PAIGE & PAINTON

[2015] FCCA 216

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAIGE & PAINTON [2015] FCCA 216

Catchwords:
FAMILY LAW – Parenting – where the father has not spend time with the children for several years – family violence – drug issues – mental health issues – whether father has demonstrated that he has changed – sole parental responsibility, lives with mother, no spends time with ordered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 91B

MRR v GR [2010] HCA 4

Applicant: MR PAIGE

Respondent: MS PAINTON

File Number: WOC 343 of 2013

Judgment of: Judge Altobelli

Hearing dates: 15 – 18 December 2014

Date of Last Submission: 18 December 2014

Delivered at: Wollongong

Delivered on: 27 February 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Longworth

Solicitors for the Respondent: John Dawson & Associates

Counsel for the Independent Children's Lawyer: Ms Sproston

Solicitors for the Independent Children's Lawyer: Helen Volk Lawyers

ORDERS

(1)That all previous parenting Orders be discharged.

PARENTAL RESPONSIBILITY

(2)That the Mother have sole parental responsibility for the children, [X] born [omitted] 2006 and [Y] born [omitted] 2008 (“the children”).

(3)That the Mother inform the Father of all decisions made in respect of the long-term care, welfare and development of the children within seven (7) days of such decision being made by forwarding same by post to the father’s last known residential address.

LIVING ARRANGEMENTS

(4)That the children live with the Mother.

SPENDING TIME ARRANGEMENTS

(5)That the children spend no time with the father.

COMMUNICATION

(6)That the father be at liberty to forward letters and or gifts to the children on two occasions per year, and that the mother be permitted to inspect the letters or gifts forwarded by the father, to the children, and provide same to the children provided that the mother deems such communication is appropriate for the children to receive.

AUTHORITY

(7)That this order operates as the authority of the mother for any school or other place of education attended by the children, to provide information to the father in respect of the children’s academic progress.

COUNSELLING AND PARENTAL EDUCATION

(8)That within fourteen (14) days of the making of these Orders, the Mother shall do all acts and things to apply to the University of New South Wales Child Behaviour Research Clinic or other such facility as is recommended by Dr B or that Clinic for therapeutic parenting assistance, and attend for so long as is recommended, to assist the mother to improve her parental capacity. 

RESTRAINTS

(9)That the Mother be restrained from making critical or derogatory remarks about the father or any member of the father’s household or family in the presence or hearing of the children and immediately remove the children from the presence of any other person who does so.

(10)That the mother be restrained from physically disciplining the children, or permitting any other person to do so.

(11)That the Father be restrained from:

(a)Assaulting, molesting, harassing, threatening, stalking or intimidating or otherwise interfering with the Mother, or any member of the Mother’s household or family;

(b)Attending the mother’s home, or within 500m of the mother’s home;

(c)Attending the children’s school or any other place of education, or coming within 500m of such place;

(d)Contacting the mother or children by any means, other than in accordance with these Orders.

(12)The preceding Order is an order for the personal protection of the Mother and members of the Mother’s household and family pursuant to s.68B of the Family Law Act 1975 (Cth), to which a power of arrest without warrant, attaches, pursuant to s.68C.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 343 of 2013

MR PAIGE

Applicant

And

MS PAINTON

Respondent

REASONS FOR JUDGMENT

Introduction

1.This case is about two children, [X], born [in] 2006 who will be nearly nine years old by the time these reasons for judgment are published, and her brother, [Y], born [in] 2008 who is six years old.  The Court was asked to decide whether, and if so in what circumstances, the children should spend time with their father.  It was a very difficult case to decide. 

2.Both parents presented with significant issues in their lives which, they each claimed, they were addressing in different ways.  Both parents experienced very difficult lives, and their past experiences before, during, and after their relationship cast a giant shadow over these proceedings.

3.In particular for the Father, the Court had to assess whether his claims of transformation are borne out by the evidence, and in any event are sustainable for the future.

Background

4.The Father is the Applicant in this case.  He is 44 years old, describes himself as a pensioner, and lives in [omitted], in the Illawarra region of New South Wales.  The Respondent is the children’s mother.  She is 42 years old, describes herself as undertaking home duties, and also lives in a suburb in the Illawarra region of New South Wales.

5.The Mother has five children from a previous relationship who are aged between 15 and 26.  There was a period when the Father and Mother cohabited with the three younger children in the household, namely [A] who is now 20, [B] who is 17, and [C] who is now 15.

6.The parents commenced cohabitation in 2005, [X] was born in 2006 and [Y] in 2008.  The parents separated in November 2010.  The last time the children spent any time with their father was on 7 January 2013.  A more detailed chronology of relevant events will be set out below.

7.Whilst the Father represented himself at the final hearing, which lasted for four days, he was legally represented up until that date.  The orders he sought are set out in his case outline document filed 12 December 2014.  His orders are reproduced in the first schedule to these reasons. 

8.In short, he proposed equal shared parental responsibility, that the children live with their mother, but spend time with him each weekend from after school on Friday to before school on Monday, in addition to school holidays and special occasions.  During the course of the hearing, however, it became apparent that the Father was prepared to accept virtually any order for him to spend time and communicate with his children, including on various conditions, as well as supervision.

9.The Mother was at all relevant times represented by a solicitor and Counsel.  Mr Longworth appeared for her at the final hearing.  The orders sought by her are contained in her updated case outline filed 12 December 2014.  These orders are also reproduced in the first schedule to these reasons. 

10.In short, she proposed sole parental responsibility, the children live with her, and that there be no contact or communication between the Father and the children.

11.The Children were represented by Ms Volk, the Independent Children’s Lawyer, who instructed Ms Sproston of Counsel to appear at the hearing.  The Independent Children’s Lawyer’s proposed order was not formulated until the afternoon of the final day of the hearing.  The minute of order in this regard is also reproduced in the first schedule to these reasons.

12.In short, the Independent Children’s Lawyer proposed that the Mother have sole parental responsibility, that the children live with her, but spend no time with the Father.  Communication between the Father and the children be limited with letters and gifts twice each year.  A number of other incidental orders were sought.

The evidence

13.The Father relied on the following documents:

·Affidavit of Mr Paige, sworn 22 April 2013;

·Affidavit of Mr Paige, sworn 12 September 2013;

·Affidavit of Mr Paige, sworn 14 May 2014;

·Affidavit of Mr Paige, sworn 11 December 2014; and

·Expert’s Report by Dr B dated 28 April 2014. Dr B was the single joint expert appointed in this case.

14.The Mother relied on the following documents:

·Affidavit of Ms Painton, sworn 3 December 2014;

·Affidavit of Mr A, sworn 4 December 2013; and

·Expert’s Report of Dr B dated 28 April 2014.

15.The Independent Children’s Lawyer’s evidence consisted primarily of the Report of Dr B, who is a consultant child and adolescent psychiatrist.

16.In addition, a large volume of documents that had been produced on subpoena were tendered in both the Mother’s and the Independent Children’s Lawyer’s case, and the Father tendered a considerable volume of photographs.  Most of the documents produced on subpoena were business records.  There were no objections about the admissibility of the documents but, in any event, all of the documents that were tendered in evidence were assessed by the Court in relation to the weight that ought to be given to this evidence, irrespective of whether this issue was raised by a party.

17.The documents tendered in evidence are as follows:

·Exhibit R1 – bundle of photos;

·Exhibit R2 – school reports;

·Exhibit R3 – Departments of Family & Community Services records (as tabbed), volume 8;cho

·Exhibit R4 – Departments of Family & Community Services records (as tabbed), volume 6;

·Exhibit R5 - Departments of Family & Community Services records (as tabbed), volume 4;

·Exhibit R6 - Departments of Family & Community Services records (as tabbed), volume 3;

·Exhibit R7 – [B] Medical Centre records (as tabbed);

·Exhibit R8 – Dr D documents produced by subpoena (as tabbed);

·Exhibit R9 – NSW Police records (as tabbed);

·Exhibit R10 - NSW Police records regarding convictions (as tabbed);

·Exhibit ICL1 – Dr B's Report;

·Exhibit ICL2 – letter to Mr Paige from Catholic Care;

·Exhibit ICL3 – Letter from Helen Volk Lawyers dated 6 September 2013;

·Exhibit ICL4 – letter from Helen Volk Lawyers dated 3 November 2014;

·Exhibits ICL5 & ICL6 – NSW Police records produced by subpoena (as tabbed);

·Exhibits  ICL 7 & ICL8 – Department of Family & Community Services records  produced by subpoena, volume 5;

·Exhibit ICL9 – Department of Family & Community Services records (as tabbed), volume 7;

·Exhibits ICL1, ICL11, ICL12 and ICL14 - Department of Family & Community Services records (as tabbed), volume 2;

·Exhibits ICL15 – Department of Family & Community Services records safety assessment (as tabbed), volume 1;

·Exhibits ICL16 – Department of Family & Community Services records safety plan(as tabbed), volume 1;

·Exhibit ICL17 – [B] public school records – absences document; and

·Exhibit ICL18 – Minute of Order by Independent Children’s Lawyer.

18.The Father, the Mother, and the Mother’s partner, Mr A, were each extensively cross-examined.

19.As was mentioned earlier in these reasons, the Father represented himself at the hearing.  Despite this, the Court gave him every opportunity to say what he wanted to say, provided there was no unfairness caused to other parties.  The Court formed the impression that the Father was very passionate about the matters before the Court, had good communication skills and a level of intelligence that seemed to enable him to understand what was happening in the hearing, as well as actively participate in it.

More detailed chronology

20.Despite the complexity of this case, there were surprisingly few factual issues in respect of which a determination needed to be made.  For the most part, therefore, the chronology is relatively uncontentious.  By the time the parents met in 2005, and commenced a relationship later that year, it is clear that their lives up until that point had been difficult ones.

21.For the Mother, there was a succession of failed relationships.  She had her first child at 16, another at 17 and three others before she had turned 27.  Both parents had problematic childhoods.  The Father had a quite extensive criminal record before meeting the Mother. 

22.She says, and he does not dispute, that he disclosed that he was suffering from mental health issues at the time they met.  The Mother says he disclosed that he was suffering from bipolar and schizophrenia, but the Father disputes these diagnoses. 

23.In 2006 the Father had been jailed for two months for assaulting his brother.  On either account of the relationship from 2006, the relationship was a difficult one, marked by conflict and violence in diverse forms.

24.In 2009 [X] suffered a burn to her arm from a cigarette smoked by the Father.  Also that year the Mother’s daughter from the previous relationship, [A], suffered an injury as a result of the Father throwing a bucket of water at her following an incident.  The Father characterises these incidents as accidental. 

25.In any event, [A] was placed in a refuge by the Department of Community Services.  And then, shortly thereafter, the Mother’s other children living with her at the time, that is, [B] and [C] from a previous relationship, and [X] and [Y] from the present relationship, were placed in foster care by the Department.  There were subsequent care proceedings in the [omitted] Children’s Court and orders were made for the children to return to her care, with orders protecting the Mother and children from the Father. 

26.It is clear from the evidence before the Court, and not disputed by the parties, that the Department was concerned about the children in the care of the Mother and the Father, principally because of the Father’s family violence, but there were also more generalised concerns about the Mother’s parenting capacity.

27.In July 2010 both parents signed an undertaking to the Children’s Court which resulted in the finalisation of those proceedings on the basis that the children would return to the Mother’s care, subject to the undertakings given by them, and subject to the children being placed under the supervision of the Department.  It should be noted that, during this time, the Mother and the Father continued to cohabit and, indeed, did not separate until November 2010.

28.On separation the Father left the matrimonial home and moved to an adjoining suburb.  A fact that the Father considers significant is that, shortly before separation in September 2010, he suffered psychological injury as a result of assisting, in the course of his work duties, at a fatal motor vehicle accident on [omitted] Road.

29.In the period between the date of separation and 7 January 2013 (the date the children last had any time with their father) the Father spent time with the children, including overnights at his home.  This period continued, however, to be one of high conflict between the parents including incidents of assault that resulted in Apprehended Violence Orders against the Father in April 2011.

30.In May 2011 [X] was once again burnt whilst in her Father’s care as a result of a cigarette.  The Father asserted this was another accident, the Mother was much more concerned about this incident. 

31.Despite the violence and the conflict, the Father’s time with the children continued.  Indeed, as a result of a Legal Aid mediation held in October 2012 consent orders were entered into in the Local Court at Wollongong in which the children are to live with the Mother and spend time with their father each alternate weekend.

32.The Father’s contact with the children ended in January 2013 as a result of a further Apprehended Violence Order (hereafter referred to as ‘AVO’) made against the Father protecting the Mother, her partner, and the children, following an incident that occurred in January 2013. 

33.The Mother had re-partnered with Mr A sometime during this period; she says December 2012.  The Father agrees that he became aware of it in December 2012 but suspects it commenced much earlier.  In any event, on any objective view of subsequent events, the Mother’s re-partnering seems to have triggered further angry outbursts from the Father.

34.The chronology recited above probably does not capture the nature and intensity of the difficulties experienced by the parents in this period, nor does it capture the experiences of the children.  On any account, the children were exposed to significant family violence that was perpetrated by the Father against the Mother and her partner.  Whilst the Father continued to spend time with the children, it was not necessarily unproblematic.

35.Quite apart from [X]’s further burn, there is evidence to suggest that [X] in particular became increasingly reluctant to spend time with her father, and the Father was not necessarily consistent in adhering to the arrangements in place. 

36.In any event, by January 2013 the Mother refused to allow the Father to spend any time with the children.  He commenced proceedings in April 2013, including contravention proceedings and the mother responded in the following months. 

37.The first significant interim order was made by this Court on 30 July 2013 when the previous orders were suspended, the Mother was to have sole parental responsibility, the children live with her, and the Father spend time with the children at a supervised contact centre.

38.On 3 September 2013 Judge Kemp ordered that the children have no time or communication with their father.

39.On 13 November 2013 there was a further Interim Hearing before me, which involved the tendering of substantial documents that had been produced on subpoena.  In my judgment of 26 November 2013, subsequently published as Paige & Painton [2013] FCCA 2029, as well as confirming the previous arrangements for sole parental responsibility, lives with Mother, and no contact and communication, I made an order under s.91B requesting the Director‑General of the Department of Family and Community Services to intervene. The Department subsequently declined to intervene. Hearing dates were subsequently ordered, vacated, and then regrettably the matter was not reached. An Expert’s Report was ordered with Dr B being appointed and the matter set down for Final Hearing for 15 December 2014, allocating four days.

Outline of these reasons for judgment

40.After stating the applicable law the Court will deal with the evidence of Dr B first, and then subsequently deal with the remaining evidence by reference to the considerations contained in s.60CC of the Family Law Act 1975 (hereafter referred to as ‘the Act’). 

41.The purpose in dealing with Dr B’s evidence first is merely to recognise that his evidence is both expert, and independent.  The remaining evidence before the Court was, for the most part, and except to the extent that it was not contentious, partisan evidence. 

42.Whilst Dr B’s evidence is thus dealt with before the evidence of the parties and their witnesses, no inference should be drawn that his evidence is somehow determinative of its own right.  It is both convenient and logical to deal with the expert evidence first.

The applicable law

43.In determining parenting matters under Part VII of the Act, the Court must regard the best interests of the child as the paramount consideration: s.60CA.

44.The objects and principles of Part VII are set out at s.60B:

60B  Objects of Part and principles underlying it

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

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

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

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

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

(2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)     parents should agree about the future parenting of their children; and

(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

(3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a)     to maintain a connection with that culture; and

(b)     to have the support, opportunity and encouragement necessary:

(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii)     to develop a positive appreciation of that culture.

45.At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

61DA  Presumption of equal shared parental responsibility when making parenting orders

(1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

(2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)     family violence.

(3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

46.If the presumption applies, the Court is required to consider certain things:

65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Substantial and significant time

(2)     If:

(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3) will be taken to spend substantial and significant time with a parent only if:

(a)     the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii)     days that do not fall on weekends or holidays; and

(b)     the time the child spends with the parent allows the parent to be involved in:

(i) the child’s daily routine; and

(ii)     occasions and events that are of particular significance to the child; and

(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a)     how far apart the parents live from each other; and

(b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)     the impact that an arrangement of that kind would have on the child; and

(e)     such other matters as the court considers relevant.

47.Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

Determining child's best interests

(1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2)  The primary considerations are:

(a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3)  Additional considerations are:

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents; and

(ii)  other persons (including any grandparent or other relative of the child);

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii)  to communicate with the child;

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f)  the capacity of:

(i)  each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)  any family violence involving the child or a member of the child's family;

(k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)  any other fact or circumstance that the court thinks is relevant.

48.In MRR v GR [2010] HCA 4, the High Court said

8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

"(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

Sub-section (3) explains what is meant by the phrase "substantial and significant time".

9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

49.A little later in the judgment the High Court said:

Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

Dr B’s evidence

50.Dr B's Report is dated 28 April 2014, was received on 8 May 2014, and then released to the parties shortly thereafter.  He interviewed the Father, the Mother, and the children.  He had available to him a significant volume of background documents including the parties’ evidence that had been filed as at the date of his interview on 31 March 2014, and the documents that had been produced on subpoena up until then.

51.In terms of Dr B’s review of the documentary evidence, all that needs to be said is that there was no challenge during the hearing to the accuracy of his representation of the contents of those documents.  Indeed, having independently reviewed all of the documents that Dr B reviewed, his recitation and summaries appear faultless.  This becomes particularly significant in terms of his review of the Father’s medical records, as well as the New South Wales Police records relating to the Father.

52.Dr B interviewed the Father.  The Father makes a number of significant concessions in relation to past drug issues and his criminal history.  In particular, at page 26 Dr B records as follows:

I asked him about the violence history and being controlling.  He said, “Yes, but so was she.  It was about the kids.  I did lose me cool, a lot of the time.  She would have the place so dirty, she would be sitting watching TV, there were no towels, the toilets were dirty, kids were outside, I got sick of it.”

53.Also at page 26 Dr B made the following observations of the Father during the interview:-

Observations during the interview

As is clear from the history above, it was difficult at times to keep Mr Paige on track and he digressed frequently. He was clearly endeavouring to create the best impression possible and to justify his own behaviour in the past. He admitted, though not necessarily with a great deal of insight or sincerity, to past offences including violence within the relationship. He did not show evidence during the interview consistent with any psychotic illness. His history of PTSD did not appear to be entirely consistent and this has been noted in previous assessments following the workers compensation application. On a number of occasions during the interview Mr Paige was at pains to indicate that it was he who was initiating the application to reinstate the relationship with his children and that this had been a fairly costly undertaking for him. It was my impression that he was trying to convince me of the sincerity of his wish to continue to be involved as a father in the children’s lives. His manner and way of presenting himself however suggested a lack of insight and true understanding of the issues before the Court. It seemed more important that his role as the father and his rights as the father were paramount and he had difficulty at times moving from a fairly egocentric position to understanding the implications for the children and their true needs. His own early deprivation and disrupted attachment history however would be a contributing factor, as he had experienced in consistent parenting himself. From his own history he described a fairly troubled disrupted life with significant problems associated with past misuse of drugs and alcohol and an extensive forensic history, which has been documented.

He had trouble taking responsibility for his behaviour and what had happened in the marital relationship. His current preoccupation is that the children’s mother is now in a new relationship and he was excluded from being able to be involved with the children’s lives.

There was no evidence during the interview of any current major mental illness. The difficulties that he displayed in giving a coherent narrative appeared primarily related to his troubled and episodic antisocial history followed by a chaotic relationship with the children’s mother. Although at times somewhat insightful, he demonstrated a need to justify his behaviour and make attributions about others being responsible for his aggressive behaviour.

54.The Court had the benefit of personally observing the father over four days both in the witness box as a witness, but also, to a lesser extent, as a party advocating for himself.  Consistent with Dr B’s observation, the Court also found that it was difficult at times to keep the Father on track, that he digressed frequently, that he sought to present himself in the best possible light, and whilst admitting to many matters that occurred in the past, he did not necessarily convey any sense of insight or understanding about the impact of these actions on others around him.

55.Dr B also interviewed the Mother.  His observations of her during the interview are set out at page 35 of his report.  In this regard he states:

Ms Painton throughout the interview was fairly coherent and I thought gave as good a narrative account as she could considering the number of adverse events.  She had a restricted range of affect, though she did not appear to be depressed.  Her presentation was consistent with someone who had experienced significant trauma, violence and neglect throughout her life. 

Her account of the relationship with Mr Paige would suggest that this has been a very controlling one and she had accommodated to the verbal abuse out of fear but also as a consequence of previous traumatic relationships.  When she spoke about the future, although she said she was hopeful, her emotional tone did not last.  No doubt this is a consequence of having had so many disappointments in the past.

56.Dr B’s observations of the Mother are consistent with this Court’s own observations of the Mother over four days.  The Mother’s restricted range of affect was plainly apparent during the hearing.

57.Dr B brought the children into contact with their father and his detailed observations are contained at pages 38-42 of the report.  It is important to note that the children had not seen their father for quite some time.  Clearly, Dr B felt that it was appropriate, in the circumstances, to bring them together.  For present purposes, only the last three paragraphs of his observations, at page 42 of the report, will be reproduced:

[X] also cuddled her father, though reserved despite having been warmly engaged during the session. [Y] was more reserved in his goodbye but was keen for his father to have the coloured in drawing.

Following their father leaving the session, before I took the children back to their mother [X] turned to me and said; “Now he’s starting to be nice”. She was positive when she said this but seemed surprised about the experience. She also told me that she had forgotten his face because she had not seen him for so long. This may relate back to her spontaneous comment during the session when she said it had been a long year.

The session throughout was very active, with the father being very involved and very animated, with the children responding to his efforts to engage them. [X] seemed more comfortable and more willing to go along with her father to begin with. [Y] took some time to come to terms with his presence but gradually became more involved, particularly after he had seen the photographs of himself when he was younger. Towards the end of the session it was clear that he wanted to please his father and do what was expected, which was to colour in. [X] had been fairly compliant throughout. Their father definitely took the lead in the session from early on, rather than waiting for them to warm up to him. This did not appear to derail the session for [X], nor for [Y], I suspect because he had his sister present, [Y] was willing to become engaged and follow the lead. As the session progressed there was more collaboration and cooperation between the three of them. This was most evident when they were working to solve the puzzle and playing with the magnetic construction kit. [Y]’s verbal output was fairly limited at the beginning but he was speaking more towards the end, though he was fairly restricted in his conversational skills.

58.Dr B of course observed the children with their mother, and his observations in this regard are recorded at pages 42-46 of his Report.  During this observation the Mother’s partner, Mr A, was introduced.  The complexities of this case, the vulnerabilities of the Mother, and the concerns about her parenting capacity all become palpable during this observation.

59.The child [Y] was somewhat resistant and reluctant.  The Mother was uncomfortable.  [X] was very active, and the Mother seemed to struggle to engage with her or control her.  The nature of the Mother’s engagement in activities with the children was limited.  Indeed, one interpretation of Dr B’s record of the observation is that the children’s interaction with the Mother’s partner was, in fact, significantly better than their interaction with their mother.

60.The final paragraph at page 46 captures some of the issues:

Throughout this session [X] had the most energy and the most capacity to organise.  She had made quite an effort to engage her mother on many occasions.  Her mother’s attention was divided and she focused her efforts on trying to redirect [Y]’s attention.  [Y]’s play with the dollhouse was his dominant interest, however, his mother had difficulty giving attention to [X], becoming more frustrated getting [Y] on track so let [X] get on with doing what she wanted. 

She was also less emotionally engaged when she had asked them to read, with [X] reading but without much feedback from her mother.  When Mr A came in he also seemed to want to be in control but he focused his attention primarily on [X].  The children had difficulty working collaboratively together with their mother and then with their mother and Mr A.

61.Dr B’s conclusions and recommendations commences at page 46 of his Report.  He found [X] to be a delightful, cooperative and energetic child, indeed a resilient one.  She appears to be progressing well at school.  Dr B’s only concern in relation to [X] seemed to be:

That because of her resilience and also what appears to be a need to please, that she could become parentified and take on too much responsibility to compensate for any deficits that are present in either parent.  She stated during her assessment that she tries to help out her mother when her mother is tired.  She indicated sometimes her efforts are not appreciated.

62.Dr B clearly had greater concerns about [Y], who he found to have significant expressive language problems, and seemed to struggle with social skills and coping capacity.  He thought his play skills were more consistent for a child of about 12-18 months, rather than a five year old.

63.In terms of the children’s views Dr B thought that neither was mature enough to express an opinion that would be given any significant weight.  However, [X] did indicate a wish that the Father be involved in her life including, for example, at gymnastics.

64.In terms of the relationships between the children and their parents, particularly as regards a meaningful relationship, Dr B thought that [X] had a prior remembered relationship with her father.  She showed no anxiety about interacting with him, nor did she reject his interest in her.  She demonstrated curiosity about him.  Whilst initially slow to warm up to her father, over time she readily engaged with him. 

65.Dr B thought that she had an attachment to him even though it had become attenuated as a consequence of not seeing him.  However, [X] appears to remember incidents of family violence to which she was exposed.

66.At page 48 Dr B records:

It is difficult to judge the quality of the attachment of [X] to her father.  It did not appear to be an anxious, ambivalent one or avoidant, nor could it be clearly established that she has a secure relationship with him.  It did appear however that she still has affection for him and was able to converse freely with him and accepted his role during the session in play.  She was also good during the session in facilitating her brother [Y]’s involvement with her father.

67.In relation to [Y]’s relationship with his father, Dr B felt this was much more difficult to evaluate.  At first he was cautious, and seemed unfamiliar with his father.  However, following his sister’s lead he gradually became more relaxed and increasingly interested and involved.  Whilst [Y] seemed to have difficulty expressing himself verbally, he did not show fear or anxiety in his father’s presence, but more a cautious curiosity.

68.Dr B acknowledged that the Father’s engagement with the children was, overall, a good one.  He did not rule out the possibility, however, that it was merely a “good performance” as part of the Father’s desire to create a very positive impression in Dr B’s eyes.  However, Dr B could not rule out the possibility that indeed it was a genuine display of interest and concern by the Father.  At pages 48-49 Dr B observes in relation to the Father:

It seemed that despite his personality difficulties and deficits and his childhood deprivation, that he does have some understanding and capacity to engage both children.  The children responded to his behaviours and his active involvement in their play.  To what extent this is an enduring characteristic of the relationship is difficult to judge.  I was understandably somewhat cautious in accepting at face value his overt display in view of his past history and capacity to convince others about his intentions and motivations.

69.Equally problematic, albeit in a different way, are Dr B’s comments in relation to the Mother’s interaction with the children.  He observed that the children’s interaction with the Mother was quite different to their father.  She appeared more anxious and less able to or skilled in interacting in a playful way with the children. 

70.Compared to the Father she was more passive and less encouraging and less able to praise their activities and achievements during the session.  She was ineffective in obtaining [Y]’s attention.  She was fairly inactive physically, and [X] ended up seeking to organise her mother, rather than the other way around.  At page 49 Dr B records:

Another notable observation was that there was a lack of joy and pleasure in what the children were doing.  The mother had difficulty modulating her emotions or changing her tone in a way that would have encouraged more engagement.  [Y]’s lack of involvement and his somewhat oppositional behaviour discouraged his mother.  Although it was clear that both children have a relationship with their mother, it was difficult to judge the quality of the attachment. 

It did seem that [Y] had an avoidance style, ignoring his mother and not responding and showing some irritation and some hostility.  Late in the session he also crawled over his mother’s legs with little regard to her feelings. 

[X] did not appear to have an avoidant attachment with her mother.  She was very actively involved in trying to engage her.  It is possible that she has a move anxious, ambivalent attachment style though the limited observation time would not enable me to make that judgment with any degree of conviction.  I was not able to establish whether [X] has a secure attachment.

71.Dr B commented on the change of dynamics that occurred after the Mother’s partner joined the session.  In effect, he took centre stage, and the Mother made even less effort to engage the children.

72.The above evidence again demonstrates some of the difficult challenges in this case.

73.At pages 50-51 Dr B makes some further important observations about the parenting skills of both parents:

From my discussion with both parents it was evident that thoughtful parenting and long term planning for their children was waylaid and a secondary issue due to the chaotic nature of their relationship and their troubled past histories. They both describe considerable conflict within the relationship that impacted on their capacity to make decisions that were in the best interests of both [X] and [Y]. Both parents have significant deficits in parenting skills no doubt as a consequence of their childhood histories of trauma and dislocation and subsequent psychopathology. The family could be characterised as having high levels of expressed emotion with recurrent conflicts and drama. There was a lack of order and structure. The household was described as chaotic by Mr Paige and this was confirmed by the reports from the Department of Community Services.
Mr Paige did not deny that there had been a high level of domestic conflict. He was often emotionally abusive towards
Ms Painton though he justified his abuse as being a consequence of the house being messy, often being dirty and unkempt, and chaotic. He described Ms Painton as being ineffective, lacking in a capacity to discipline the children and that the house was constantly noisy and there was damage everywhere. Ms Painton described Mr Paige as being obsessive-compulsive in that he wanted to keep everything clean and tidy. I doubt however that Mr Paige has OCD. I suspect that the frequent conflict managing the household had a significant impact on their capacity to spend positive time with their children. The both agreed that the household was crowded and that they lived in a very difficult neighbourhood. From the reports it was evident that there had been conflicts with their neighbours.

There was substantial marital conflict with verbal abuse and domestic violence. I understand that both parents were prone to use alcohol and Mr Paige was prone to use marijuana. He was also a regular consumer of Valium that he obtained through various means from his general practitioners. Ms Painton said that despite the Valium, he did not calm down. Mr Paige’s recollection was that only marijuana could help him calm down.

The reports from 1998 up to 2009 indicate concerns about the family and Ms Painton’s capacity to parent. Prior to meeting Mr Paige she had been involved in previous violent and conflicted relationships. The older children displayed evidence of having been emotionally and behaviourally troubled due to many adverse events that had occurred during this period of Ms Painton’s life. In more recent years it does appear however that the older children have settled. The school reports would indicate that [C] and [B] may have made some progress and Ms Painton’s reports about her daughter [A]’s progress were very reassuring and indicate that despite the chaos, somehow the children have managed to find a way forward.

From my discussion with both parents, I did not form the impression that in the past either of them had had the capacity or the opportunity to think very carefully about their own children’s future.

It was evident from talking to Ms Painton however that she has sought help for the children over the years and appropriate interventions have been organised. There have been assessments and interventions for [Y]’s language difficulties that are certainly essential and will be needed in the future. The evidence from the school also indicated that [X] is making good progress and that she must have, despite past events, sufficient support and encouragement to enable her to participate in school and learn. It is possible also of course that this is the only island of security and calmness in her life. School being an important buffer for children to deal with conflicted families and deprivation.

Mr Paige in his own account of events gave a reasonable description of the children’s development and his own involvement however I suspect this was somewhat embellished. When observed with the children however it did seem that he had a capacity to communicate with them and relate to them. He indicated that his hopes and wishes for the future were to support their education and other activities and to provide them with a loving and secure environment. He was at pains to indicate to me that he has new housing and lives in a much more secure, safe neighbourhood and has friends and that the children would be able to feel safe and secure and have adequate provisions if they were in his care.

Mr Paige also indicated an active interest in their schooling and expressed frustration at not knowing about their progress.

In talking with the children I did not form the strong impression from [X] that their mother was very actively involved at home in encouraging them. [X] did not say that anyone reads to her, including her maternal grandmother, with whom she has fairly limited contact. During the observed session her mother did not take the opportunity to show that she could engage her around reading a story to her. This may be a consequence of never experiencing this during her childhood. She has however had many interventions subsequently which she reported, and have been commented on in previous DOCS reports. There has been some frustration in the past about Ms Painton’s capacity to gain from these interventions. To some extent this may be a consequence of recurrent conflicts in violent and unsupportive relationships.

The effect of the chaos and disruption in the children’s upbringing however does not appear to have been as great as one might have expected. [X] is making progress at school and I found her to be a very engaging, likeable and socially competent child. A possible risk would be that she will take on too much responsibility and become parentified. This possibly occurred with her elder sister [A]. It is difficult to prognosticate about their future, as it will ultimately depend on the stability of any future relationships that Ms Painton has and whether or not Mr Paige has a role to play in their lives.

74.The Court observes that Dr B’s observations are consistent with the evidence from diverse sources.  The impression formed by the time of the hearing is that the Mother appears to be better supported than she has been in the past in terms of her parenting of the children. 

75.[X]’s continued good progress at school is notable.  Whether this is because she is such a resilient child, or is attributable to the Mother’s parenting, is hard to say.  The Court can confidently conclude, however, that in relation to [X] whatever the Mother’s parenting deficits are, they do not impede [X]’s good progress at school.

76.An important issue in this case is the willingness and capacity of each parent to facilitate and encourage a continuing relationship between the parent and the children.  From a legal perspective, this is probably better characterised as an exploration of the issue about the parent’s attitudes towards parenting and to the responsibilities of parenthood. 

77.Dr B makes the initial important, but somewhat obvious observation, that the capacity of both parents to cooperate with each other is inhibited.  That is undoubtedly the case.  The level of conflict between them is palpable.  There is no trust or communication whatsoever.  And, indeed, the totality of the evidence leads the Court to conclude that the Mother is fearful of the Father. 

78.Whilst the Father expressed himself to Dr B as being supportive of the children’s relationship with the Mother, Dr B clearly had some concerns in this regard.  He observed at page 52, for example:

Even when he was stating these more positive wishes, however, he would revert to being critical of the children’s mother, but then at other times be positive.  He described her level of care in derogatory terms, particularly her housekeeping skills.

79.It should be noted that from the Court’s perspective, Dr B’s observation is entirely consistent with the evidence before the Court.  Indeed, in evidence the Father struggled to say anything positive about the Mother, and very often in his evidence gave unresponsive answers in cross-examination that were nothing more than thinly veiled criticisms of the Mother.

80.From the Mother’s perspective, Dr B noted that her preference was that the children have no relationship with their father, because of both her and the children’s past experiences with him.  She conceded to him, a matter that Dr B recorded, that there certainly was a time in the post-separation period when she was supportive of the Father’s relationship with the children. 

81.His continued violence, including indeed increasing violence particularly directed towards her partner, caused her to change her views.  In this regard, the Court’s own impression of the Mother is that she would struggle, indeed probably not cope herself, with the idea of encouraging the children’s relationship with their father, let alone actually facilitate time and communication.

82.At page 52 Dr B warns the parents, but the Mother in particular, that as the children get older they may well come to resent the fact that they do not have contact with their father.  He notes that this was a problem she experienced with her older children, in terms of their acceptance of new partners in her life.

83.A significant issue of the Court, and one that Dr B was asked to consider, was the likely effect of changes in the children’s circumstances on them.  At page 53 in this regard he states:

In general, children who are able to maintain a satisfying and close relationship with both parents are less likely to experience significant emotional, behavioural, educational and relationship difficulties throughout their childhood and adolescence. Studies that have examined the long-term impact of greater father investment in the children find that this translates into better cognitive, behavioural, social and emotional outcomes. Teenagers with stronger ties to non-residential fathers have been shown to have fewer behavioural problems. Generally it is wiser to make arrangements for children to be able to continue to have a stable and hopefully positive relationship with both parents unless there are strong indications against this.

During the assessment [X] expressed some longing and a wish to engage with her father. She said it had been a long year and she indicated some concerns that she had started to forget his face. During the assessment she expressed a wish to see his house, come over and also that he should visit and watch her doing gymnastics. Despite the separation she did seem to have maintained in her mind an internal representation of her father and remembered good as well as bad aspects of his personality and character. [Y] did not appear to have any active memory but was responsive to his father’s overtures and play and warmed to him during the interview.

If Mr Paige’s behaviour and commitment to the children was taken at face value, there would be no doubt that it would be beneficial to the children and would have long term advantages. The difficulty is that his past history has been so troubled and there has been little evidence that he has been able to sustain any positive changes in his life for a prolonged period. His history of conflict in close relationships and significant forensic history and emotion disregulation could undermine any advantage that the children would have from having a sustained relationship with him. The children however are very dependent on their mother and the stability of her current relationship to ensure that they have a reasonably good chance of having a good adjustment in the future. Their mother’s own difficulties have to be taken into consideration as well as her own history of not sustaining relationships. It is quite possible that there are advantages of the children continuing to have a relationship with their father despite the many reservations about Mr Paige’s personality and character.

84.Once again, the complexities of this case become apparent from Dr B's Report, especially the last paragraph.  Dr B was clearly open to the possibility of some ongoing relationship between the children and their father, notwithstanding the obvious reservations he held about the Father’s personality and character.

85.Dr B was asked to comment on another important issue before this Court – that of parental capacity.  At pages 53-54 he notes that the past histories of both parents raise issues about their capacity to provide for the needs of the children as well as to protect them from the future risk of harm.  Both parents have significant deficits and long‑term problems that impede their capacity to provide optimal parenting. 

86.The Father has a long history of significant problems consistent with having early onset conduct disorder during adolescence associated with antisocial behaviour and frequent contacts with the law from his late teens through to more recent years.  In his twenties there was a substantial pattern of antisocial behaviour and problematic relationships. The Father’s history demonstrated his significant problems with emotion regulation and anger management.  Whilst in assessment he showed interest in the children, he was also pre-occupied in a somewhat egocentric way with his own role as their true father. 

87.The Mother too had a troubled and deprived childhood and adolescence.  Her early history of abuse had an impact on her having the experience of nurturing parenting.  She became a mother at a young age.  She became welfare dependent.  She experienced a series of troubled and violent relationships with different men.  Her presentation was of a person who had been traumatised by her life experiences. 

88.Dr B was asked to consider the significance of family violence orders.  He deals with this at pages 55-56.  His history recorded here is comprehensive, and because it accurately reflects the evidence before the Court, it is beneficial to reproduce here:

An Apprehended Violence Order was made with regard to Mr Paige on 17th January 2013. There had also been a previous Apprehended Violence Order against Mr Paige on 17th September 2009. This order was made following the incident when Mr Paige had thrown a bucket of water and injured [A] and has been referred to previously. The Department of Community Services following this incident had placed the children in care. There was a meeting on 7th December 2009 with [names omitted] at Wollongong CSC. In the supervising order for the following 12 months there was an undertaking by the parents to be involved in parenting courses and to have regular urine drug screening as well as to refrain from further violent acts. In the discussion with the child protection workers the parents agreed to the undertaking though it is notable that Mr Paige was somewhat argumentative. Ms Painton indicates that the situation had been improving. At the time of the review it was noted that [A] was often spending time staying overnight with a friend rather than residing at home. Both parents did sign the parenting care plan.

An AVO was taken out against Mr Paige on 17th January 2013. The police facts report indicates that Mr Paige had arrived at the home of Ms Painton where Mr A was residing at the time, having been in a de facto relationship with Ms Painton for the prior two months. Mr Paige had arrived at the house claiming that he had been denied access to his children during the week. It is reported that Ms Painton had refused access as she felt the father was not abiding by the Family Court orders. Mr Paige arrived at 5pm on Monday 14th January 2013. He was upset, yelling and banging on the front door. The mother and the younger children [X] and [Y] had gone upstairs. Mr A refused Mr Paige access. Mr Paige is reported to have said “f-ing c…, I want my kids, stay away from my kids, stay away from my ex, I know where you live. You remember the last time what I said, that I would get your head. Well I’m coming for it. I know more people in [B] than you so you are not a safe boy”. Mr Paige kept banging on the door. Mr A went upstairs with the mother and children and they reportedly were afraid. The police arrived shortly after and detained Mr Paige. He admitted to the threats but claimed he was provoked because the mother had refused to allow him to see the children. The police reported that he was agitated and aggressive but did calm down. He claimed that he did not think Ms Painton was at home and felt unfairly treated. He was taken into custody at the police station. He declined to be formally interviewed but he informed the police he was sorry and his intention was to see his kids and he was upset when he was refused. He claimed to love his kids and miss them. The police interviewed Ms Painton and she said that she wanted the accused Mr Paige to visit the children but does not want him to enter the premises. She wanted them to be picked up out in front of the home.

On 22nd April 2013 Mr Paige signed an affidavit indicating that he had not seen the children since 7th January 2013. On this occasion he denied threatening Mr A. He had been placed on a good behaviour bond for 12 months as well as an Apprehended Violence Order for 12 months. He stated that on three separate occasions he had attended the home of Ms Painton with the police and on each occasion he was refused access to his children. He states that he would never harm his children and that his had missed his daughter’s birthday and spending time at Easter. He claimed to be very frustrated. He claimed also to have many phone calls and text messages that were not answered.

In the Family Consultant Memorandum of 21st August 2013 the mother stated that she did not support supervised contact agreed to by consent at the previous court appearance. Mr Paige’s views and wishes were unclear as he had not been involved, but it was assumed that he wanted the previous orders from November 2012 reinstated.

The significance of these orders primarily relate to the potential threats to Ms Painton and Mr A. Mr Paige has had a history of making verbal threats and behaving in an agitated and aggressive manner on other occasions as previously stated in the body of the report. The main concern regarding the children is that they would be exposed to situations where they could observe Mr Paige behaving in an aggressive and threatening manner towards their mother and her current de facto partner Mr A. It does not appear that Mr Paige made any direct threats against the children however his behaviour towards their mother in their presence indicates a lack of insight and regard for the impact of his behaviour on the children. It is evident from a number of previous reports that when Mr Paige feels that he has been unjustly treated that he has substantial difficulties managing his emotions and has a tendency to become angry and make verbal threats and at other times behave in an aggressive manner.

89.It is important to record in relation to the material extracted above that it is entirely consistent with the evidence before the Court and that, to the extent that the Father presented an alternative version of events, the Court does not accept his evidence in that regard.  Indeed, the only reservation about Dr B's Report on this issue is that it probably fails to capture the true nature, extent, and history of family violence perpetrated by the Father.

90.In relation to parental attitudes at page 56 Dr B records:

Ms Painton believes that she is now providing a more stable and secure environment for her children and indicated her commitment to them. She does have a significant longstanding history of difficulties in parenting. She seems to have had significant problems with many of her children though it does appear from the school reports and her statements that the older children have been doing significantly better and are much more settled. From my observations she does appear to continue to have a limited repertoire of parenting skills that I attribute to her early deprivation and abuse and her long history of having been involved in dysfunctional and violent relationships. Currently she feels much more secure in her new relationship with Mr A. Whether confidence in this relationship is justified is difficult to judge at this point in time however observing them together they did appear to be very close and affectionate and supportive of each other. Ms Painton did not report any major conflicts or violence in the relationship with Mr A and it is possible that this is a relationship where she may feel more confident and supported. Prior to this however she has had significant problems with low self esteem and has had an avoidant personality style and been somewhat unreliable and inconsistent. In the past few years however she has undertaken a number of parenting courses and feels more confident in her capacity. The children are also at this stage quite young and are probably much more easily parented than adolescents, with whom she seems to have had more challenges. The children appear to be prospering at school and the reports as stated previously for [X] would indicate that she does not have any significant emotional or behavioural issues which would indicate that her current parenting and family circumstances may be more stable and supportive.

Mr Paige’s statements if taken at face value would indicate that he has an understanding of the children’s needs and a commitment to their welfare. He claims to have established a new home where he feels the children’s needs would be met and he lives in a much safer neighbourhood. Mr Paige’s interactions with the children in the observed session indicated that he does have a capacity to engage and respond appropriately to their needs. This however was an observed session where he was on his best behaviour. Mr Paige does have a history of being able to provide answers and responses that are socially acceptable whilst at other times it is clear that his behaviour is less than ideal. Mr Paige has not had prior experience as a parent and also has had limited contact with the children for the last 15 months. Whether or not he could meet the challenges and demands of being a consistent and stable parent for the two children as they become older is difficult to predict. It would depend on his capacity and willingness to refrain from the misuse of illicit drugs as well as not being involved in illegal activities.

91.Dr B was asked to give his professional opinion about the mental state of the parents.  He thought that the Father did not suffer from a major depressive disorder or from bipolar disorder.  Whilst the Father is on a disability pension for post-traumatic stress disorder he doubts whether this has been clearly established. 

92.Dr B’s opinion is that the most plausible diagnosis is a personality disorder associated with an increased risk of anxiety symptoms and significant problems with emotion regulation.  He diagnoses antisocial personality disorder probably associated with features of borderline personality disorder.  During the Father’s childhood and adolescence, based on his own evidence, he had conduct disorder.  At page 58 Dr B observes in relation to the Father:

Personality disorders can have a significant impact on parenting capacity. It does depend however on the extent to which the symptoms have a direct impact on their behaviour with their children. From the history and from previous documentation, Mr Paige does have significant problems that impacted on his relationship with his stepchildren when he was in the relationship with Ms Painton. His difficulties combined with Ms Painton’s deficits resulted in a significant number of interventions from the Department of Community Services.

At the time of the assessment I conducted I did not observe any significant evidence of current psychopathology other than evidence to indicate that he has significant longstanding personality problems associated with poor emotion regulation, lack of insight, an a tendency to make attributions that externalise responsibility for his actions. Mr Paige reported having undertaken several parenting courses that may have been beneficial. He would benefit in my opinion from further individual therapy or group therapy to address the specific issues of anger management and fathering skills if the Court so determines that he has continuing regular contact with his children.

93.In relation to the Mother, Dr B thought she didn’t display any evidence of serious mental health illness.  Her restricted range of affect and low self-esteem and self-confidence probably leads to a diagnosis of recurrent dysthymic symptoms and bouts of depression.  He thought she had personality traits and deficits as a consequence of childhood traumas and recurrent and chronic domestic violence. 

94.Her parenting style is deficient due to lack of confidence and lack of willingness to actively engage in parenting her children, but she could be supported through intervention and is attempting to do so.  The relationship between the Mother and her partner will probably provide her with sufficient security in order to continue to build on the skills that she has acquired as a consequence of the parenting programs she has attended.

95.In terms of the possible parenting orders in this case, Dr B notes at page 56:

This is an exceedingly difficult question to answer.

96.There was clearly some benefit to the children in seeing their father, both in the short-term and long-term, but this had to be weighed up against the past history of the Father’s behaviour.  If the Court decided that there should be time, it should be on a supervised basis for an extended period of time to give the Father the opportunity to demonstrate his commitment and capacity to be a reliable and positively engaged parent. 

97.If supervised contact were deemed suitable it would need to be in a formal setting with professional observers but then, perhaps after six months, move to a more informal but nonetheless supervised context, for example, at the Father’s home.  Overnight time was not indicated for the time being.

98.Dr B was cross-examined at length on 18 December 2014.  The following points emerged from his cross-examination:

a)Dr B confirmed his diagnosis of the Father as suffering from antisocial personality disorder with features of borderline personality disorder.  He thought there was very limited prospects of treating this medically, or by therapy, especially as the Father was now an adult.  Indeed, he thought that the risk with antisocial personality disorder is the downward trend as sufferers get older.

b)From a parenting capacity perspective, a parent who suffers antisocial personality disorder is more prone to use physical discipline, to yell, and to become angry.  The Father in particular was found to be egocentric, and prioritised his own needs, rather than the children’s.  In terms of parenting capacity, behaviour would be marked by rigidity, emotionality, and impulsivity.  From a child’s perspective, a great amount of emotional energy needs to be expended trying to please a parent who suffers from this disorder.

c)If the evidence demonstrates (as it clearly does) that the Father continues to use marijuana throughout the course of the proceedings, and indeed failed to provide four urine tests after requests, this raises concerns about his capacity to be consistent, the nature and extent of his dependence on the drug, as well as issues of trust given that the Father was so anxious to present himself in a positive light.

d)Despite the Father’s protestations that he has changed, there is little evidence over a sustained period of time to demonstrate this.  Thus, the concerns about his unpredictability and aggression remain unabated.

e)Dr B accepted that one of the disadvantages of any form of contact or communication between the Father and the children is the potential to undermine the children’s relationship with their mother.  Nonetheless, the biological relationship was an important one.  The Father would probably struggle not to communicate negative messages about the Mother to the children or in their presence.

f)The Father’s history of self-harm attempts does raise issues of safety relating to the children because he is so preoccupied with his own welfare.

g)Whilst the Mother continues to have problems in her relationship with the children, there were things that she could do, as well as professional assistance she could obtain to assist her with this.

h)If the Mother’s relationship with her partner were to end, this would be an adverse event both for the Mother and the children.  Orders for the children to spend time with their father would probably place some stress on the Mother’s relationship with her partner, particularly in circumstances where the Father is so palpably negative about the Mother’s partner.

i)The re-introduction of the Father into the children’s lives presents a risk to the Mother’s parenting capacity, but which needs to be weighed up against the benefits to the children.

j)Any re-introduction of the children into the Father’s life would need to involve long-term supervision, which he acknowledged, is probably not sustainable financially, emotionally or logistically and may ultimately not necessarily be in the children’s best interests if, for example, the Father could not sustain it, or emotionally regulate himself.

k)Dr B was made aware of the Mother’s recent involvement with both the Department and Police in relation to her hoarding behaviour and the condition of her home.  The evidence did indicate, Dr B noted, that the Mother had undertaken efforts to remedy the situation, but that she was dependent on external support.

l)Dr B did not believe there was a risk of the Mother decompensating if the children spent time with the Father and it proceeded satisfactorily.  If that were an issue, it would indicate that the Mother was more invested in a power struggle with the Father in relation to the loyalty for the children.  Dr B believed that if the Mother was adequately supported during the period of the Father’s time with the children she would probably be okay as she would probably cope.  The real risk, however, was if the Father used the opportunity to spend time with the children to undermine their relationship with her.  In this regard, the Father would probably struggle to keep his own thoughts and feelings to himself, and so the risk of him undermining the relationship was one to be taken into account.

m)Dr B was concerned about the Father’s capacity to comply with medical advice about, for example, medication.  He agreed that the evidence suggested that, historically, he regulated his own medication, he had abused prescription medication, he continues to use marijuana, and all of this demonstrated an inability to actually change his behaviour, despite his protestations about that.  Indeed, Dr B acknowledged that if the Court found that the Father was untruthful about his assertion that he had changed, this would be a real concern for the children’s welfare in his care.  Dr B had concerns, albeit with some ambivalence, about whether the Father had the capacity to change himself.

99.Dr B’s evidence is very helpful to the Court.  It is objective, independent, and balanced.  The benefits to the children, as well as the risks to the children, are clearly identified.

Meaningful relationship

100.There is no question that there is a benefit to the children of having a meaningful relationship with their father, in an aspirational sense.  This is clearly something to strive for, subject to other factors and considerations to be considered below.  The evidence before the Court does not establish to the Court’s satisfaction that the children at the moment have a meaningful relationship with their father. 

149.The children appear to have a good relationship with the Mother’s partner.  Indeed in some respects he seems to be able to offer more consistency and emotional availability than the Mother herself does.

150.The children’s relationship with their father is tenuous.  Whilst he clearly loves them, and whilst there is evidence of some attachment particularly between [X] and her father, their relationship with him would best be described as a tenuous one based on curiosity, tinged with some wariness.

The extent to which parents have taken opportunity to be involved in their children’s lives

151.The Father’s complaint, of course, is that he has been excluded from the opportunity to participate in the children’s lives as a result of the Mother’s actions.  The evidence indicates that the Mother was well justified in ceasing all contact and communication between the children and the Father, when she did.  If there is any criticism of the Mother, indeed, it would be that she failed to do so earlier.

Fulfilling obligations to maintain children

152.The Father’s evidence creates the impression that he has been in a very sound financial position since the middle of 2014 as a result of receipt of his compensation payout.  Indeed, his evidence was that he received $375,000.  He may well have had to make various payments out of that. 

153.He clearly has spent considerable money in establishing a household, indeed a very well stocked household, for himself and the children should the Court allow them to spend time with him in his home.  Curiously, however, he made no offer of financial support to the Mother at a time when he was clearly able to provide for them in a financial sense far better than she could. 

154.Perhaps a deeper concern was his failure to support the children in a financial sense after separation, a matter that he justified by reference to the fact that she was on Centrelink benefits and thus receiving money for the children.  Indeed, the almost remarkable evidence in this case is that he expected her to send the children to him with not just clothing but with food adequate for the period when they were with him.  His justification for this was that he was in a worse financial position than the Mother, an inherently unlikely proposition given the Mother’s circumstances and the Father’s own evidence that he was on worker’s compensation benefits until September 2012.  The Father’s failure, therefore, to fulfil his obligations to maintain the children again reflects on an attitudinal issue about his responsibility as a parent.

The likely effect of changes in the children’s circumstances

155.This is a complex issue.  Whilst change is an inevitable feature in a child’s life (for example, normal change as a result of progressing through developmental stages, changing schools and neighbourhoods etc.) these children have been exposed to significant unusual change, for example, the parental separation, and the Mother’s new relationship with Mr A.

156.The likely effect of change needs to be considered both in the short‑term, and in the long-term.  The available options for the Court appear to be no contact or communication, supervised contact and limited contact, or unlimited contact and communication.  Both the Mother and Independent Children’s Lawyer advance proposals that mean no contact and very limited communication.

157.Dr B does not rule this out, but also considered the possibility of supervised contact, whilst recognising it was not viable on a long‑term basis.  The Father’s proposal in his case outline, which in reality the Father abandoned (quite realistically) in favour of any order that would see him have a relationship with the children, was in any event unrealistic. 

158.In the circumstances of these children’s lives, quite apart from the fact that they haven’t seen their father for two years, they have experienced their father as violent and angry and unpredictable.

159.Dr B was obviously concerned about the loss of a biological parent to the children but did not give any specifics in terms of the potential impacts on the children of having no father in their life.

160.On the other hand, the Court’s concern is about how the Mother will cope and therefore how the children will deal with any form of contact between the children and their father.  It is clear from Dr B’s evidence that, in addition to the vulnerabilities that the Mother had before she met the Father, she is even more vulnerable and traumatised as a result of the relationship with the Father, particularly the violence and abuse perpetrated by him, including after the relationship ended. 

161.The Mother’s psychological vulnerabilities are well recorded in Dr B’s evidence.  Whilst he seemed to suggest in cross‑examination that she would cope with the children spending time with their father, provided such time went smoothly, and provided the Father did not seek to undermine the children’s relationship, it is possible that he was being overly optimistic in this regard. 

162.In other words, even if the Father were not undermining the children’s relationship with their mother, and even if the children’s time with their father proceeded satisfactorily, the Court believes there is a real risk that the Mother will not cope.  Her parenting capacity is already challenged by the circumstances of her life, including the relationship with the Father.  Both she and the children are already vulnerable.  She clearly feels threatened by him, intimidated by him, and traumatised by the relationship. 

163.The Court is prepared to infer that even if she does not decompensate (a matter her Counsel put to Dr B but which he rejected) she will nonetheless find the task of parenting these children much more difficult in a context where she has to accept, let alone encourage, the children spending time with their father.  She would, the Court infers, be in constant anxiety about whether the Father will behave inappropriately in their presence.  It would probably provide little reassurance to the Mother to know that the Father were being supervised, even if that were a matter that was reasonably practicable, something that will be discussed below.  In any event, it is far from clear that the two conditions that Dr B referred to (that the children cope with contact with their father and that he does not undermine their relationship with their mother) are conditions that would be satisfied. 

164.Even if the children coped, for reasons articulated above, there is reason to be concerned about the Father’s capacity to self‑regulate the strong views that he has about the Mother.  After all, if he couldn’t control the expression of his negative feelings about the Mother in open Court, under the critical scrutiny of a Judge and two barristers, what confidence can the Court have that he will somehow self‑regulate when spending time with the children, even in a supervised environment? 

165.Regrettably, in the circumstances of this case, even supervised time is problematic because of the risks that have been referred to.

Issues of practical difficulty and expense

166.Having regard to the evidence, and particularly Dr B’s evidence, even if an order for contact were made it would be for supervision over an extended period of time, initially in the closely constrained circumstances of a supervised contact centre but then, subject to adequate progress, supervision in a less formal environment. 

167.Unless the Court were prepared to make an interim order, something it is not prepared to do for the reasons articulated below, the only order it could make would be a final order for supervision.  Unsupervised contact is simply not foreseeable on the evidence before the Court.  A final order for supervised contact is impractical.  The policy reasons for not making such an order are well recognised. 

168.Even if the Father’s financial circumstances permitted him to finance this, it is simply unclear for how long he could sustain this.  It is quite likely, therefore, that the only possible order for contact in this case being a supervised contact order, it would create almost insurmountable difficulties of practical difficulty and expense.

Parental capacity

169.As the Independent Children’s Lawyer’s Counsel conceded in cross‑examination, and Counsel for the Mother acknowledged, there are issues about the capacity of each parent to provide for the needs of the children.  However, on the balance, the concerns about the Mother’s capacity are less than the concerns about the Father’s capacity.

170.Dr B’s evidence is the best source of information in this regard.  His observations of the children’s interaction with their mother are troubling.  She clearly struggled with parenting.  The challenges she faces, however, are mitigated by a number of factors.  Firstly, a willingness to accept professional assistance.  Secondly, the positive supportive role played by her partner, Mr A.  Thirdly, the Mother appeared to be willing to take on board Dr B’s recommendation that she participate in therapeutic parenting assistance.  Fourthly, the Court believes that the cessation of these proceedings, and the making of an order that she herself seeks for no contact, will itself empower the Mother to become a better parent. 

171.One must not lose sight of the fact that even though the Mother’s parenting capacity was already compromised by the time the Father came into her life, his violence and abuse and other antisocial behaviours must have had an exacerbating impact.

172.The concerns about the Father’s parenting capacity are much greater, in any event.  He has exposed the children to violence and abuse perpetrated by him, not just towards the Mother, but to [A] and to [X].  In relation to [X], even if the cigarette burns were not deliberate, they are evidence of neglect on his behalf.  The concerns about his parenting capacity continue as a result of the unresolved issues about his mental health, his ongoing consumption of cannabis, his lack of remorse and lack of insight.

173.In reaching these conclusions the Court recognises the somewhat cautious optimism expressed by Dr B after the observation between the Father and the children.  In his Report, Dr B opined that the Father, “Does have some understanding and capacity to engage both children”.  That is not the same, however, as concluding that he has the capacity to meet the needs of the children.

Maturity, sex, lifestyle and background matters

174.The difficult backgrounds of both parents has already been referred to in these reasons.  Who the parents are today is very much a reflection of their experiences during their lives.  Most parents aspire to providing their children with an opportunity to have lives better than their own.  One can only hope that that will be the case for these children.  They have already been exposed to so many negative influences, in their relatively short lives.

175.That [X] has been so resilient is a wonderful thing.  Her continued good progress at school is positive.  Her Father’s inability to recognise that this might have something to do with the parenting provided by the Mother merely reflects on the difficulties that he faces in his own life. 

176.If the question were asked, hypothetically, in which household do these children have the best chance for a better life than their parents and in what circumstances, the Court believes that having regard to the evidence before it and the matters discussed in these reasons, that would be in the Mother’s household.  Despite her problems and vulnerabilities, some of which are quite formidable, the risks in the Father’s household are greater.

Parental attitudes

177.In many respects this has already been discussed in the context of other considerations recorded above.  There is no need to traverse what is already familiar territory.  Looking back, whilst the Mother could probably have done more to protect the children from the Father, the fact is that if the Father had not behaved in the manner that he did there would not have been anything to protect the children against.  His was irresponsible parenthood, which is to be measured not just by the extent to which he may have financially provided for his family, but also by reference to many other factors including the extent to which he supported the Mother in her parenting, and the way in which he treated them all.

178.The Father was very proud of the new household that he has created recently, as a result of the receipt of his compensation payment.  The evidence of his new household is very impressive, in some respects.  In a material sense, it is clear that he can offer the children far more than the Mother can. The contrast between the household that he offers for the children, as evidenced by the photographs he presented to the Court, and the household of the Mother that he described, and which is described in other objective evidence before the Court, could not be more stark.

179.But children need more than material provision.  They need a parent who is available to them, something which the Father clearly is not if he is consuming cannabis, or abusing prescription drugs, or other drugs.  They need a parent who is able to focus on them, and not their own needs, but the lasting impression formed of the Father is that the case was more about meeting his own needs to be a Father, rather than the children’s needs to have him as the Father in their lives.

180.It is concerning that notwithstanding the Father’s recently found financial and material abundant he made no offer whatsoever to help the children in a tangible way, despite his clearly stated concerns about their circumstances.  This too reflects irresponsible parenthood, and a poor attitude.

Family violence

181.The evidence in this regard, and the concerns that the Court has have been dealt with at length.  There is no need to traverse these matters again.

The order least likely to lead to the institution of further proceedings

182.The Court had considered the possibility of making interim orders, and openly canvassed this with the parties.  Given that the only interim order that would have been feasible, at best, was an order for supervised contact, the Father certainly welcomed this.  By the end of the evidence, both the Independent Children’s Lawyer and the Mother strongly favoured the making of a final order.  One can understand why.

183.Quite apart from the obvious benefit to the children and to their Mother of bringing these proceedings to a final conclusion, the Court concludes that supervised contact is not in the best interests of the children and is simply not practical in the circumstances.  A final order is clearly indicated.

184.The Court cannot rule out the possibility of an appeal.  The Father indicated that he would, more or less, never give up in his quest to have a relationship with his children.  The right to appeal belongs to the Father and he is free to exercise it as he sees fit.

Parental responsibility

185.The Father proposes equal shared parental responsibility. The Mother proposed sole parental responsibility. The Independent Children’s Lawyer proposed sole parental responsibility to the Mother, subject to an obligation on her to inform the Father of decisions made. The evidence in this case leads inevitably to the conclusion that the presumption contained in s.61DA does not apply because the Father has engaged in family violence.

186.In any event, s.61DA(4) also applies in that, by any analysis of the s.60CC considerations, it would not be in the children’s best interests for the parents to have equal shared parental responsibility. The total absence of communication and trust, and the ongoing negative views that the Father has about the Mother, strongly contraindicate equal shared parental responsibility.

Order in the best interests of the children

187.It is not without regret that the Court concludes that, having regard to the evidence, the children should spend no time with their father.  If the case were decided merely by reference to the extent to which the Father says he loves these children, the decision would be quite different.  However, the decision is informed by many other factors, all of which have been discussed in these reasons. 

188.There is an unresolved and unacceptable risk of the children spending time with their father.  Supervision is not an adequate way of addressing these concerns.

189.Whereas the Mother makes no proposal in relation to the Father communicating with the children, the Independent Children’s Lawyer proposes that he be at liberty to forward letters and/or gifts to the children twice each year, and that the Mother be permitted to inspect them and provide them to the children if the communication is considered appropriate for them. 

190.This provides a tenuous, but nonetheless real, ongoing connection between these children and the Father.  There is no risk to them.  The Court is satisfied that the Mother will be adequately, but not overly, protective of the children, in terms of this communication from their Father.  An order will be made in terms of that sought by the Independent Children’s Lawyer.

191.The Independent Children’s Lawyer proposed an order about counselling and parental education, as recommended by Dr B, and as supported by the Mother.  An order will be made in terms of order 8, with the agreed amendment about her using other facilities as might be recommended by Dr B or by the University of New South Wales Behaviour Research Clinic.

192.Both the Mother and the Independent Children’s Lawyer proposed various restraints.  Having regard to the evidence the Court considers these restraints to be appropriate, entirely justified by the evidence, and to go no further than is required by the evidence.

I certify that the preceding one hundred and ninety two (192) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:       27 February 2015

SCHEDULE ONE

Orders sought by the Father

1. The orders made in the Local Court of NSW at Wollongong on 15 November 2012 be dismissed.

2. The parties have equal shared parental responsibility for the children, [X] (born [in] 2006) and [Y] (born [in] 2009).

3. The children live with the mother.

4. The children spend time with the father as agreed, but failing agreement as follows:

   4.1 each weekend from after school (or 3:00pm if not a school day) Friday to before School (or 9:00am if not a school day) Monday

5. The children spend time with the parties on special occasions as agreed, but failing agreement, commencing six months from the date of these Orders, as follows:

   5.1On a child’s birthday:

   5.1.1   If the child’s birthday falls on a non-school day; with the party who the child is not living or spending time with from 9:00am to 2:00pm.

   5.1.2   If he child’s birthday falls on a school day; with the party who the child is not living with or spending time from after school to 5:30pm.       

   5.2On the parties’ birthdays;

   5.2.1   If the party’s birthday falls on a non-school day; with that party from 9:00am to 5:00pm

   5.2.1.   If the party’s birthday falls on a school day; with that party from after school to 8:00pm        

   5.3With the father on father’s Day from 9:00am to 5:00pm.        

   5.4With the mother on mother’s Day from 9:00am to 5:00pm.       

   5.5  At Christmas:

   5.5.1   In odd numbered years with the father from 9:--am Christmas Eve to 3:00pm Christmas Day and with the mother from 3:00pm Christmas Day to 5:00pm Boxing Day.

   5.5.2   In even numbered years with the mother from 9:00am Christmas Eve to 3:00pm Christmas Day and with the father from 3:00pm Christmas Day to 5:00pm Boxing Day.         

   5.6  At Easter:

   5.6.1   In even numbered years with the father from 9:00am Easter Saturday to 3:00pm Easter Sunday and with the mother from 3:00pm Easter Sunday to 5:00pm Easter Monday

   5.6.2   In odd numbered years with the mother from 9:00am Easter Saturday to 3:00pm Easter Sunday and with the father from 3:00pm Easter Sunday and with the father from 3:00pm Easter Sunday to 6:00pm Easter Monday

1. That the children communicate with the father by telephone each Tuesday and Thursday between 5:30pm and 6:00pm.

2. Each parent is to ensure that the other parent is kept informed as soon as reasonably practicable of:

   7.1   Any medical problems or illnesses suffered by the child.

   7.2   Any medication that has been prescribed to the child that needs to be taken while that child is in the care of the other parent.

   7.3   Any specialist medical appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the child.

   7.4   Any sporting, social, school or religious functions which the child is to attend.

   7.5   The residential address of the parent.

   7.6   The telephone contact number for the other parent.

   7.7   Any other matter relevant to the welfare of the child.

3. The parties be restrained from making critical or derogatory remarks about each other or members of each other’s family in the presence of the child and the parties are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either parent or members of their family in the child’s presence.

4. That within 14 days the mother enrol in the Keeping Kids in Mind course offered by Catholic Care and attend that course as directed by that service.

   Orders sought by the Mother

   1.That the Mother have sole parental responsibility for the children [X] born [in] 2006 and [Y] born [in] 2008 in relation to the care, welfare and development of a long term nature involving the children, but not be limited to, issues about:

   (a)the education of the children – both current and future;

   (b)the religion of the children;

   (c)the health of the children;

   (d)any change to the children’s living arrangements

   2.That the mother have sole responsibility for making decisions about the children’s day to day care, welfare and development during times that the children live with the mother.

   3.That the children live with the Mother.

   4.That the father be restrained from spending time with or attempting to contact or approach the children or attending the children’s school or any of the children’s extra curricular activities from time to time.

   5.That the father is restrained from approaching the mother or her place of residence from time to time, her place of employment from time to time or coming within 4 kilometers of those places.

   Orders sought by the Independent Children’s lawyer

   1.   That all previous parenting Orders be discharged.

   PARENTAL RESPONSIBILITY

   2.   That the Mother have sole parental responsibility for the children, [X] born [in] 2006 and [Y] born [in] 2008 (“the children”).

   3.   That the Mother inform the Father of all decisions made in respect of the long-term care, welfare and development of the children within seven (7) days of such decision being made by forwarding same by post to the father’s last known residential address.

   LIVING ARRANGEMENTS

   4.   That the children live with the Mother.

   SPENDING TIME ARRANGEMENTS

   5.   That the children spend no time with the father.

   COMMUNICATION

   6.   That the father be at liberty to forward letters and or gifts to the children on two occasions per year, and that the mother be permitted to inspect the letters or gifts forwarded by the father, to the children, and provide same to the children provided that the mother deems such communication is appropriate for the children to receive.

   AUTHORITY

   7.   That this order operates as the authority of the mother for any school or other place of education attended by the children, to provide information to the father in respect of the children’s academic progress.

   COUNSELLING AND PARENTAL EDUCATION

   8.   That within fourteen (14) days of the making of the-se Orders, the Mother shall do all acts and things to apply to the University of New South Wales Child Behaviour Research Clinic or other such facility as is recommended by Dr B or that Clinic for therapeutic parenting assistance, and attend for so long as is recommended, to assist the mother to improve her parental capacity. 

   RESTRAINTS

   9.   That the Mother be restrained from making critical or derogatory remarks about the father or any member of the father’s household or family in the presence or hearing of the children and immediately remove the children from the presence of any other person who does so.

   10.  That the mother be restrained from physically disciplining the children, or permitting any other person to do so.

   11.  That the Father be restrained from:

   a.    assaulting, molesting, harassing, threatening, stalking or intimidating or otherwise interfering with the Mother, or any member of the Mother’s household or family;

   b.   Attending the mother’s home, or within 500m of the mother’s home;

   c.   Attending the children’s school or any other place of education, or coming within 500m of such place;

   d.   Contacting the mother or children by any means, other than in accordance with these Orders.

   12. The preceding Order is an order for the personal protection of the Mother and members of the Mother’s household and family pursuant to section 68B of the Family Law Act 1975 (Cth), to which a power of arrest without warrant, attaches, pursuant to s68C.