used my leg to move [Narelle] along the floor, not to kick her.
I am especially aware of [Narelle]’s disposition, and it gives me great insight into what it must have been like for you as a child, but without parental support.
I do not discipline my children with aggression but with measure.”

88 The husband justified his behaviour in his affidavit by saying:
“[Narelle] had been sullen, lying on the floor and refusing to get up or move at all. I used my leg below the knee to slide her along the floor so I could move into the kitchen.”

89 On 6 April 2003 the wife wrote to the husband, saying:
“[Narelle] told me that you choked her last Sunday morning because she couldn’t find her sandals. That really upset her and you need to stop coming down so heavy on her.”

90 The husband responded by saying that [Narelle] had exaggerated. He said:
“I don’t know where you get your terminology from. Yes, I did place my hands around [Narelle]’s shoulders and neck, and in retrospect I may have been a little harsh with her but ‘choking?’ I don’t think so.”

91 On 9 June 2003, the husband wrote to the wife in these terms:
“As I hear it from [Angela], the pair of you had an argument last Tuesday, that culminated in you slapping her across the face with considerable force. [Angela] and [Narelle], who was observing, said you then proceeded to say, ‘Sorry. Sorry …’ and [Angela] was then provoked to lash out at you, with you trying to restrain her.
…
I can imagine that [Angela] can provoke you, but this response is not the answer. Send her to her room, impose some social deprivation, but don’t get caught up physically.
…
When I discipline her, not always easy in the heat of the moment, I send her to my bedroom for some time out. Depending on what it is that she has infringed, I use one of a variety of disciplinary measures. Yes, that includes an occasional strap to the backside, but I try and appeal to her that she is getting too big for this.”

92 The wife responded by saying she had not read anything the husband had written, because it exceeded the two page limit she had imposed.

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93 On 11 August 2003 the husband wrote to the wife:
“[Angela] and the girls tell me that you grabbed her by the hair last Saturday in the car and yanking her head down for considerable force for an infraction. Not only did this cause severe pain for [Angela], but I am also told that you had to correct the car’s steering as well. Please see my correspondence 9/12/2, p2. Please take control of your actions.”

94 The wife responded on 16 August 2003, as follows:
“[Angela] told me you grabbed her head with both your hands and shook it (with considerable force) last week. Touche! She was really upset by it, and that her [sic] smacked her as well. What do they say about people in glass houses throwing stones? Be grateful you have 3 healthy, happy girls who you see regularly. You are a lucky man and have a lot to be thankful for. Stop fighting. I am sick and tired of it and I would love to live in peace. All you do is keep the tone very ugly and nasty by all your terrible words and actions towards me. Just leave me be, I ask you.”

95 The husband recorded in his affidavit that he responded to the wife on 18 August

2003, by saying:
“You are correct, I did all that you said, apart from what you call “considerable
force”.”

96 In fact, the husband had gone on to say more than he recorded in his affidavit. The husband’s correspondence also contained the following:
“Yes, I held her head, yes, I also took her to the bedroom and disciplined
her with the belt. What [Angela] did not tell you was that when I held her head I asked, ‘would you now like me to rip your hair with a good yank like Mummy did today?’. I said I am not going to react like that because that would be poor anger management by me. Instead she went to the bedroom where she was eventually disciplined. What was the difference between us? Yours was a kneejerk violent action. Mine was thought out, calculated, measured and disciplined. Please discipline with control, [the mother].”

97 On 11 October 2003, the wife wrote to the husband, as follows:

“The girls told me about what you do to them when you are angry,
namely:

• pinch them by the top skin on their ear and pull them;
• grab them by the throat, throw them against the wall and lift them off the ground;
• smack them with a belt, and using the buckle to hit their thighs/bottoms;
• yell at them and “make them feel like criminals”;

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I know you know all the theory behind appropriate discipline, but from what the girls say, you don’t know the practice. Let me tell you the impact it is having on them:

• they feel afraid of you;
• they learn nothing about appropriate behaviour;
• they see you be “mean” to them and “nice” to other people;
• they see their Dad treating them badly and not modelling how they should be treated;
• they see their big Dad picking on three little girls – cowardly.
I have told the girls they are to call me if things get difficult with you, because they feel defenceless when you treat them this way. You need to stop it.”

98 The husband responded on 20 October 2003, as follows:
“I note that you have raised a variety of allegations on 11 October. I believe you got to this subject by yelling at the girls as you lost your temper due to their leaving the house untidy as you prepared to go out.
Let me assure you your interpretation is a gross exaggeration. Any discipline meted out is appropriate to the situation and the issue fully discussed. I do not lose the handle in the same way as the girls describe to me about you.
I have learned to take what they tell me about you with a degree of forbearance. It is hard being a parent and knowing what to do in each and every situation. I am sure that I have infrequently chosen a disciplinary action that in hindsight may have been handled another way. I do not, however, lose my temper in the way the girls have described about you. I merely bring it to your attention to remind you to be restrained and reasoned in your responses.
So relax [the mother]. They are in very capable and loving hands.”

99 In January 2004, the parties had an heated argument at the commencement of
a contact visit. The two younger children had come outside and, according to the husband, the wife then slammed the door shut. The husband says it slammed so hard that it bounced open again and she then slammed it shut again. The husband said:
“[Angela] was still inside so I waited for her to come out. When she did, she was crying and hobbling and complaining that [the wife] had caught her foot with the door when she had slammed it”.

100 The husband presumably thought it would be helpful after this incident to send
the wife a brochure for an anger management course run by a Christian organisation, which he said he would also attend. The wife rejected his proposal saying, inter alia, “I don’t tell you how to run your life, so stay out of mine!”. According to the husband, he did attend the anger management course.

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101 In April 2004, whilst driving home from a holiday, the husband stopped the car

after [Angela] hit [Leonie] on the head with a book. His description of what occurred
is as follows:

“370. I slowed the car and pulled over to the shoulder of the road. I turned in my seat and told her that I had had quite enough of her behaviour. I tapped her with the palm of my hand on the side of her head lightly and rebuked her for hitting her sister. I picked up the same book that she had used to hit [Leonie] and tapped [Angela]’s fingers that she had placed over her head. I gestured towards her with my finger and said, “Have you got the point?” and the fingers of my hand did poke her stomach, however, with no great force.

… [Angela] became upset following me telling her off.”

102 [Angela] apparently didn’t want to spend time with the husband after this

incident. She told the headmaster she was not sure whether her father had hit her in
the stomach with his fist or his fingers.
103 The wife wrote to the husband on 24 April 2004, saying:

“[Angela] told me you slapped her in the face with a book 3 times AND punched
her in the stomach!!! Shame on you!”

104 The husband replied on 26 April 2004, saying:

“374. …Let me assure you that [Angela] was not slapped in the face, nor punched. She was disciplined and she was upset, however, you have no context into what happened.”

105 The husband’s mother gave evidence that she was in the car at the time of the

incident, but was not able to see what was happening (behind her back), although she
acknowledged that [Angela] complained afterwards of having a sore stomach.
106 I was not persuaded this incident was any more serious than the husband

described. It was a trying situation, faced by many parents, and I accept it was
necessary for the husband to take some action to keep matters from escalating.
107 The husband continued his narrative about this incident as follows:

“375. On the weekend of about 8 May 2004 all the girls told me they had been to the Police Station. Both [Leonie] and [Narelle] were adamant that I did not punch [Angela]. [Angela] also said that was the case. On the Sunday I went to the police station with the girls but the police couldn’t deal with it that day. Later in the week the police called me and I was told this smacked of family law and they were not going to get involved.
376. On 28 May I was at the school when [the mother] took the girls out of school for the day. The girls later told me [the mother] had taken them to the police station to make statements but the police had told them

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they were not following it up. They also told me they spent the rest of the day at home with [the mother] making phone calls during which she kept saying she was not being listened to.”

108 The wife acknowledged she had taken [Angela] to the police about the incident
in the car.
109 Later in the year, the husband learned from the children that they had been
enrolled by the wife in a “Safe 4 Life” course. One of the activities involved the children working out who to contact if they felt unsafe. The husband noted he was not on the list of people to contact for any of the children. He says he was told this was because he was “one of the dangers they may need protection from”.
110 In September 2004, the wife informed the husband she was having difficulty
controlling [Angela], who was said to be hitting and kicking the wife and swearing at her. The wife proposed that the husband have [Angela] for nine days. The husband took [Angela] and said he found her to be “a pleasure to have around the house”. However, on the first contact weekend after she returned to her mother, the husband found [Angela] to be “in a difficult mood”. He said he had to speak with her “on a number of occasions about her disobedience and her attitude in general”. The husband says he “verbally admonished” [Angela] but her behaviour did not improve, so he then gave her “lines for her various infractions”. He said she “incurred 320 lines [which] was double to what she had ever incurred previously in a visit”.
111 The husband described in his affidavit what then happened on 4 October 2004, during this visit. Notwithstanding the length of his narrative, I intend to replicate it in full, given that it led to the termination of the husband’s regular contact with [Angela], and in due course, with [Narelle]. It also provides much insight into the husband’s approach to parenting at the time.

“391. I was being particularly vigilant that weekend to identify misbehaviour. This was more so than usual because of the recent events, that is [the mother] having sent [Angela] to me for a week and a half due to [Angela]’s disobedience, and the physical clashes between [Angela] and [the mother] only two weeks previously.
392. I clearly warned [Angela] not to push boundaries and there would be more serious consequences if she persisted.
393. In the late afternoon of Sunday, 3 October 2004, after returning from a Church picnic we went outside for a walk before dark.
394. I asked [Angela] to bring a ball that had been in her possession so that we could play with it as we walked.
395. When we were outside the house and I was ready to lock up I asked [Angela] where the ball was and she said that she had “placed” it inside the house.
396. I sent [Angela] in to get it.

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397. [Angela] was taking her time and when I went in and asked her where the ball was she informed me she couldn’t find it.
398. I asked why she couldn’t find the ball that she had just “placed”.
399. [Angela] then said that she had not “placed” the ball at all but had thrown it into the lounge-room and now didn’t know where it was.
400. I asked her why she had lied about placing the ball and she said she had not wanted to bring the ball on the walk.
401. I told [her] that she was being rebellious and that she needed to look for the ball with me.
402. I got down on my hands and knees to look around and she continued to stand around and not participate in hunting for the ball despite my instruction to do so.
403. I informed her that she was inconveniencing all of us as a family. I also informed her that if she didn’t help find the ball I would need to give her a couple of smacks because of her defiant attitude and the build up of her behaviour throughout the weekend.
404. [Angela] then informed me that she didn’t want a smack and would not have one. However, [Angela] continued not to assist with looking for the ball.
405. I was concerned that [Angela] still continued to defy me. She had never previously questioned or refused to be disciplined.
406. I asked her why, and she said she did not want to be smacked because it hurt. I pointed out to her that whilst it might produce pain it was not done with the intention to hurt, but to help her focus on correction and select the right course of behaviour in the future.
407. We then proceeded to my bedroom. [Narelle] and [Leonie] were outside the house.
408. I took out a light weight men’s belt which I only use for correction. I folded it in half to reduce the length to 40cm to minimise as much whip like action as possible and allow better control. I held the belt with the buckle and the other end in my hand and then administered a pre-stated number of measured smacks depending on the age of the child. [Angela] had just turned 11 years of age on 25 September 2004. The correction is always done on clothing and the smacks are aimed at the buttocks, aiming in the direction of the upper thigh rather than higher. The child is never restrained but needs to voluntarily lay on the bed to keep themselves there.
409. Both [the mother] and I have used the belt for discipline of the children in the past.

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410. After correction I talk with the child to ensure they understand why correction took place and to reassure them that I love them and encourage them to do better. Occasionally we pray together.
411. On this occasion [Angela] was wearing thick jeans and I informed her that she would receive two smacks and asked her to stand at the foot of the bed and lay down.
412. I conducted the first smack and [Angela] protested.
413. As I conducted the second smack [Angela] lashed out at me with her left foot and kicked me on the bone just under my inside right knee. This left an abrasion that drew blood. [Angela] had never done this before.
414. I paused to consider what had just happened and what action I should take.
415. I informed [Angela] that she could not lash out like that and that it was no wonder she and her mother were coming to blows on occasions. I told her that she must learn to yield to disciplinary correction from her parents and not fight them.
416. I also informed her that her behaviour was completely unacceptable and that she would receive four more smacks as a consequence. A further three deliveries were administered. As she was about to receive the final delivery [Angela] again attempted to lash out and then moved about a metre to the side of the bed and got tangled in the vertical blinds. I moved closer and told her to stop struggling as the blinds could be easily broken.
417. Unfortunately she continued and broke one of the vertical slats. I then informed her this would result in another two smacks.
418. She continued to struggle and to prevent more damage to the vertical blinds. I picked her up using both of my hands on her arms and placed her on the bed. I then completed the remaining three smacks with [Angela] still wriggling.
419. In total [Angela] received eight smacks, which is the most she has ever had from me.
420. At the end of the correction, I spoke with [Angela] and told her she was becoming too big for this type of correction. I had been saying this for almost a year as my objective had been for her to recognise her attitude herself and develop greater self control.
421. I explained to [Angela] that her mother was no probably physically incapable of administering such correction but she needed to respect and yield to her mother’s admonishments.

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422. I said to [Angela] that while I had the strength to administer such correction it was a pointless exercise if she was going to struggle as it only became a test of strength and didn’t work in capturing her heart for future obedience, which was the purpose of such correction.
423. After we talked [Angela] pointed out to me that her left upper arm was sore. I examined this and noticed she had a friction burn there which I thought had occurred while I was extricating her from the vertical blinds. I immediately apologised and said that was an unintended consequence.
424. I also noted that one of the smacks had left a mark on an uncovered area of skin at the top of [Angela]’s left hip and I again apologised for that. I considered that it had most likely occurred on the second smack when she lashed out and kicked me affecting my aim.
425. We then went outside where the other two girls were waiting and went for our walk. [Angela] walked behind and continued to display a surly attitude.
426. Upon our return after baths and showers [Angela]’s attitude had improved markedly and we enjoyed a pleasant evening together.
427. Prior to that disciplinary incident I had been reaching a conclusion that [Angela] was getting too old for that type of punishment. Following that incident I decided that was definitely the case.
428. On Wednesday, 6 October 2004, I was involved in my weekly men’s accountability meeting. At that meeting I discussed what had occurred and that I considered it was inappropriate to continue with physical correction for [Angela], and that I was no longer sure it was appropriate for the younger girls.”

112 Both [Narelle] and [Leonie] were in the home when the husband was assaulting
[Angela]. ([Leonie] told [Mr L] she thought her father had hit [Angela] 16 times.) [Angela] told [Mr L] that she had very unpleasant memories and occasional bad dreams about events prior to the separation; however, she said these were superseded by the assault in October 2004. [Mr L] reported that “she now has bad dreams about that and in some dreams sees her father punishing her with escalating punishments which get worse and worse until she is 15.”
113 Photographs of the injuries suffered by [Angela] on 4 October 2004 were
produced in evidence. It is beyond belief that after inflicting such injuries the husband was still, on 6 October 2004, mulling over at his “men’s accountability meeting” whether he might continue beating his younger children.
114 On 8 October 2004, the husband received a letter from the wife, advising that
she had reported the assault to the police and was suspending contact. Shortly thereafter the wife proposed short periods of supervised contact until the husband had attended an anger management course, undertaken a parenting course and engaged in

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any recommended counselling (upon completion of which he would have supervised
contact from 9 am to 5 pm each Sunday).
115 The husband did not consider these interventions were necessary as he had
already attended an anger management course, been to Mums and Dads Forever and had himself delivered parenting courses to his fellow churchgoers. He instead enlisted the assistance of the police with a view to having the children delivered to him strictly in accordance with the existing contact order. When this did not achieve the desired objective, the husband went to the wife’s church on Sunday 17 October 2004 in the hope of having contact with the children. Once again he enlisted the support of the police, notwithstanding (or perhaps because) he was fully aware that this would lead to a “scene” in the presence of the full congregation. He explained his actions by saying he was “concerned” he might “encounter difficulty” with the wife. He did not say what effect he thought the scene would have on his children.
116 In late October 2004, the husband was charged with assaulting [Angela]. The

existing contact orders were suspended on the same day and orders were made for
supervised contact. The wife also obtained an ex parte restraining order.
117 In February 2005, the husband was found guilty of assaulting [Angela] and
a “spent conviction” was recorded. The husband had elected to plead “not guilty” to the assault, notwithstanding he was aware his plea would necessitate [Angela] giving evidence against him. In his affidavit, the husband comforted himself about his decision by noting that [Angela] was a “protected witness” and that he instructed his lawyer not to cross-examine her “in a vigorous manner”.
118 On 14 July 2005, there was a rare break in hostilities between the parties and
they had a lengthy conversation. Agreement was reached that the husband would talk to [Angela] “and try to bridge the gap that had opened between us”. Without any consultation with [Angela], the parties drove to the salon where [Angela] was having her hair done. The wife went inside and brought [Angela] out to meet the husband. He said he had “some small talk with [Angela] and then told her that I was very sorry and asked for her forgiveness for my part in the disciplinary incident in October 2004”.
119 The husband continued the narrative as follows:

“500. [Angela] said she didn’t understand, and asked why it had had to happen. I said that some correction had been needed because of her behaviour that day, but the outcome was not what I had wanted. I again repeated I was sorry.
501. [Angela] became emotional and [the mother] intervened saying words to the effect of, “I think that is quite enough”.”

120 After his interview with [Angela] in December 2004, [Mr L] reported that [Angela] found her father’s discipline:
“to be violent and quite scary. On many occasions he will lift them up by the neck. He has used the belt on a number of occasions on all three of them… She

239 Although I would be prepared to hear further submissions on this point, my
present inclination is to consider that all three girls should go on these outings together. I am aware that at times there have been suggestions it might be better if they go alone but it is my view that the children are likely to feel more comfortable and have a better time if it is treated as a “family” outing. Any one-on-one meetings are likely to be more stilted and more likely to lead to discussion of the “heavy duty issues”. I consider [Narelle], in particular, might find a one-on-one outing with the husband to be very confronting. Naturally, if either of the girls wishes to have a separate outing in addition to the monthly visits, I would expect both parents to facilitate that occurring.

Apology by husband

240 I accept [Ms A]’s opinion that it is not appropriate at present for the husband to
explore with [Angela] and [Narelle] the “heavy duty issues” arising from past hurts and conflict. Her view is that initially they should concentrate on “good quality contact” and rebuilding their relationship. She felt it was important for the girls to spend time with their father that is “neutral and playful and fun”.
241 I am aware that the wife has a strongly held view to the contrary. She said it is
a necessary precondition for the husband to “just be humble and say to [Angela] I completely messed up – I was wrong – everything I did in that [incident in 2004] and afterwards was wrong”.
242 Although I am not unsympathetic to the wife’s opinion that what is first required
is an unconditional apology by the husband for his past behaviour, such an apology cannot be provided in a vacuum. If the issue was raised it is likely to lead to a dialogue that could get out of hand. It will be better, as [Ms A] recommends, for there to be a series of visits on neutral territory where the husband and his older children can just enjoy each other’s company.
243 I note in any event that [Angela] was quite adamant in telling [Ms A] that she
did not want to talk “about issues” when she had her 2007 meeting with her father. In time to come, when some form of relationship has been restored, it may be appropriate – if the girls want it – to create a structured environment in which the “apology” issue can be worked through. In my view, the involvement of a trained therapist, with an understanding of the background, would be most beneficial. [Ms A] would seem to be the most suitable person for such a task.
244 What is vitally important in the meantime is for the husband never to seek to
justify or minimise his behaviour to the girls. I accept the submissions made by the wife that whenever the issue of the husband’s assault on [Angela] has been raised, the husband makes an apology of sorts, which is then immediately followed by a “but…” I note that even in his discussion with [Mr L], the husband was trying to justify his behaviour. [Mr L] recorded the husband as saying he was surprised that [Angela] told

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him she did not want to be hit “because he felt that when the children were due for
punishment of this kind they should accept it and learn from it”.
245 The husband’s former girlfriend, who gave evidence by telephone and sounded
a reliable witness, said that when the assault came up during the family dinner in March 2007, the husband said to [Angela] “let’s not try to get too specific” and “let’s assume your version is correct”. In my view, that is an unfortunate approach for the husband to adopt. He assaulted his daughter badly. If he now thinks her recollection of this traumatic event is wrong in some detail or that there was some modicum of a reason to justify his assault, then he should keep those comforting thoughts to himself. [Angela] has her view of what occurred and she is unlikely to change it. If she raises the topic again, the husband will obviously not be able to avoid responding. In my view, he should apologise unreservedly; express his understanding about how badly he has hurt [Angela] both physically and emotionally; and then move on to less confronting issues as soon as [Angela] wants to let it go.

Time to be spent by [Leonie] with the husband

246 I turn now to the dispute concerning the sharing of [Leonie]’s time between her
parents. The husband considers there should be a week and week about arrangement, whereas the wife proposes the continuation of the alternate week, Thursday evening to Monday morning, regime that has now been in place for some time.
247 In her closing submissions the wife said that “[Leonie] needs to have a stable
home base and not be constantly going back and forth, week to week”. She also referred to the husband’s travel commitments to the Eastern States and “his long work hours [which] would be obstructive to his availability to [Leonie]”. The wife also asserted that:
“for the Court to order more “physical contact” between the husband and [Angela] will not address the core issues but may in fact lead to more conflict and potentially more litigation. Remember the formula: more contact equals more conflict”.

248 This part of the dispute needs to be considered in the context of the agreement
reached between the parents at the conclusion of the evidence that [Leonie]’s time with her father should be extended slightly, so that rather than returning to her mother’s care on Monday each alternate week, she would return on the Tuesday morning. It is important to appreciate, however, that I am not bound by the proposals of either party and I am certainly not bound by the terms of a tentative agreement. One would hope that such agreements are reached taking into account the best interests of the children; however, it is also undoubtedly the case that agreements are struck with a view to avoiding further litigation and in the hope that agreement itself might lead to better relationships. Regrettably, the tentative agreement the parents reached here was never able to be properly documented.
249 Although I accept that [Leonie] has told her father and paternal grandmother that
she would like a shared care arrangement, she told [Mr L] that she was happy living with her mother and her sisters. She also told [Mr L] that she feels a bit lonely at her

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father’s home because she misses her sisters. It was also interesting to note her report about her father “sleeping in” for some hours after she had got out of bed on the weekends she spent with him.
250 The wife claimed that she would not be disappointed if [Leonie] wanted to have
a week about arrangement because the husband was [Leonie]’s father and “he is part of who she is and I know she enjoys spending time with him”. She clearly, however, did not think that such an arrangement would be in [Leonie]’s best interests and said it would be “problematic”, since she did not think she and the husband would be able to make such an arrangement work.
251 Counsel for the husband submitted that the parties effectively had a shared care arrangement for all three children up until the time of the assault on [Angela] in 2004, despite the fact that they had poor communication skills. She referred to Institute of Family Studies research on post-separation parenting arrangements as providing support for the proposition that the parties could once again successfully undertake a shared care arrangement. She noted that characteristics present in this case, such as geographical proximity, a level of financial security of both parties and flexible work arrangements were all positive indicators for a shared care arrangement.
252 Counsel for the husband noted that whilst most of the families surveyed by the
Institute of Family Studies had “reasonably good relationships”, there were two families in the survey who did not have such a relationship and “co-parented at arms length”. It was argued that “this illustrates that good communication between the parties, while obviously desirable, is not a necessary ingredient of a successful shared parenting regime”.
253 Counsel for the husband went on to submit that given the history of the parties
since separation, “it is reasonable to expect that once the litigation has concluded, and a clear set of orders are in place, the parties will again be able to settle into a routine of ‘co-parenting at arms length’ for the benefit of the children”.
254 I accept the reasons given by [Mr L] for rejecting a shared care arrangement. In his 2006 report [Mr L] said:
“I do not recommend a shared residential arrangement for [Leonie]. In circumstances such as this having shared arrangements (one week with one parent and the other week with the other) leads to seriously (sic) complexities particularly when there is such a lack of goodwill between the parents. The second reason why I would not recommend this approach is that the three children are close to each other and tend to miss each other when they aren’t together. I therefore believe that separating one out for a different arrangement than the others may well create some tensions, some alienations, and some sense of unfairness from one side or the other.”

255 This opinion needs to be considered in the light of the comments made by [Mr
L] after first interviewing the family in December 2004. In the report he then prepared, [Mr L] expressed the following views, which I also accept:

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“Both from the interviews and all the documentation that is available there has clearly been a seriously vituperative relationship between the parents and, despite various attempts, there has been no way to reconcile them to the point of effective and rational communication. Their approach to managing the children and making decisions about them do not appear at all compatible and there is very little evidence of their capacity to work cooperatively in the interests of their children.”

256 [Mr L] also said in his oral evidence that “when there is no communication and
two enemy camps, my experience is that children suffer…” He went on to say that he sees children with disturbances in adolescence and that “what it comes down to is split management – so enmity is quite important”. He said this problem cannot be managed by just arranging for the parents not to meet at handover as had been suggested to him. He acknowledged that enmity between the parents was also damaging when the children were not living in an equal shared care arrangement, but that what should be attempted in such circumstances was to ensure “stability in residence as far as possible with one parent”.
257 Whilst it is unnecessary for me to say whether I subscribe to the view expressed
by [Mr L] as one of general application, I am satisfied in this case that it is best for [Leonie] to spend the majority of her time with her mother and her sisters. The Thursday night to Monday morning arrangement has been in place for a long time now. Although I have given careful consideration to extending the time by one night, as the parties themselves agreed at the end of the trial, I am not satisfied this would be a better arrangement for [Leonie]. The current arrangement gives her four nights every fortnight with her father. This has been more than sufficient to ensure that she has an excellent relationship with him and his mother, whilst allowing [Leonie] to continue to be an ongoing part of the family comprising her mother and sisters. I would only be prepared to consider extending the time if [Leonie] very clearly wanted it and if I was satisfied that the husband has given up his authoritarian style of parenting.
258 [Mr L] did say originally that he would not support [Leonie] spending half of her
holiday time with her father and that it would be appropriate for her to spend the majority of her holidays with her sisters. Whilst I understand the basis upon which [Mr L] made his recommendation, I am satisfied that [Leonie] should now spend half of her holidays with her father, even if her sisters do not want to spend time with him during holidays. [Leonie] is now somewhat older than she was when [Mr L] made his recommendation. Furthermore, the wife herself now proposes that [Leonie] spend half her holidays with her father. I am satisfied that this would be in her best interests.

[Ms A]’s ongoing role

259 I consider there is a very important but limited role for [Ms A] to play in
assisting in restoring the relationship between the husband and older girls. She is a highly experienced and well regarded therapist. I take judicial notice of the fact that she has provided invaluable assistance to families involved in some of the most complex cases that have come before the Court over many years. Whilst it is true that in this matter she was originally engaged to provide assistance to the husband, I am

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quite satisfied that her primary objective would be to promote the best interests of the
children.
260 I would see [Ms A]’s role as primarily being that of an experienced and
objective person to whom the girls could speak to provide occasional “feedback” on their visits with their father. [Ms A] said this would assist her in helping the husband to improve further his parenting techniques. In this regard, I note that the husband has undertaken to meet [Ms A]’s fees.
261 At the conclusion of the trial, the wife was prepared to allow [Ms A] some role
in seeking to repair the relationship between the husband and the older girls. This was evidenced in the terms of the agreement which was announced in open court. Unfortunately, it is apparent from reading the wife’s closing submissions that she has now lost faith in [Ms A]. The manner in which the wife expressed herself does not lead me to have any confidence that her lack of faith is justified, albeit this is a matter upon which I will need to hear further evidence about how events have unfolded since May 2007. However, when considering the wife’s stated concerns about [Ms A], I will be keeping in mind a number of surprising statements made by the wife in her closing submissions.
262 The first of these was her response to the husband’s submission that “[Ms A]
found [Narelle] quieter, and not demanding attention in the same way as [Angela] does”. The wife said in reply that “the description [Ms A] gives of [Narelle] is simplistic and based on her own observations not a detailed conversation with [Narelle]”. I found this submission surprising, as I specifically observed at trial that the wife was nodding her head in obvious agreement at the stage of [Ms A]’s evidence where she was describing these differences between [Narelle] and [Angela]. (This was not the only point during the trial when the wife could be seen nodding her head in agreement with [Ms A]’s assessment, which makes the complaints about [Ms A] in the wife’s closing submissions even more surprising.)
263 I was also surprised to read the wife’s response to the observation in the
husband’s submissions to the effect that the meeting between the children and [Ms A] was “extremely positive”. The wife’s response was to say “What is meant by positive?” The wife is an intelligent woman and in my view knew precisely what the husband’s counsel meant. That submission was a fair summation of the meeting between the girls and [Ms A].
264 In her written submissions, counsel for the husband also noted that the session
that [Ms A] facilitated between the husband and the children ran over time because “the girls were playing a game with their father and were reluctant to stop”. The wife responded by saying “my observation of this is quite different”, but she did not go on to say how her observation differed. The submission made on behalf of the husband was in accordance with the evidence.
265 The husband’s counsel also noted that [Ms A] had observed “a lot of affection,
warmth, playfulness and appropriate responses by the husband to both girls” in the session he had with them prior to the trial. The wife responded by saying “this evidence contradicts what [Angela] and [Narelle] told me when they got into the car”. This submission needs to be contrasted with the wife’s own evidence that the girls did

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not speak with her about what had occurred in the meeting, other than that it had been “OK” and had not given her much information about what had transpired. In my view, this submission demonstrates a lack of insight concerning the dynamics at play when [Angela] and [Narelle] feel unable to express positive feelings about their father in the presence of someone who regards him as “a disgusting piece of humanity”.

Trip to [Europe] in 2009

266 The husband seeks permission to take the children on a holiday to [Europe] in the middle of 2009 to visit his relatives.
267 The wife expressed reservations about whether he would return the children to
Australia and said that she would want to first ascertain whether there was an “extradition treaty” with [Europe]. She was also concerned about the older children missing school time. She said that [Narelle] was “not that keen to go” and that [Angela] said that it would all depend on how her communication with her father went over the period leading up to the proposed holiday.
268 There was nothing in the wife’s evidence to suggest that any of the children had
any strong objection to going overseas on a holiday with their father. The children have a [European] heritage and, in my view, it would be beneficial for them to experience travel overseas, particularly to the place from which their father’s family originates. I would have no doubt that the husband would bring the children back and I consider the wife was being melodramatic in worrying about extradition treaties.
269 Although I am satisfied there would potentially be benefit for all of the children
in having an opportunity to travel overseas, I accept that until such time as some further progress has been made in restoring the relationship between [Angela] and [Narelle] and their father, it would be premature to make an order giving the husband unconditional permission to take them overseas. While I would be a little concerned about [Leonie] being the only child permitted to have an overseas holiday, [Angela] and [Narelle] have presumably become used to their sister spending time with their father alone. I am, therefore, inclined to give the husband permission to take [Leonie] overseas, provided that the wife would have liberty to apply to the Court in the event that she has any specific concerns about the timetable proposed by the husband for such travel. I would also propose making any overseas trip conditional on the wife undertaking to give to [Angela] and [Narelle] a (short) letter from the husband in which he informs them that they would be very welcome to accompany him and [Leonie] in the event they wanted to do so – and the husband taking them if they asked to go.

Proceeds of insurance policy

270 The remaining contentious issue is the order sought by the wife for the husband

to deposit into a trust fund for the children an amount of $150,000 which he received
in April 2006.
271 Prior to the separation, the parties took out a trauma insurance policy. The
husband claims that in June 2000 the wife assigned the benefit of the policy to him.

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The wife claims that the husband must have forged her signature, but I was not satisfied this was the case.
272 The wife was diagnosed with cancer in July 2005. The husband immediately
alerted her to the existence of the insurance policy and advised her that whilst he was now the beneficiary, he would be prepared to make a contribution to her medical expenses from the proceeds. The wife was enraged by the husband’s proposal. I accept that she genuinely believed that she had not assigned the benefit of the policy to the husband and, in any event, did not consider that it was appropriate that he benefit from her misfortune. She pointed out to him that her medical expenses were only very modest ($1,000 to $2,000) and that her greatest need was for reimbursement for the loss of income she was incurring. There was an exchange of unpleasant correspondence and ultimately the husband commenced proceedings in the Supreme Court which, in due course, were dismissed for lack of jurisdiction. The husband obtained the entire benefit of the proceeds of the insurance claim and used the funds to reduce the mortgage on his home. The wife then sought (unsuccessfully) to obtain a variation of child support payments on the basis that the husband had received this windfall.

273 The Independent Children’s Lawyer and counsel for the husband submitted that
I lacked jurisdiction to deal with the wife’s application. These submissions were made in the context of the fact that the parties had already had a property settlement and that the wife’s application, in effect, was seeking further orders by way of settlement of property, which is impermissible. I accepted these submissions. In my view, the only way in which the insurance funds could be taken into account were:

• By way of an application under s 79A of the Act to set aside the property settlement order;
• By way of an application under the child support legislation for an increase in child support payments taking into account the windfall;
• In dealing with costs issues that might arise in these proceedings.

274 In making these observations, I do not wish to be seen as suggesting that further applications would necessarily have any merit.
275 The wife also sought an order that the trauma insurance policy be “cancelled”
and that the husband relinquish his entitlement to further proceeds from the policy in the event of the wife’s death. Even if I had jurisdiction to make such an order, I would not be inclined to do so, notwithstanding I can understand why the wife is affronted by the husband profiting from her misfortune.
276 I am not satisfied the husband obtained the policy by inappropriate means. It is
potentially a significant benefit for him, which in the longer term would possibly be a benefit for the children, one of whom at least would be likely to live with the husband in the event of the wife’s death. Fortunately, the wife is now in remission and hopefully the husband will never have the opportunity to claim on the policy.

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Orders

277 I do not propose making any orders until I hear further from the parties after they
have considered these Reasons. Clearly, much will have transpired since the trial and it is inappropriate to make orders until the parties have at least considered if they still want me to receive the updated report from [Ms A].
278 I will however, indicate my intentions in relation to some specific matters that are likely to cause difficulty in reaching agreement about the form of orders.
Christmas contact
279 Given the conflict that exists between the parties, I concur with the wife’s view
that it is best that any contact the husband has with the children on Christmas Day and Boxing Day be only each alternate year, rather than those days being shared between the parties every year. This would, of course, mean that each second year [Leonie] would be unable to spend Christmas with her older sisters unless they elected to spend some time with their father.
Birthday contact
280 Given the unfortunate disputes that have occurred about birthdays in the past,
I am also satisfied it would be best for the girls to spend their birthday with whichever parent they are living with at the time. The absent parent should be permitted a telephone call but otherwise can celebrate the birthday with the child on the visit prior to or after the birthday. I acknowledge this arrangement “favours” the wife, but it is the peace and wellbeing of the children on their birthday which is my primary concern.
Email address
281 The husband has been asking the wife for some time to allow him to
communicate with the children by email, and the wife has steadfastly refused his requests. She considers this would be yet another way in which the husband would break down her attempts to separate her life as much as possible from his.
282 Although I would ordinarily be receptive to a request for email contact, I do not
propose to make the order sought by the husband. The way in which the husband has communicated with the wife since separation and his tendency to want to “teach” the children would make me concerned about the way in which he would use email communication with them. Given the children’s ages, I would anticipate that they now have, or will very shortly have, the capacity and desire to set up their own email accounts. If they want to have email communication with their father, then they can advise him accordingly and give him their email address.

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Sharing of transportation
283 The husband proposed that the parties share the transportation arrangements for
contact. Given that the wife presumably does the bulk of all other transportation arrangements, I do not see why the husband should not undertake all of the transport for contact visits. The exception I would make for this is for, say, the first six of the monthly outings I have proposed earlier. The chances of the girls going with the husband will be improved if the wife takes them to the place where the event is to occur and the husband brings them home. By this means, any resistance expressed by the girls can be sorted out by the wife in the absence of the husband. It will not be sufficient for the wife to simply remain in the home and observe passively as the husband attempts to persuade the girls to come with him.
Removal of Independent Children’s Lawyer
284 Counsel for the husband submitted that the involvement of the Independent
Children’s Lawyer would no longer be necessary in light of what she anticipated would be the involvement of [Ms A]. The wife supported the husband’s application for the discharge of the Independent Children’s Lawyer.
285 The Independent Children's Lawyer called no witnesses at the hearing other than
the Court Expert. His cross-examination of witnesses, including the parties themselves, was brief. In his brief submissions filed on 26 October 2007 the Independent Children's Lawyer acknowledged that he was “unaware of what steps have been taken with respect to the interaction between each of [Angela] and [Narelle] with the [husband]” in the many months following the trial. In these circumstances I accept that the ongoing involvement of the Independent Children's Lawyer might appear unnecessary. I will, however, hear from him on this issue after these Reasons have been delivered.
Costs of the Independent Children's Lawyer
286 The wife has sought an order that the husband pay the costs of the Independent
Children’s Lawyer. The Independent Children’s Lawyer was, at least originally, seeking a similar order.
287 I do not consider it appropriate to deal with costs issues as part of the substantive
dispute. Issues concerning costs are normally dealt with following the delivery of judgment and I do not see any reason to depart from that practice in this case. In due course, I will either hear oral submissions in relation to costs issues or will direct the filing of written submissions.

I certify that the preceding [287] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

[2008] FCWA 120

Associate

•	[Leonie] had been seeing the husband each alternate weekend from Thursday afternoon until Monday morning and for one half of school holidays and she proposed that this should continue;
•	[Angela] had been spending some time with the husband every alternate weekend and during holidays but has decided to “take

•	The husband and the wife to have joint parental responsibility.
•	[Angela] to live with the wife and spend no less than three hours a fortnight with the husband in addition to contact on special occasions.
•	[Ms A] to provide counselling for [Angela] for six months in order to effect a reconciliation between [Angela] and the husband with a view to bringing about a regular regime of contact.
•	[Narelle] to spend time with the husband on a graduated programme increasing to after school on Friday to the commencement of school on Monday each alternate week in addition to contact on special occasions.
•	If [Narelle] wishes, the alternate week contact to be extended to the Friday.
•	[Narelle] to see [Ms A] on the same basis as proposed for [Angela].
•	[Leonie] to live with the husband and the wife on an alternate week and week about basis, with school holiday time to be shared between the parents. Arrangements to be made for [Leonie] to spend time with each parent on special occasions.
•	[Leonie] to complete her primary education at [ a college].
•	[Leonie] to be interviewed by [Ms A] and for [Ms A] to provide counselling if deemed necessary.
•	The husband to meet all professional fees associated with the counselling with [Ms A].
•	The parents to share transportation arrangements.
•	The husband and wife to meet one half of the cost of school fees.

•	Each party to have reasonable contact by telephone, email and post with the children when they are not resident with them.
•	[Ms A] to provide a report to the Court at the conclusion of six months as to the outcome of the counselling and for the living arrangements for [Angela] and [Narelle] to be then reviewed in the light of the report and any other evidence.
•	The husband to be permitted to take the children out of Australia for a holiday to [Europe] in the middle of 2009.

•	The children to reside with the wife.
•	The wife to have sole responsibility for making decisions about the children’s education.
•	The husband and wife to have responsibility for the day-to-day care, welfare and development of the children when they are spending time with either the wife or the husband.
•	[Angela] and [Narelle] to see the husband in accordance with recommendations made by [Ms A], but on the basis the children would spend up to 3 hours each fortnight with the husband.
•	After a period of 6 months, and subject to the views of [Ms A], [Angela] and [Narelle] to spend time with the husband in accordance with their wishes.
•	[Leonie] to spend time with the husband from after school on Thursday to commencement of school the following Tuesday each alternate weekend and for one-half of school holidays.
•	The parties and the Independent Children’s Lawyer to have liberty to relist the proceedings at the expiration of 6 months.
•	The proceedings otherwise be adjourned generally.

“26.	I greeted [Narelle] warmly and asked her to show me her work. She replied, “I’m looking after the baby”. I pointed out that there were plenty of others including the child’s brother and her parents and it was now her chance to show me her work. [Narelle] reluctantly took me to her desk. We opened one of her exercise books and [Narelle] said, “Can’t you just read the book?” I told her that I wanted her to show me what she had done. We were looking at a project on Tanzania and I remarked that we still had a World Vision child that we sponsored living in Kenya. [Narelle] was very inattentive and distracted and I asked her if something was the matter.
27.	[Narelle] said to me, “I don’t live with you.” I told her that may be the case but I cared very much for her and was greatly interested in all she did.
28.	[Narelle] then said, “I don’t like you”. I asked her why that was the case. [Narelle] responded, “You know.” I replied that I didn’t and could she tell me why.
29.	[Narelle] then stated, “Because of the way that you have treated Mum.”
30.	I asked, “How have I treated her?”
31.	[Narelle] responded, “Cruelly”.
32.	I asked, “In what way?” [Narelle] then said, “You write her horrible letters. You have physically hurt her.”

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

“(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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…”

•	they feel afraid of you;
•	they learn nothing about appropriate behaviour;
•	they see you be “mean” to them and “nice” to other people;
•	they see their Dad treating them badly and not modelling how they should be treated;
•	they see their big Dad picking on three little girls – cowardly.

“391.	I was being particularly vigilant that weekend to identify misbehaviour. This was more so than usual because of the recent events, that is [the mother] having sent [Angela] to me for a week and a half due to [Angela]’s disobedience, and the physical clashes between [Angela] and [the mother] only two weeks previously.
392.	I clearly warned [Angela] not to push boundaries and there would be more serious consequences if she persisted.
393.	In the late afternoon of Sunday, 3 October 2004, after returning from a Church picnic we went outside for a walk before dark.
394.	I asked [Angela] to bring a ball that had been in her possession so that we could play with it as we walked.
395.	When we were outside the house and I was ready to lock up I asked [Angela] where the ball was and she said that she had “placed” it inside the house.
396.	I sent [Angela] in to get it.

•	By way of an application under s 79A of the Act to set aside the property settlement order;
•	By way of an application under the child support legislation for an increase in child support payments taking into account the windfall;
•	In dealing with costs issues that might arise in these proceedings.

[2008] FCWA 120

16 OCTOBER 2008