Payne and Payne

FAMILY COURT OF AUSTRALIA

PAYNE & PAYNE

[2008] FamCA 694

FAMILY LAW – CHILDREN - Best interests

Family Law Act 1975 (Cth)

APPLICANT:

Mr Payne

RESPONDENT:

Ms Payne

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

SYF

4343

2003

DATE DELIVERED:

27 May 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

22 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Jackson

SOLICITOR FOR THE RESPONDENT:

MCW Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Clifford

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

Orders

Final Children’s Orders in addition to those final Orders made 23 May 2007.

The children, a son born in February 1995 and a daughter born in March 1997 spend time with the father, Mr Payne, as follows:
(a)Each 4th weekend from 6.00 pm Friday until 4.00 pm Sunday. First weekend to commence 20th June 2008.
PROVIDED THAT:
(b) The children’s time with the father is supervised by:
(i)Ms F; or
(ii)Mr and Mrs P; or
(iii)Ms C; or
(iv)such other person agreed to by the parties,
and those persons sign an undertaking in respect of the supervisory responsibilities in accordance with annexure “A” to these orders.
(c)the children’s time with the father is conditional upon the father’s compliance with order 3 below.
In the event of the mother not agreeing to a supervisor nominated by the father then the father may list the matter before a Judicial Registrar of the Court or before a Federal Magistrate to have that person approved by the Court as a suitable supervisor for the father’s time with the children.
The children’s time with the father pursuant to order 1 above be facilitated as follows:
(a)The father is to notify the mother, by email or in writing, no later than seven (7) days prior to each period of time the children are to spend with their father, of the identity of the supervisor for the upcoming period of time. In the event of the mother not previously being provided with the contact details for that supervisor the father is to provide those details.
(b)The mother is to be at liberty to contact the supervisor prior to the upcoming period of time for the children to spend with their father. In the event of the mother not being satisfied that the arrangements for supervision are satisfactory she is to notify the father of same and her reasons for so saying. This communication to be by email.
(c)The mother is to provide to each supervisor nominated from time to time her contact details so that the supervisor may be able to contact the mother should that prove necessary.
(d)Prior to any time the father spends with the children he is to ensure that a signed undertaking in the form annexed to these orders (Annexure “A”) is held by the mother (this need only be provided once and thereafter will apply to each occasion upon which the supervisor is used by the father for his time with the children) in relation to the particular supervisor which the father will have with him on that occasion;
(e)The mother will deliver the children to the supervisor and the father at McDonalds Family Restaurant, at A at the commencement of their time with the father; and
(f)The mother will collect the children from the supervisor and the father at McDonalds Family Restaurant at A at the conclusion of their time with the father.
The father is to confirm by email to the mother on the Thursday immediately before each period of time where he is entitled by these orders to spend time with the children whether he will be at the changeover point on the following day to collect the children. THE MOTHER IS NOT REQUIRED TO LEAVE HER RESIDENCE TO TRAVEL WITH THE CHILDREN TO THE MEETING POINT UNLESS THE FATHER HAS SO CONFIRMED PURSUANT TO THIS ORDER THAT HE WILL BE THERE TO COLLECT THE CHILDREN.
The children’s contact periods with the father provided for in order 1 hereof is conditional upon:
(a)the father attending for regular treatment and review upon Dr G, Medical Officer and/or such other psychologist or psychiatrist to whom Dr G may refer him, at such times and at such frequency as those persons may direct; and
(b)the father continuing to take such medication as prescribed by Dr G, or any other psychiatrist or medical practitioner providing treatment to him; and
(c)the father providing to Dr G or any other psychiatrist/psychologist, or medical practitioner who may be treating him for depression, within seven (7) days of the date of this order and irrevocable authority to notify the mother and the Independent Children’s Lawyer if the father:
(i)ceases to take his prescribed medication;
(ii)ceases to follow medical advice or attend for psychiatric review as may be required of him;
(iii)in his opinion, the father’s mental state is such that he is not able to properly care for the children during contact periods,
AND should the father not provide such an authority, then the children’s time with the father pursuant to order 1 above shall be suspended.
The Independent Children’s Lawyer is to inquire of Dr G and the father’s general practitioner, whether he holds the signed authority prior to the first period of time the children are to spend with the father and then confirm directly with the mother that such authority is held.
In the event of the mother receiving advice from Dr G or another psychiatrist/medical practitioner as to any of the matters referred to in order 3(c) hereof the time for the father to spend with the children is suspended until such time as the mother receives further information from the subject notifier that the facts which gave rise to the notification are no longer matters for concern in relation to the father spending time with the children.
The children communicate with the father by telephone:
(a) each Wednesday evening (or such other day as may be agreed between the parties) between 6.30 pm and 7.00 pm; and
(b) each Sunday when the children are not to spend time with the father pursuant to order 1 above, between 6.30 pm and 7.00 pm,
PROVIDED THAT such calls are not to be longer than 30 minute’s duration. Unless and until the father is provided with the mother’s landline telephone number the mother is to cause the children to make the call to their father at the appointed time and on the appointed day. The mother is to monitor the phone calls and terminate them in the event of the father saying inappropriate things to the children.
The Independent Children’s Lawyer is to provide to Dr G and to the father’s General Practitioner a copy of the orders made today.
The mother do all acts and things necessary to authorise and direct the Principal(s) of whichever school(s) the children may attend to provide to the father, copies of the children’s term school reports (if provided), and information about the children’s academic and extra curricular achievements and progress, and for this purpose the mother will provide to the relevant school Principal(s) a copy of these orders.
Should the father’s time with the children fall on the children’s birthdays or Christmas Eve/Christmas Day then the mother may, at her election, notify the father that the weekend time for the children to spend with him on that occasion will be moved forward or back by one weekend.
The appointment of the Independent Children’s Lawyer is extended for a period of 12 months from the date hereof.
Pursuant to sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “B” and these particulars are included in these orders.

Schedule “B”

I [the father] of [address] hereby authorise and direct Dr [G] to contact the Independent Children’s Lawyer Clyllyn Sperling at the NSW Legal Aid Commission (02) […] and the children’s mother [Ms Payne] (through her solicitor Kylie Holmes (02) […] in the event of your being of the opinion that my health is deteriorating to a level where you think it would be unwise for me to spend time with my children or where you hold the opinion that any of the following conditions apply:

I. I cease to take my prescribed medication;
II.I cease to follow medical advice or attend for psychiatric review as may be required of me;
III.In your opinion, my mental state is such that you believe I am not able to properly care for the children during their time with me under these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4343 of 2003

MR PAYNE

Applicant

And

MS PAYNE

Respondent

REASONS FOR JUDGMENT

On 29 May 2007 I delivered a judgment following a five day hearing in this matter. At the conclusion of that judgment I made some interim orders and also some final orders. The interim orders related to the time that the children, a son (who is now 13) and a daughter (who is now 11), spend with their father. I here incorporate into these reasons my reasons in relation to the parenting issues delivered on 29 May 2007.

The Reasons Delivered 29 May 2007

Introduction

This case, like so many which the Court hears now, is a sad and difficult case. The children, a son aged 12 and a daughter aged 10, love their father very much and always have. The father loves his children very much and is desperately seeking the opportunity to have them as part of his daily life. The one matter which interferes in the father being able to share equal time in the care of the children with their mother is his history of mental ill health.
As the history of the parties’ relationship has unfolded it now appears that the father has suffered from depression of different types from about 1988 to current date. This depression, it seems probable, caused the breakdown of the marriage in circumstances where the illness did not enable to father to be able to identify why the mother withdrew from the marriage.
It is acknowledged by the mother that the father was a loving and involved father to the children until about the date of separation in mid 2003. Thereafter events of a catastrophic nature have besieged the father and robbed his children of his care and nurturing. These events, I am satisfied, stem from his depression and mental ill health.
At the time of the hearing the evidence from the father’s treating doctor discloses a guarded but positive view of the future for the father. His prognosis is good. He shows considerable insight into his illness and is compliant with his doctors medical advice. Unfortunately the history of the condition suffered by the father shows that there is always the possibility of decompensation to ill health.
At the conclusion of the hearing the Court Appointed expert, Dr R, suggested a trial of time for the children with the father. She suggested a review in about six months time with the view to looking to relax or eliminate the necessity for supervision if the children’s time with their father works well for them.

Background facts

The father was born in January 1958 and is 49 years of age. The mother was born in October 1958 and is 48 years of age. The parties commenced their cohabitation in about 1982 and married in September 1992. The parties separated in July 2003.
There are two children of the marriage: a son born in February 1995 (now 12) and a daughter born in March 1997 (now 10 years of age.).
At the commencement of the cohabitation the father had savings of about $10,000, a motor vehicle, tools of trade, furniture and effects (this is a disputed fact which I will deal with later). The mother had furniture and effects. The father was employed as a tradesman and also played a professional sport which earned him about $3,000 per annum. The mother was employed by T Company. She later obtained employment as a senior accounts administrator at E Company.
In 1985 the parties purchased a vacant block of land at TM. The purchase price was $26,950. The parties borrowed $25,000 from the State Bank. At some time later the father discharged the mortgage after winning $27,000 through betting on a horse race.
In about 1985 the father joined the New South Wales Public Service. In 1989 he completed a course and obtained a Builder’s Licence. In 1990 he became a partner in B Company.
In September 1992 the parties married and commenced to live at L.
In 1993 the father made a claim for Workers Compensation arising from a motor vehicle accident. The father received somewhere between $57,000 and $60,000. It seems common ground that the money or at least part thereof was invested in a bookmaking business conducted by the father.
In 1995 the mother gave up her work due to pregnancy. She received $12,700 in retirement benefits. The parties’ son was born in February 1995. In that same year the parties purchased a property at P for $283,000. The purchase was funded through the sale proceeds of the TM property of $81,000, compensation monies received by the father, monies received through an AMP investment and the investment in B Company. The parties borrowed about $100,000.
In March 1997 the parties’ daughter was born.
In September 1999 the parties sold the P property for $460,000. They then purchased a property at R. Thereafter renovation work was carried out on the property principally by the father. The father says he reduced the contact work he was taking on in order to work on the renovations. He undertook minor contact jobs during this time to continue to provide income. The mother says the father was largely unemployed during the period until May 2003. There is little inconsistency between the parties on this issue and I do accept the father’s evidence on this point.
In about August 2001 the first evidence emerges of disharmony between the parents. At that time the mother alleges that the father kicked her whereas the father said he pushed the mother away with his feet.
In July 2002 the parties sold the R property for $633,000 and moved to W where they leased a property. In April 2003 the parties moved to D. In that year the father commenced full-time employment.
In 2003 the mother again alleges conflict between the father and herself and the father and the children.
In July 2003 there was a period of separation between the parties. During this time the father had contact with the children at specified times. On 29 July 2003 the father filed an application in the Family Court. At about this time the parties agreed to an equal shared time arrangement for the children.
In August 2003 the mother rented premises for herself in W. On 7 September 2003 the father attended Y Hospital. Further mention of this event will be made at a later time. The father was discharged from hospital on or about 19 September 2003.
In October 2003 the mother alleged the father attended at her home and tried to open the door and gain entrance. She further said that the father had made suggestions that he would kill both the mother and the children however he then apologised.
In October 2003 the mother applied for an Apprehended Violence Order against the father.
In November 2003 the father was admitted to Q Hospital where he stayed for six weeks.
On 11 December 2003 an Apprehended Violence Order was made by consent.
On 16 December the mother alleged the father had attended at her home contrary to the AVO. The police were called and the father was arrested.
In December and early January 2004 the children had some contact with their father.
In February 2004 the mother says that during a telephone conversation between she and the father he said to her, “I think I’ll just commit suicide.” She then telephoned the police who visited the father.
In March 2004 at the father’s request the mother attended the father’s home. She says she observed the father shaking. She said the father told her he was thinking of stabbing himself.
Again in April 2004 the mother claims the father threatened suicide.
In April 2004 the father was arrested on the complaint of the mother.
On 3 May 2004 the father was convicted of breaching an Apprehended Violence Order. He was fined $500 and sentenced to six months gaol suspended on the basis that he be of good behaviour.
On 14 May 2004 the father was again arrested on the complaint of the mother. He was taken to gaol. He was later convicted of breach of Apprehended Violence Order. He was sentenced to nine months imprisonment. The father appealed. His sentence was reduced to one month’s gaol expiring on 24 June.
In July the father telephoned the mother and asked for $5,000 which she refused.
On 9 July 2004 the father smashed the door of the mother’s home with a sledge hammer and entered her home. He stayed in the home until 10 July. For this the father was arrested and bail was refused. The father attended before the District Court on 7 April 2005 and pleaded guilty to break and enter. He was sentenced to the rising of the Court. The father had spent 10 months in gaol.
In late 2004 the father’s contact with the children ceased.
Dr R was engaged as an expert in the proceedings in this court. On 1 June 2005 she saw the children and the father together. On 24 June 2005 Orders were made for the father to have contact with the children each alternate weekend from 10.00 am to 2.30 pm at the father’s sister’s home to be supervised by the father’s sister.
The father says that on 1 September 2005 he lost his accommodation as a result of statements made by the mother to his landlady.
In September 2005 the father had his first consultation with Dr G.
On 1 December 2005 the mother applied for variation of the Apprehended Violence Order. She later withdrew that application.
On 15 December 2005 Orders were made for the father to have contact at the CentaCare Children’s Contact Service. He would have contact from 11.50 am to 1.15 pm on 24 December 2005 and then each second weekend as arranged with the contact centre.
On 1 February 2006 the father was admitted to U Hospital and remained there until 6 February. On 23 February 2006 he returned to U Hospital again and remained there until 28 April 2006.
In January 2007 the father entered into a contract with Z Business. He paid $30,000. This was financed by visa card drawings of $10,000; sale of IAG shares of $6,000; long service leave proceeds of $10,500; and savings of $3,500.
On 18 January 2007 the father saw Dr G for a review.
On 17 July 2006 Dr R signed an affidavit which annexed a report prepared by her for the court. In order to prepare the report Dr R says that she saw the parties and the children over a period of time commencing March 2005 and concluding 30 June 2006. She reviewed documentation provided to her by the letter of instruction from Ms Holmes, the mother’s solicitor. She also reviewed documents provided by the Independent Children’s Lawyer. She listed a number of conversations she had including a conversation with Dr D, Psychiatrist at U Hospital.
The mother reported to Dr R in March 2006 that the parties’ son continued to be angry and was in counselling. She said that he had not been as aggressive to her since the incident in August when he physically assaulted her.
When the children were seen by Dr R on 9 March 2006 she reported as follows:
‘“Both were very forthright about their wishes about father. [The son] stated he wanted to see more of him while [the daughter] thought he “should live down where we live and we have one week with Mum and one week with Dad”. … [the son] agreed with her.
…
If sharing residency is not possible, [the son] said he’d like to see Dad more – from Saturday to Sunday at their aunt’s home. If residency was equally shared, “Dad would be really really happy”. [The son] spontaneously volunteered that Dad had not asked them to say anything to me.”

In her “Assessment of [the daughter]”, Dr R reports as follows in relation to her presentation in August 2005:
“[The daughter] presented as a confident eight year old with a positive mood. She seemed happy with her new school and mentioned many children who are her friends. She thought seeing Dad is “fantastic” and wanted more time with him. Asked how much time, she said “a couple nights or a couple of weeks…then go to Mum’s for a couple of weeks”. Asked what it is like to say good-bye to Dad, [the daughter] said “sad” – she and Dad cry. However she is “not really” worried about him.”
In relation to the son she said, “He has a bad temper.”
In her report under the heading “Assessment of [the son]”, Dr R says as at 8 August 2005:
‘[The son] was a rather tense 10 year old who did not impress as being happy. He volunteered to be seen first and did not have to think about what it was like seeing Dad again (“good…fun…great”) and how he would like to see more of him, suggesting for “a couple of weeks…fifty/fifty…a week each” with Mum and Dad. He stated Dad “might move down” to where they now live. Asked who else wants the shared residency, [the son] replied “[the parties’ daughter] and Dad…Dad says this is what he would like…didn’t tell me to tell anyone”.’
Dr R recorded that the son acknowledged he had been in fights with his mother.
Dr R recorded that when the son was asked to state his “3 Magic Wishes” he said:
‘1. “Dad and Mum to get back together”, which he knows will not happen.
2. “Happy life for everyone”.
3. “Everyone to be rich…buy a mansion”.’
When Dr R saw the mother in 2005 she reported as follows:
“She described still feeling “very, very scared” of [the father] as she does not “believe he’s over the marriage breakup”. She fears he could break in again and wonders if he could kill her. She seemed unsettled that he had not agreed during the Court proceedings in June to building up to overnight contact over three months. … [The mother] wondered if they “could have a repeat of [W property]…hope he gets back to his normal self”.’
The mother told Dr R that in relation to the son she has reports of problems with anger at school and that he has been aggressive at home to both the daughter and the mother. She told of having ended an hour long telephone call between the son and his father. When she terminated the call the son punched her in the face, drawing blood, kicked, swore, threw things and did not settle himself for about an hour.
Dr R saw the mother again in March 2006. On that occasion she reported that the children were doing well at school. She said that the son in particular blames her for his father’s condition. She said the son’s anger has improved a little. She said he punches the daughter. She said that the son has said for some years, “I wish I could kill myself … where’s the knives?” She said she had put the knives up high as once the son grabbed a knife when they lived in W. She told of how the son is resiting counselling. He insists that she stay in the room with him. The mother reported that she continued to see a counsellor approximately three weekly. She said that she was, “okay – get very scared of him, can’t talk to him, get nervous when see him.” She occasionally has flashbacks to the time when she was “held up by him.”
Dr R records:
“Her current application is for supervised day only then supervised overnight visits, with the supervisor signing an undertaking to always be there at the visit.”
Dr R saw the father on 1 June 2005 and 30 June 2006. There are some five pages of typed notes reporting on the interviews with the father.
In June 2005 Dr R reported as follows:
“[The father] presented as a determined, astute, weather beaten 47 year old man. He said his previous application had been for shared residency but now it was for contact, so he can spend “as much time as possible (with the children)…would like full custody”. He remained self contained and clearly determined to make a good impression. However at the end of the interview, after seeing the children, his anger was apparent as he gave vent to his frustrations with the lack of contact with them. With minimal control, he declared he had “proven” himself in the eight weeks since his release from prison – he had not contact the children.”
In the interview Dr R records the following:
‘He blushed as he admitted he had made [the son] wear soiled underpants tied on a piece of string around his neck. Saying “it was wrong”, he spoke of how he and [the mother] had been very frustrated with [the son’s] soiling “[the mother] would get cranky at him over it…did it to show him need to go to the toilet”.’
Further in the interview is recorded an assertion by the father that the mother agreed to this conduct. She then said it was, “not right” and he agreed to that and removed the underpants.
The father told Dr R that in September 2003 he had his first nervous breakdown when he was hospitalised for two weeks in Y Hospital:
‘While he had then thought of self harm and hurting [the mother], he declared he “would never do it”.’
The father spoke of a further admission in October 2003 to Q Hospital for six weeks. The father denied asking anyone to kill the mother during his more recent gaol term, “he explained that the man made this allegation at his bail hearing for “leverage” for himself and the matter was not prosecuted by police after it was investigated.”
Dr R reports:
“[The father] sees himself as a loving, caring father, honest, reliable, a hard worker. … He has been told he is a perfectionist but cannot see it himself as, to him, it’s just “doing the job properly.” He acknowledged being irritable if things went wrong but feels [the mother] is less tolerant of mess than him – the house was “always nice and clean”.”
The father spoke of his first depression as being in 1988 when a “job went bad”. He had taken medication for about a month on that occasion.
The father told Dr R that he now realised that he had been suffering from depression for most of his life.
In her report on page 13 when referring to the 2005 interviews Dr R includes the following paragraph:
“Feedback [Mr K], Intern psychotherapist, Dept. of Corrective Services – [The father] had asked him to call me, wanting to know how to get the children back. [The father] had been seeing him weekly, refused to see psychiatrists as they had previously been of no help to him and now had stated he was not returning to see Mr [K]. [The father] was said to have ongoing depression, with negative self evaluation, negative ideas of the future and “hates his job and living conditions”. Mr [K] stated [the father] would “not do anything to help himself” and impressed as an immature person.”
Dr R reports that in June 2006:
“[The father] presented as euthymic, with normally reactive affect, normal form and content (given the circumstances) in his thoughts and speech and appropriate appearance. He confirmed he has been well since his discharge from [U] Hospital on the 28/4/2006: …”
The father reported to Dr R that he has been seeing his treating doctor, Dr G monthly (as recommended by Dr G). The father explained to Dr R that he was living with friends who had a 13 and 11 year old child. The mother in the household was Ms F who had offered to supervise the contact.
One of the matters canvassed in the interview was the father’s application for a job at the children’s school. He conceded that he “would have said to them (the children) not to mention it to their mother at this stage” because he was not sure if he would get the job and, “[the mother] starts panicking … she’s done things to stop me getting close to the children.”
Dr R reports the father confirmed he told the children he had not wanted a visit to occur in a contact centre because he believed, “they should not be put through that … it’s for people who can’t be trusted with their children … who are rapists, child molesters, violent.” The father did not know why he could not be trusted with his children.
Under the heading “Summary of Discussion” Dr R reports as follows:
“The children have a strong connection to their father, as would be expected given his extensive involvement with them in their early years. They have undoubtedly been distressed throughout the years of the breakdown of their parents’ marriage, their father’s depression and hospitalisations, their mother’s traumatic experience, when she perceived her life was threatened by her ex-father, and their father’s imprisonments..”
Dr R in her report then deals with how the contact between the children broke down. In particular the mother referred to hearing from the contact centre supervisor of the father telling the children he wanted to die. Further, the father reported that he had shared his plans to work at the children’s school with them and asked them not to tell their mother.
Dr R further says:
“At interview he did not demonstrate any awareness of how he was undermining [the mother’s] parental authority and emotionally manipulating the children by his behaviour. The children have responded with some role reversal behaviour – they attempt to care for him by advocating for his wishes, wanting to make him happy (?keep him alive). Because of this parentification, their wishes for contact need to be viewed with caution.
[The son’s] history of aggressive conduct is a concern and reflects the parental discord, loss of his father and psychological upset in his mother, leaving her scared of his father. He is identified with his father, particularly around anger and it is important BOTH parents assist him to manage his anger, as well as model appropriate expression of their own anger (an emotion which often indicates vulnerability.”
In relation to the father Dr R says as follows:
“[The father] has a history of recurrent Major Depression, which predates the breakdown of his marriage (and probably contributed to it). From his behavioural changes after the children were born, the depression post separation and the failure to rehabilitate himself post release from prison (the latter despite adequate services being available to him), it would appear [the father] has significant difficulties functioning in an adult autonomous manner unless he is emotionally stabilised in a relationship which is meeting all his dependency needs. This impression is supported by the observations he would not help himself by several helping professionals who attempted to work with him; his comfort with being hospitalised and apparent well being since he was befriended by the family he currently lives with. Undoubtedly having his Major Depression adequately medically treated has helped but in [the father’s] functioning there is evidence of disordered personality traits whereby he gets his dependency needs met by inappropriate means. It is a concern that he has attempted to transfer his dependency to his children. He will be at high risk of further depression and possibly acting out (again) if a decision is made for no contact with them.
[The father] showed no insight into his disordered functioning, which is also evident in him not being able to give an accurate history of recent events – he denied being non compliant with medication, although this is documented in his clinical notes; he maintained he was not scheduled on 1 February nor was he a suicidal risk (neither of which is accurate according to his notes) and he explained as a “misunderstanding” that other patients on the […] Ward had twice told nurses about his suicidal ideation. [The father] telling fellow patients, not the staff (to whom he denied such thoughts) is another example of [the father] using vulnerable people in a self serving manner.
I have no doubt [the father] loves his children but is unable to put their needs ahead of his own. I do not consider him to be a suitable residential parent. If the family he resides with are deemed suitable, week-end contact every three weeks should commence in this household. More frequent and unsupervised contact needs to be predicated on him establishing a record of stable mental health and, more importantly, a stable home in an appropriate community setting, where he feels well supported.”
Dr R’s conclusions in respect of the mother are set out on page 18 of the report and I have read those conclusions.
An affidavit was filed by the Independent Children’s Lawyer on 7 July 2006. The affidavit was by Ms I, a supervisor from M Welfare Services. The report relates to supervised contact between the father and the children on 17 and 24 January 2006. In the affidavit there is some description of appropriate and inappropriate interaction between the children and their father. There is reference to the observation of the deponent of the farewell between the children and their father at the conclusion of the supervised contact. The father was tearful and this provoked the daughter in particular to be distressed.
The father gave oral evidence. He confirmed that he was still residing at

G. He confirmed that he had recently entered into a contract with Z Business. That contract was with a partner and the father had acquired a fifty percent share in the business. The business sells domestic services at a discount rate. In order to acquire the business the father had incurred a liability of $44,000 and had paid $34,000. The purchase price was provided from the sale of IAG shares from which he received $6,999. He also used $10,500 he received as long service leave and $10,000 which he borrowed against his visa card. He had savings of $3,500 which he contributed towards the purchase. At the time of giving his evidence he had not commenced to sell electricity.
The father said he was currently taking Effexor medication, 300 mls each morning. That medication was prescribed in the U Hospital by Dr G. He said he saw a Dr G about every six weeks.
The father said he had seen the son at contact last weekend on a Saturday between 12 and 2.00 pm. The son had complained to his father that his mother could not facilitate his trying out for a soccer side in the local zone as it was too far to travel.
The father was questioned by the Independent Children’s Lawyer.
The father said he had been seeing Dr G since September 2005.
The father agreed that he had contact with mental health workers about several weeks after separation from the mother. He agreed that contact was at Y and that he had suicidal thoughts. He agreed that on 10 September 2003 he was admitted to hospital and remained there until 19 September. He was then transferred to the A Hospital until 24 September. He conceded that on 19 September he was transferred to T after being scheduled. He was told that an anger management course would be helpful and he undertook that course. He undertook that course whilst he was in gaol. It was a three-hour session every day for a week or so. He felt that he learned something from that.
Between June 2005 and Christmas 2005 the father saw a second psychiatrist at S. He said he told Dr G that he had seen that psychiatrist.
The father admitted that he had a problem with gambling when he was playing poker machines and that was in about the year 2000. He said this problem existed for about six months. He would gamble every Friday night and he would spend $1,000 or more.
Between 6 November 2003 and 8 December 2003 the father was admitted to Q Hospital. He said he was suffering from depression.
The father spoke of his former relationship with most of his sisters and brothers. He said he had not spoken to any sister or brother for five years apart from Ms C and Ms B. He said that his sister Ms B had offered to supervise his time with his children. She last offered in May 2006.
Following the orders of June 2005 the father saw the children for eight visits over 16 weeks supervised by his sister. He saw them from 10.00 am to 2.30 pm. He was asked why that arrangement broke down. He replied, “We were supposed to do six weeks and then look at overnight. I was told I could move to overnight if [Ms C] was able to supervise. [Ms C] said that she could not be there one hundred percent of the time and the mother said without one hundred percent supervision she would not agree. We put up other supervisors but none were acceptable.” The father said that after he had asked for overnight contact and had disclosed that his sister Ms C could not supervise for one hundred percent of the time the mother said that he could not see the children after that time. Thereafter the father brought an action in the Court for unsupervised overnight time with the children.
The father said that he now lives alone. His co-tenants moved out about five months earlier and now live at G where they own and operate a shop. He said he sees them every second day. He confirmed that his former co-tenant Ms F was still prepared to supervise the time he could have with the children. The father said that the house occupied by him was furnished with sufficient furniture to house the children. He could also accommodate somebody staying overnight with the father and the children.
During 2006 the father said he had been in U Hospital on two occasions. On the first occasion he said he had been scheduled. The second occasion was between 23 February 2006 and 28 April 2006. The father conceded that in January 2006 he had told the Community Health Centre Officers that he had ceased taking his medication. He denied that he had ceased for a period of two weeks. He conceded that this was a time when he was seeing the children supervised by M Welfare Services.
The father denied that on 17 April 2006 whilst in U Hospital he told a patient that he had placed a plastic bag over his head at night. He further conceded that he probably told Dr G in June 2006 that Dr R was spreading rumours about him which were not true.
On 4 September 2006 orders were made allowing the father to send letters to the children. On 6 September 2006 he sent the first letter. The father said that he had sent earlier letters through solicitors. The father said that he spent two to three days writing the letters and then he asked Ms F to check them and make sure that they were appropriate.
The father agreed that in his letters he had said to the children he would like to have heard from the children on Father’s Day.
On 18 September 2006 the father sent a letter to the children. In that letter he conceded that he said, “Just a short note to let you know that I have been doing everything to see you …”
The father concedes that on 30 September 2006 he wrote to the children that he was not allowed to see them at Christmas time. The father was aware that the contact centre would be closed but he had asked for the mother to make other arrangements. He was then taken to a letter of 21 December 2006 requesting Christmas time with the children. He said that he had asked his solicitor two months prior to that to try and organise it and again two weeks prior to Christmas.
The father agreed he wrote to the children on 20 December and sent Christmas presents. He agreed that he had said to the daughter, “This is the third Christmas I have not been able to se you.” He further agreed he said to the son, “I am being stopped from seeing you.” He said he was trying to give the children the message that if he could be there to see them he would.
The father was asked what he would propose to do if he felt himself becoming ill again. He said he would see Dr G. He said that he is a good support. If the children were with him he would put them with his sister and contact the mother. He would get help for himself.
The father agreed that he had told the children he had applied for a job at their school. He said to them, “I think it might be best not saying anything to your mother until I have the job.” He said it was the end of 2005 that he applied for the job.
The father said that he thought it would be hard to move down the coast closer to where the mother lived. It had been suggested to him that he could live in N about an hour’s trip from where the mother lives.

The father said that he holds the view that the mother has shown symptoms of parental alienation syndrome and malicious parent’s syndrome.
The father was cross-examined by the mother’s counsel.
The father accepted that the mother was told by a policeman that a person had said in Court the father had asked him to kill the mother. He denied that he had ever said that.
The father was taken to the incident where he broke into the house. He said he had not slept for 30 hours. He said he had asked for money to be able to see the children and the mother had denied that. He claims she said, “Bad luck it’s not my problem.” At the time this occurred the father was off his medication. The father asserted that the last time he stopped taking his medication was in January 2006.
The father confirmed his allegation that the mother does not allow free and easy telephone contact between he and the children.
The father conceded that on Christmas Day 2005 he received a phone call from the children.
The father confirmed that when he was in Y Hospital in September 2003 he had told staff that he had a gambling problem with significant loss of money. He was asked what did he mean by significant? He replied $100,000 over a period of 18 months. Over 21 years I lost about $20,000. I won money before and after the period when I had a gambling problem. During the problem time he had lost about $1,000 per week over six months on poker machines.
The father conceded that at separation there was $15,000 in an account which he took. He said that he used it to pay rent and also to meet debts that the parties owed.
The father conceded that when proposing that Ms F should be the supervisor he did not tell the mother what Mr F’s problems were.
The father was asked about his assertion that he had carried out renovation on two properties. It was put to him that on occasions the mother had helped. He replied no. She helped for an hour or so to pull up some carpet. He asserted that he did all the work. He conceded that she might have helped in a minor way with the things she could do. He conceded that when he was working on renovations to the house the mother was doing housework. When the children were younger they were at day care so the father asserts that the mother was not spending all her time caring for the children. He conceded that in relation to the R property the mother may have helped with cleaning up.
It was put to the father that during the cohabitation the mother did the accounting books for his business. He replied no, however when GST came in he conceded she wrote up the books. He conceded that she helped him put together the documents that went to the accountant.
The mother gave oral evidence. She tendered as Exhibit M8 documents to support her claim of a debt for $30,500 to her father. I have been through exhibit M8. The marked documents in that exhibit (cheque butts, deposit slips etc) do not add up to $30,500. On my calculation they add up to $24,500 or thereabouts. In exhibit X1, a document prepared by the father’s counsel, it is noted that there is a liability for $30,000. It is noted that it falls into the category of “controversies”. No specific submission was made about this item however I understand from the document that the argument proffered is that the loan was made post separation for legal fees and general living expenses and therefore on the authority of Chorn and Hopkins it should not be added to the balance sheet.
I noted from the documents in exhibit M8 that almost all of the advance is said to be made for legal costs.
The mother conceded that the son had asked to try out for the zone soccer team. She said that she had told the son she could not afford the travel.
The mother said that both children play sports and quite often they are at different venues. Her father assists in taking one of the children to sport. During the summer the daughter does dancing and the son does tennis.
The mother was asked about the incident on 9 July 2004 when the father broke into her house. She was asked what she told the son about the incident. She confirmed that the son had not been at the house during the incident. She said she told the son that his father had broken into the house with a sledge hammer. She said that the son did not want to know too much about what had happened.
When the father was in gaol the mother said that the children had contact with their father by mail. They sent him a Father’s Day card. There were further letters from the father to the children in about December 2004. She said the children knew that their father was in gaol. They missed him. The daughter was having dreams.
The mother agreed that on 20 November 2004 a police officer told her about the threat that had been made to her life in Court. She said that the children did hear some of the conversation but in particular they would have heard their father’s name. She conceded that she was crying and shaking when she saw the children after meeting with the police officer. That night she stayed in a motel with her parents. On Monday she moved herself and the children from W. She told the children there was no longer any reason to stay in W. She said the children did not want to leave W with their friends and their schools. The mother said that the children have attended a number of schools. They included: B; W; D; W again; MN and then their current schools. She said that after the father was released from gaol in 2005 she told the children that he was out of gaol. At a later time the children asked to see him. They had asked to see their father before the interviews with Dr R. The first time they saw him after his release from gaol was when they saw him with Dr R.
On 15 June 2006 the son was violent to his mother arising from circumstances where she had terminated a telephone call between he and his father. In the month of June, the son had been aggressive to the daughter, coming up behind her and putting arms around her neck. The mother had told him not to do this. The next night he kicked her in the back and hit her on the wrists.
The mother said the next morning she and the daughter were in her bedroom. “I said I needed to talk to the police about [the son’s] behaviour. [The son] was in the kitchen and came down the hall with a knife in his hand. He said are you going to call the police? I said put the knife back.” The mother was very upset about the incident and grounded the son for one month. The mother felt that she should take the son to the police. She received a call from the Department of Community Services. The mother and her father decided to take the son to the police. They took him to see a constable at the police station. The policeman said to the son that he could see he was a young boy and that he needed to control his anger.
The mother was asked whether there were any other problems between she and the son. She said “he can come at me with his fists or at his sister with fists”. The last event was in December 2006. He repeated this action a week ago. The mother said the daughter is afraid of her brother when he is cranky. In the last two weeks the son had said to his mother, “If you hadn’t left dad I wouldn’t be like this.”
The mother explained that the son had been to counselling with her to see Mr S. She said he did not really open up about the breakdown of the relationship between the parents and he did not want to talk about the knife incident. The last occasion that the son had counselling was in October 2006.
The mother had spoken to the son’s school counsellor and Deputy Principal about his behaviour. The son’s anger problems at school appear to have ceased. Both children did well at school last year. The son started high school in 2006 and the mother says he loves it.
The mother said that after the father was released from gaol he commenced seeing the children unsupervised. She said that she was concerned about things the father was saying to the children. Some visits went well for the children.
The mother was asked what her expectation of supervision is and she said for the supervisor to be at the same place as the children and the father not necessarily in the same room all of the time.
The mother said that in October 2005 contact between the father and the children stopped because no undertaking was given by Ms C. She said she would have been agreeable to day contact continuing if that undertaking had been given. Thereafter there was no contact until December 2005. The Christmas contact in 2005 was very emotional and the children were upset because their father would not accept the chocolates they had given him.
The mother agreed that she had refused Mr P’s offer to supervise. She said because she understood it was for overnight contact.
The children have been having contact at N and the mother said that the contact supervisors were acceptable. The mother said she would be happy to do equal travel with the father to facilitate contacts. She suggested McDonalds at A.
The mother acknowledged that the children had told her they wanted shared care with their father. She agreed that they will be disappointed if they do not have week about with their father. The mother said that the daughter no longer has counselling and the son is seeing a new counsellor. The mother sees Ms U for counselling.
The mother was asked what she would need to see in order to agree to unsupervised contact. She said proper medical review of the father. I’d need to see that he was stable, happy and compliant with his medication. She would need to have a report from a supervisor who has viewed the father with the children and know that he was attending to all of the children’s needs with the help of the supervisor. She would also need to know that there had not been any inappropriate conversations. She agreed that it would be very helpful and beneficial for the family to be involved in family therapy.
The mother was asked what she had said to Mrs W in about August 2005. She said she told Mrs W that the father had broken into the house, that he had taken her into the bedroom, barricaded her in the bedroom and brought a knife to the room. She told her that she was ringing the father because she had not received an undertaking about supervision.
The mother conceded that following the release of the father from gaol the son had asked to see his father nearly every day. The mother said that the son had been to counselling for Victims of Crime. She said that was, “Because he has been abused.” In 2006 the son had been to counselling every three to four weeks. Between January and June 2006 the mother conceded that the son had been swearing at her. When at counselling she said that he told her he wanted to see his father.
When counselling concluded in October 2006 the son commenced to see his father again.
The mother conceded that in the first week of December 2005 the son wanted his father to attend a father and son event. She further conceded that on 1 December 2005 she applied for an AVO against the father. She said that she did this because she did not want the father to attend the father and son night. She said she was frightened of the father being in the vicinity of her home. She agreed that her proposal now was that there would be a changeover at McDonalds at A and that she would then come into contact with the father. She said that she did not feel frightened of the father as she had in December 2005.
The mother said that in the last week or so the son had displayed some unacceptable behaviour. He became upset, cranky and raised his fists at his sister. She said his behaviour is unacceptable on about a fortnightly basis.
The mother agreed that the children had not spoken to their father by telephone since February 2006.
The mother conceded that the father has only had 17 occasions for contact since 7 May 2004.
The mother agreed that in her affidavit she said that during the course of the time the parties lived in Sydney the father was unemployed for 23 months. She conceded that during that time he was renovating the house they owned and that he also had other jobs which brought in money.
The mother was asked about the funds she had borrowed from her father. She said that she had used the monies to pay lawyers and also to buy a car. Most of the money had gone to pay lawyers. She said about $2,000 was spend on general living expenses. She confirmed that she had borrowed $30,000. Of that sum, $3,000 had been provided for the W address.
The mother is currently driving the utility vehicle which the parties had at the time of separation. She said that she was told it was worth $4,500.
The mother was asked about the furniture in storage but said to her knowledge was not there anymore.
The mother conceded that the father received $60,000 in workers compensation from an injury which occurred before the marriage.
Dr G, the father’s psychiatrist, gave oral evidence in the case.
He first saw the father in September 2005.
Dr G provided a report dated 25 January 2007 which became Exhibit F2 in the proceedings. The following matters are of particular note in that report.
Dr G has seen the father on 16 occasions at the Mental Health Centre. He last saw him on 18 January 2007. He said:
“[The father] has experienced a protracted episode of major depression marked by intense agitation that has been recurrent at least since the breakdown of his family in July 2003. It is difficult to determine if he had experienced symptoms of a mood disorder prior to this.
…
On 6/9/05 [the father] presented as profoundly distressed and psychomotor retarded. He was wearing work clothes having come from his work as a storeman. He wept during the interview and, at times, appeared agitated. There was no evidence of psychotic phenomena. He spoke mostly about the end of the marriage and the perceived unfairness of the Family Law Court process. He denied being suicidal.
…
In early 2006 [the father] had 2 admissions to [U] Hospital. The first of these was a brief admission from 1/2/06 to 6/2/06. He then had an 8 week admission beginning 23/2/06.
With regard to the admission from 1/2/06 to 6/2/06 [the father] presented voluntarily to hospital aware that he was distressed and potentially at risk to himself. He had in the previous week received documents from the Family Law Court that had unsettled him and he had ceased the venlafaxine. He had subsequently deteriorated.
…
[The father] re-presented to [U] Hospital on 23/2/06. Over the preceding 2 weeks he had once again deteriorated. He had remained compliant with recommencing the venlafaxine. He was admitted to the mood disorders unit. During this admission he was given Electroconvulsive Therapy. He had improvement that has continued following discharge.
…
[The father’s] diagnosis remains Major Depression – now in remission.
His prognosis is excellent given his willingness to pursue treatment and be compliant with treatment that has been effective and led to remission. [the father] has constantly had insight into the need for treatment of his mental illness and has willingly engaged in treatment. Other positive prognostic indicators are his willingness to accept his life has changed and his achieving new goals such as making friends and obtaining appropriate accommodation. He also sees himself as capable of rejoining the work force and is making efforts in this direction. He is also re-engaging in sports activities.
…
The brief period of being made an involuntary patient for 4 days in early February 2006 simply reflects the seriousness of his symptoms at that time and the need to be cautious and make sure he was re engaged in treatment. The need for involuntary care was brief in what has been a long process during which [the father] has been insightful about his need for treatment and has accepted treatment.”
In his oral evidence Dr G said he will be having a continuing patient/doctor relationship with the father.
Dr G was asked if it was likely the father would suffer a relapse if he received an unfavourable result in the Family Court. Dr G said the risk is a lot less. It is less likely now that an adverse outcome would prompt a relapse.
Dr G said that he would provide the father with increasing support when the Family Court result was published.
Dr G said that if the father suffered from a disordered personality as referred to in Dr R’s report he would refer him on for psychotherapy in relation to that matter. He confirmed that if the Court ordered that the father see Dr G at monthly intervals he could accommodate that. He also confirmed that if the father gave an undertaking to authorise Dr G to notify the mother if the father became unwell he would do that and he felt comfortable about doing that. He confirmed that if the father stopped taking his medication it would take approximately four to six weeks before the father would be likely to become unwell again.
Dr G said that if the father was experiencing a crisis he could see him every two weeks for about four months. He could make a commitment to do that.
Dr G agreed that the father had been pre-occupied and hateful about the mother. He said that as far as the father was concerned the mother was preventing the children seeing him and also access to financial resources of the family.
It was suggested to Dr G that the father’s anger towards the mother had not abated. Dr G agreed that was the case and said that they had started to work on that. He said it was difficult to deal with this while the Family Court proceedings were still on foot. He said the anger is more to do with ongoing stressors which are fuelling his anger and he said he did not see that as part of the depressive illness. He said that if the father cannot resolve his anger towards the mother it could put him at risk of more frequent depression.
Dr R was required to give oral evidence.
Dr R was asked about “disorder personality traits” which she thought were present in the father. She said that the father elicits the children’s care of him. This is excessive. He fails to take any information which is not palatable to him such as the Apprehended Violence Order (don’t contact the ex-mother) especially when you’ve already been before the Court. She said the father was not learning from his experiences. Not wanting to talk about his problems or behaviour from the past.
Dr R said that while the father was well and has good support from Dr G and his family he will do the right thing with the children. Her only concern is if he is stewing about past injustices. In those circumstances she said she would have concerns he would not return the children.
Dr R suggested a regime of three weekly overnight Saturday mornings until Sunday. She suggested telephone contact at set times and for set times. She suggested that should be trialled for three months and if it was working satisfactorily then the time extend from Friday night until Sunday night. She said that there should then be a review to consider whether it is necessary to continue supervision.
Dr R was taken to a number of paragraphs and/or passages from letters which the father had written to the children. She had criticism of the father in relation to the wording.
Dr R said that in relation to the letters if the father did ask for advice from others then she is less concerned about the content. She did say, however, that people who have personality disorders turn to people who think the same way.
Dr R was asked what she meant by the words “a record of stable mental health.” She said that is really about the way the father is operating. If he is still railing against the Family Court or Dr R then it is a concern. However, if he is starting to work with the system rather than railing against it that would indicate stable mental health. If he is not decompensating with the hearing it is a good sign.
In relation to the contact between the children and their father Dr R said the children would not like the contact centre and neither will their father. So it is likely the son will be problematic. She was asked whether the children’s spending time in a family home but supervised might be a better option. She said that if the father can cope with that and not continue to blame the mother then the children will settle with it.

Dr R was asked about the mother’s attitude to the children spending time with their father. She said that if the time was supervised she wouldn’t be concerned about an adverse impact on the mother. She was concerned however about the mother’s reaction with the father turning up to the daughter’s concert. The mother had packed up and left home that night. Dr R said if the mother can’t prevent acting out she should get help. In relation to unsupervised time between the children with their father and the impact on the mother, Dr R said that she thought the mother would have greater difficulty with dealing with that as opposed to supervised time. She detailed some of the mother’s concerns.
Dr R was shown Exhibit ICL 8 which was a minute of proposed order produced by the Independent Children’s Lawyer on the last day of the trial. She said that she would support orders being made in accordance with that exhibit.
Dr R was cross-examined by the father’s counsel. Dr R said that the son not seeing his father is one of the matters which has given rise to the son’s conflicting relationship with his mother.
Dr R said she could not agree with fortnightly contact. If family therapy was in place then the children would see their father more than three weekly. Dr R thought every second weekend could be disruptive to the children and their sporting commitments. She would like to see if the father was able to spend time with the children without displaying his distress and dysfunction. She would like to see the impact on the son of spending time with his father.
Dr R was asked whether it would be helpful for the father to have some unsupervised contact before the parties again saw Dr R for review. She said not fortnightly but if there were safeguards in place and therapy going ahead she would not be so concerned about unsupervised time. Two visits between the children and their father with much looser supervision before they saw Dr R would be helpful.
In relation to the prospect of the mother being anxious during periods of contact between the children and their father Dr R suggested that perhaps telephone calls between the children and their mother during this time could alleviate some of her concern.
Mrs C, the father’s sister, gave evidence in the case. She said she sees the father about once a fortnight. She confirmed that the father had sent her copies of letters before he sent them to the children. She confirmed that she had seen one of the letters which were included in Exhibit ICL1. Mrs C said that when she was supervising the contact between the children and the father she never let them out of her sight. She did not hear the father say anything to the children which would upset or worry them. She did not hear the father ever talk about the mother. She confirmed that the father was teary at the commencement of the period of time when he had supervised contact with the children. As the time went on the father was less teary. Mrs C offered to supervise the contact for two days and otherwise be available from time to time if others become unavailable. She said that she was prepared to travel to N. She said that she was prepared to be involved in overnight stays provided they stay at her house. If she noticed some change in the father’s health she would call someone. She said that she would call the mother if she had her telephone number.
Mr P, a retired plumber and friend of the father (although well-known to the mother) gave evidence in the case. He said that he had seen the mother on one occasion since the separation and that occurred when the mother came to visit him. He thought this had occurred during 2006. He said that he would be prepared to supervise overnight contact between the father and the children at his place. He had plenty of beds. He said that he would be prepared to supervise for more than two nights however he thought it would be hard on his mother. He said that he would be happy to contact the mother if he noticed the father becoming unwell. He said that he felt he was still a good friend of the mother.
Ms F swore an affidavit on 31 July 2006 and also presented herself for oral evidence. She said she was prepared to supervise the children’s time with their father. She said she would stay at his house during the supervision. She was available to travel with him to collect the children. If the father became unwell she would call the mother if she had her telephone number. Ms F confirmed that the father had shown her a copy of the letters before they were sent to the children. She pointed out some things to him which she thought were inappropriate. She was shown Exhibit ICL1. She remembered reading some of the letters but not others.
Ms F said that as far as she is concerned the father has never had a bad word to say about the mother. He told her he had lost his mother after 21 years of marriage. She was asked whether the father had said that he believes that the mother suffers from malicious mother’s syndrome. Ms F said yes but I said to him I can’t have discussion about that because I don’t know the mother.
Ms F in her affidavit outlined the circumstances in which she came to meet the father. Ms F’s father was in hospital with the father in these proceedings. Ms F is well acquainted with mental illness as she has had to deal with her father’s mental illness for some time. She is aware of symptoms and behaviour which indicates that the father might be coming unwell.

The Issues

The issues in this case relate to the time the children can spend with their father. The father is seeking a residence order for the children. That is opposed by the mother and the Independent Children’s Lawyer.
The matter which prevents the father sharing more extensively in the children’s care is the state of his mental health. The issue for determination is whether the father’s health poses a danger to the children if his time with them is unsupervised.

Credit

There is no evidence in the case which leads me to the conclusion that any witness has been deliberately untruthful. I accept the evidence of the father’s witnesses Ms C, Ms F and Mr P.

The Mother

The mother gave her evidence in a straight forward and apparently honest manner. She made a number of appropriate concessions in favour of the father.

The Father

The father gave his evidence in an apparently straight forward manner. There was nothing about his demeanour or the content of his evidence which led me to conclude he was being dishonest. He made many admissions against interest and also made appropriate concessions in favour of the mother.

Relevant Law

Legal principles

The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… 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.”
Subsection (4) provides as follows:
“… 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.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Section 60CC Considerations

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

There is in this case an identified benefit which would flow to the children in the event of the father being able to participate more extensively in the children’s lives. This is something very much desired by the children who have been distressed by the lack of opportunity to spend time with their father. The ability for the children to benefit from their time with their father is very much governed by the state of his health. This has been referred to in these reasons and I will refer to it again in the conclusion and probably elsewhere.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no suggestion that the father has ever been violent to the children. He has however used force against the mother and the daughter was present at the time. This was the event which led to the father being sentenced to imprisonment for a lengthy period of time following the separation.
The Court expert Dr R has referred to the prospect of the children being endangered emotionally by the excesses of the father’s words to them when he is not functioning well because of his mental ill health. The children need to be protected from such an event and the orders I make in this case will be designed to build protection for the children at least during a trial period of time the children spend with their father.
Additional considerations
(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
Both children have expressed a view and wish to spend more time with their father. The son has been particularly pressing for this for some time. It seems apparent that the son blames his mother for preventing the time he would otherwise be able to spend with his father and these views appear to be fuelled by statements the father has made to the children.
The son is now 12 years of age and he is entitled to have his views considered and given substantial weight. He appears to be age appropriately mature and there is no suggestion from Dr R that the son’s views should be less valued than those of the average 12 year old.
The son has expressed wish to be able and spend very significant time with his father and possibly equal time with that he spends with his mother.
The daughter is 10 years of age. She has reached an age where her views and wishes need to be listened to by the Court and given real weight.
The daughter, like her brother wishes to spend significant time with her father and as much as equal shared time with the time she spends with her mother. She felt sad when she had to say goodbye to her father. The evidence establishes that the daughter has been very distressed at times of farewell from her father and this has been exacerbated by the father being unable to contain his own emotions at that time.
(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)
The evidence of the expert and the parties establish that the children have a close and dependant relationship with each of their parents. The evidence has established that the son has been in conflict with his mother from time to time and has been violent to his sister on occasions. On one occasion the son was brandishing a knife when speaking to his mother. The mother felt apprehensive and very concerned for the son at that time. The mother was so moved by the circumstances that she took the somewhat extreme step of taking the son to the police to report the incident. On that occasion the son was spoken to be a Police Officer and given a warning. The son was told that if similar behaviour came to the attention of the Police in the future then action would be taken.
The son has been violent to his mother. He has punched her and kicked her.
The son’s behaviour as directed towards his mother and sister appears to be directly connected to the anger he feels as a result of being separated from his father. The son has told his mother that it is her fault that his father has been ill. He seems to hold the view that the mother is responsible for limiting the time he spends with his father.
There was an incident where the mother terminated a telephone conversation which the son had been having with his father. The call had lasted for an hour and the mother had asked the son to terminate the call on a number of occasions during the event. The final step taken by the mother in terminating the call caused the son to become enraged. The action by the mother did not in my view show that the mother appreciates the need that the son had at the time for some form of relationship with his father. The children are clearly concerned about their father’s circumstances and seem to have taken on themselves the responsibility for his care. On the mother’s side she is concerned about the statements made by the father to the children which might interfere in their harmonious relationship with her. Clearly if the father inculcates in the son the view that his mother is creating or continuing the father’s misery because he is being separated from his children than it is likely to have some real impact on the son’s relationship with his mother.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In submissions the father’s counsel was critical of the mother for not doing enough to assist the children spending time with their father. This criticism included a complaint that the mother had been dismissive of potential supervisors which during the hearing she indicated would be acceptable. It was submitted that the mother owed a duty to the children to investigate the suitability of supervisors at the time they were suggested rather than waiting for the advent of a Court hearing to make up her mind. I think that criticism is well founded and establishes that the mother has not been as active as her children needed her to be in investigating these matters.
The father has been very critical of the mother. He holds the view that the mother suffers from “malicious mother syndrome”. I have no doubt that holding such a negative view of the mother would have made it impossible for him to promote a positive emotional environment directed towards the mother while the children are interacting with him. This view held by the father appears to contradict other views that he has to the effect that the mother was an excellent parent to the children until the separation. He described her as his best friend over a lengthy period of their association and marriage.
The children appear to harbour a view that the parents should re-commence residing together. This view I consider to reflect their own fantasies and needs rather than any acknowledgement that the parties relationship is harmonious when clearly it is not.
(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
The father’s application is for the children to reside with him. He may be prepared to share equal time with the mother however, she would need to live close to where he chooses to live. The mother is seeking the children continue to live with her and have periodic supervised time with their father. The children are prepared for an equal shared time living arrangement with their parents.
The change for the children of commencing to live with their father is that they will be separated from their mother for longer time than they have been for a number of years. They have experienced a shared living arrangement following the separation of their parents. This appears to have worked well for the children until their father became ill.
There is no doubt there would be an impact upon the children if they commenced to spend substantial periods of time living with their father. Provided their father remained well it appears the children are likely to benefit from spending additional time with him.
(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
This consideration poses a real problem in this case. The mother lives in the south coast area at an address which she has not provided to the father. She lives close to where her father lives. The father resides in Sydney and has recently commenced a new business which it seems will be concentrated on the Sydney region. For so long as the father requires supervision for his time with the children the distance between the parties residences will place a strain of travel on the supervisors and it appears realistic to predict that the supervisors will become disenchanted by the amount of travel involved to carry out the supervision.
The father had considered moving closer to the mother’s residence however, this would remove him from his significant supports which he requires to help him maintain his good health. He would also be expected to experience difficulty arranging supervisors form the area.
(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
It seems without question that the mother has the capacity to care for the children’s physical needs and the majority of their emotional needs. I have been critical of the mother for not being more proactive in relation to interviewing potential supervisors for the children’s time with their father. I re-iterate that criticism here.
The father has suffered from the considerable ill effects of his depressive illness and to that extent it has inhibited his ability/capacity to provide for the children’s physical and emotional needs. The evidence suggests that when he is well he will be able to provide for the children’s physical needs as he did when the parties practiced a shared care arrangement for the children following the separation.
The father’s ability to provide for the children’s emotional needs is affected by his insight into his illness and his ability to reflect upon the consequences for the children of statements he may make to them which cause them to blame their mother for their father’s circumstances. He also needs to be able to appreciate that his statements to the children have the effect of making them responsible for the father’s emotional well being rather than the reverse which is usually the hall mark of good parenting.
(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

The son is 12 years of age and is clearly at an age where his father’s influence will be very much valued by the son. This is a time when father and son can have a more mature relationship and for most male children is a very enjoyable part of their lives. The son is craving additional time with his father and to some level this must be reflective of an age appropriate need which he has.
The daughter and her father appear very close and affectionate to each other. Again the daughter is clearly missing the attention and affection of her father.
The children were used to seeing a great deal of their father as they grew up in the family unit. The father carried out renovations to properties of the parties and during that time was only doing part time work to sustain a reduced income. He was involved in the children’s day to day care prior to separation.
(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
This consideration does not apply to this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has displayed an appropriate attitude to the children for the main since the separation. I refer to the earlier criticism I have made of her in relation to her inactivity in seeking to implement for the children more time with their father. She has acted as a responsible parent in the face of very difficult and at times alarming circumstances. She has feared for her safety and that of the children and consequently has found it necessary to move residence. She is now living in circumstances where she is comfortable and feeling secure. The father’s health has improved over the last three years and she should be able to feel more secure as a bi-product of that improvement.
The father’s attitude to the children and responsibilities of parenthood has been impacted upon by his ill health. It is clear that at times since the separation the father has not acted as a responsible parent however, I am satisfied that at those times it was outside of his control as a result of his illness.
(j)any family violence involving the child or a member of the child’s family
In this case there is evidence of Family Violence involving the father with the mother. The incident involved the father breaking in the front door of the mother’s home and then remaining in the premises over night. The daughter was present at the time. The father was sentenced to a period of imprisonment for the offence.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
Exhibit ICL11 is a copy of a current AVO which was made 7^th April 2005 and is to continue from that date for five years. The protected person is the mother in these proceedings. The order was made by the District Court of NSW. The order prevents the father from approaching the mother’s residence or place of work. There are other restrictions and conditions.
(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
In this case the Court appointed expert Dr R is recommending an interim order to see whether it is possible for the father and the children to move to an unsupervised time. She proposes that a trial of third weekly time for the children with their father be instituted. This should initially be closely supervised and in the later stages of the trial discretion could be enabled to allow a relaxing of the close supervision.
(m)any other fact or circumstance that the court thinks is relevant
This is a case which involves one of the parents suffering from mental ill health. The Court has long accepted that parents with a mental ill health history can continue to expect that they will be permitted to be involved in the parenting of their children subject to adequate protection for the children and subject to it being otherwise in the children’s best interests.
It is historically true that this Court has made orders for parents who have a diagnosis of controlled mental ill health to participate in the care of their children. There are many examples where parents have been able to manage their conditions well and accept the ongoing supervision of their chosen medical practitioner. It is a feature of mental ill health that people who suffer in this way frequently find it difficult to comply with a medication regime for a variety of reasons. Many do not have insight into their conditions and the necessity for compliance with medication intake. Others develop this insight.
In this case the father is developing good insight into his illness. He appears to have an understanding of the necessity to take his medication in accord with his doctors instructions. This all bodes well for the future of the father and the children and their ability to share their lives in a meaningful way.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
There is evidence that the father has failed to avail himself of time with the children as provided for in orders of the court. That time was to be closely supervised at a contact centre and the father took the view that it would not be beneficial to the children or himself.
I have referred to the evidence of the mother not taking appropriate action for the benefit of the children in making arrangements with proposed supervisors to start time with the father where those supervisors were seen by her as appropriate.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that it is in the best interests of the children to spend time with their father. That time should be supervised by either Ms C, Ms F or Mr and Mrs P. The supervisor can also be any other person nominated by the father and approved by the mother.
There should be a trial period of supervision to test the father’s health and his ability to speak appropriately to the children. If that works satisfactorily for the children the Court should then consider extending the time the children spend with their father and also dispensing with the requirement for supervision.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case the nature of the relationship between the parents and the current state of the father’s health lead me to the conclusion that at this time it would not be practical nor in the children’s best interests to make an order for equal shared parental responsibility. The mother is still dealing with the events of the break-in to her premises by the father. She has received counselling in relation to the trauma she suffered on that occasion. She is still clearly apprehensive about the state of the father’s health although it is also clear that she benefits from the father’s improved mental health. The mother lives in what she regards as a sanctuary from the father and that provides her with a degree of security. That security may well dissolve if the parties were required to confer for the purpose of implementing an equal shared parental responsibility order.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
As I do not propose to make an order for equal shared parental responsibility I do not need to deal with this section further.

The Orders to be made:

The orders proposed by the Independent Children’s Lawyer were largely agreed to by the mother and not substantially opposed by the father through his counsel although I am clear the proposed orders are not those pursued by the father nor perhaps desired by the children. The orders do however, pave the way for a progression to a more extensive form of time the children can expect to spend with their father if his health continues to improve. The father also needs to show he can interact with the children without involving them further in the dispute between the parents. He will have to demonstrate that he can spend time with them and not enlist them in his cause by having them believe that the reason for the inability to spend more extensive time together is the fault of their mother. He also needs to demonstrate that he will not cause the children to feel responsible for his emotional state.

Update evidence since 29 May 2007

The time for the children to spend with their father under the orders of 29 May 2007 has been a failure for the children and the parents. Notwithstanding the orders made by the Court, the children have only had one weekend with their father and that was in July 2007. The father attempted to have the children stay with him again on a weekend in August 2007; however, he did not give the required notice to the mother under the orders and so, when the father and his supervisor arrived at the collection point to meet with the children at the appointed time, the mother and the children were not there.
In September 2007 the father travelled to the South Coast area where the mother lives and attended a soccer match in which the son was playing. There was an altercation between the father, the mother and the mother's father at the game. Police were involved. The father has either taken civil proceedings for assault against the mother or threatened to do so. The father told the mother he knew her residential address.
At Christmas time 2007 the father sent a letter to the children and a CD. The letter was a 'goodbye' letter and on any objective view suggested a permanent departure by the father from the children's lives. The CD, which I have listened to, was a compilation of songs with a message typed on the cover, 'For the Children'. Once again, this is in the nature of a final farewell. The words in the letter paint the father as a victim and suggest he has played no part in the circumstances which gave rise to the children not being able to spend time with him.
In his submissions to me, the father said he sent the letter because he was considering taking a job in Western Australia or overseas; in any event, in a location which was a long way from New South Wales, which would take him away from Sydney for a lengthy period of time. If that was the case, I can see no reason why the father could not have told the children that in the letter. In my opinion, it was a cruel, heartless and selfish action on the part of the father to send that letter to the children. He was, I am satisfied, deliberately attempting to emotionally manipulate the children to feel sorry for him. He was effectively putting on the children's shoulders responsibility for his emotional wellbeing. He was pointedly seeking to blame their mother for the fact that he was not seeing the children. Again, this was a mischievous and largely untrue statement which I am sure was designed to interfere in the relationships between the children and their mother. The interference does nothing more than to exacerbate the circumstances the children now find themselves in. Their mother has faced a difficult task of parenting the children alone whilst the father was in gaol. To cast obstacles in the road of a harmonious relationship between the children and their mother seems to illustrate the father has no ability to understand the impact upon the children's welfare of such circumstances.
Exhibit X12 in the proceedings is a report from Dr R dated 10 December 2007. That report had recommended the commencement of unsupervised time for the children with their father. Following the report being provided to the parties and to the Independent Children's Lawyer, further material was sent to Dr R. That material is recorded in the exhibits. It included the Christmas letter and CD. It included emails.
Dr R gave oral evidence on 22 May 2008. At the conclusion of her evidence, she no longer supported the recommendation made in her report. She said the additional material caused her to review her decision that the father’s mental health is stable. She was impressed with his mental health when she saw him for the preparation of the report. She was impressed that he had brought a baby turtle for the children to look at. The extra material sent to Dr R raised serious concerns for her. It illustrated the father had slipped back into blaming others, was frustrated and angry. Dr R was very concerned that the children not reject their mother for their father. She was concerned that if the children did not have an opportunity to observe and know their father, they may form an idealised vision of him which was a long way from reality. This could be a real problem, particularly for the son as he matured, becomes more assertive and wants more freedom. The mother's ability to contain him and set boundaries could give rise to the son voting with his feet. Dr R talked of the trauma to the children of the stop-start time with their father. There was further difficulty for the children if the acrimony evident in the father did not dissipate. If the father is denied time with the children then Dr R is concerned about his reaction. He might become unpredictable. She is concerned that the father might be making threats to harm himself or others. Of particular concern was a letter to the mother's solicitor suggesting he had knowledge of her personal life; that is, the life of the solicitor, and that solicitor's children.
Dr R told me she had some concerns for the physical safety of the children; however, her greater concern was for the possibility of psychological damage to the children of unsupervised time for them to spend with their father. If their father was to again become depressed and suicidal then Dr R would be concerned for the physical safety of the children.
Asked again about the amount of time the children could spend with their father, Dr R suggested “not too frequent and it should be only one occasion of overnight period per contact occasion.”
The mother's counsel asked Dr R about the impact upon the mother of continued unsupervised time for the children with their father. I accept that the mother would be highly anxious about unsupervised time for the children with their father.
The mother seeks that there be no order for the children to spend time with their father. The Independent Children's Lawyer supports that position.
The father seeks orders as contained in his email to the Independent Children's Lawyer dated 1 May 2008. In short, he seeks alternate weekends Friday through to Sunday evening, changeovers at A. He seeks half school holidays, phone contact, Father's Day, birthday and special occasions contact with the children.
The interim orders made on 23 May 2007 were very detailed. They provided for a build up to every third weekend from 6 p.m. Friday to 4 p.m. Sunday. The time was to be supervised. They provided for times and other conditions to be fulfilled by the father.

Should the children continue to see the father?

The report of Dr R dated 10 December 2007 and my earlier reasons set out compelling reasons for the children to spend time with their father. The children very much wish to spend time with their father. Dr R says both children show signs of increasing maturity since her last meeting with them. The son was, I think, quite confronting with his father when he reportedly asked his father "was it a lot of work to send down the names" of the supervisors for each occasion. He is also opting to remain living with his mother and spend alternate weekends with his father. The daughter said she wanted 50/50 time with each parent.
Dr R described the scene following the children separating from their father. It is clear to me they crave an ongoing relationship with their father. In the circumstances of this case it is remarkable to me that the children have not taken a very negative view of their father. It is a credit to the mother that she has been able to shield the children from the conflict that she has with the father. When the father is not depressed and has a stable life, both mentally and physically, then he has a great deal to offer his children. I am satisfied he loves his children. He is proud of them. The father's stability covers areas such as employment, friendships and accommodation. All those areas, when they are in good order, indicate that the father's mental health is also in good order.
The mother's wellbeing is also impacted upon by the father spending time with the children. She will have to transport the children to and from the meeting spot. She receives little, if any, financial support from the father. Coming into contact with the father is a potentially stressful experience for the mother. She must reasonably be expected to be concerned on each occasion about the father's state of mind. She would be expected to be apprehensive about the possibility of some extreme behaviour on the part of the father. As against that, she has until now supported the children spending time with their father in circumstances where many mothers would have given up supporting contact in the same circumstances a long time ago.
On balance it seems to me that provided the mother feels there are safeguards in place to protect the children, then her anxiety levels should be reasonable and therefore the children should be able to spend time with their father.
I conclude that it is in the best interests of the children that they do have an opportunity to spend time with their father.

In what circumstances should the children spend time with their father?

When I made the orders in May 2007 I had hoped that the father's mental health might have improved to a point where supervision would be no longer required by May 2008. Sadly that has not happened. From my view of the father, little has changed in his presentation before the Court during the 12 month period. Objectively there are indicators of the father's health improving. He no longer needs to attend frequently on Dr G. On 5 May 2008 I made the following notation:
I note Miss Clifford, the Independent Children's Lawyer, has been able to contact Dr [G] and Dr [G] was in a position to confirm the information provided by [the father] to me today namely, there is no arrangement in place that requires [the father] to have further appointments with Dr [G]. That [the father] is to have his prescription for Efexor monitored by a general practitioner and renewed by a general practitioner. Dr [G] understood that he saw [the father] either late last year or early this year on the last occasion, and to the best of his recollection Dr [G] provided a supply for six months scripts for Efexor.
I am told that between 5 May 2008 and 22 May 2008, the father attended again upon Dr G. There is no further report about this visit from Dr G. I form no adverse conclusion against the father about that fact.

It is clear that Dr R was impressed by what she saw as an improvement in the father's mental health and general stability when she saw him for the preparation of her latest report. It is equally obvious that Dr R was shocked by the additional material provided to her by the Independent Children's Lawyer between the date of her report and the date of her giving oral evidence before me on 22 May 2008.
The conclusion I must regretfully reach is that it is not possible to predict over a reasonable length of time how the father is likely to react or act in relation to the children. I also conclude that the father's capacity to comprehend the emotional impact upon the children of his actions and reactions, such as sending the Christmas farewell letters and the goodbye CD to the children, is very limited. The father’s continued portrayal of himself as a victim of an array of people and institutional actions shows no signs of abating. He was portraying himself in this manner prior to the orders in May 2007 and he is still portraying himself in this way in May 2008. The presentation must have the potential to worry and disturb the children. Dr R says the father's parenting style will be expected to be psychologically damaging to the children.
I conclude therefore for some time into the future the children's time with their father should be supervised. The father says that supervision is not possible for a variety of reasons. He says it is too demanding upon his supervisors. He also claims the mother interferes with the supervision by talking to them too frequently and thereby disturbing them. The father also provided a proof of evidence from one of his supervisors who had appeared in Court before me, Mr P, and another from Miss C who also gave evidence in the Court before me. Both blamed the mother for frustrating supervision of the father's time with the children. Both would not be available in the future. I do not accept that the father could not arrange a suitable supervisor for his time with the children if that was for one weekend in every four. The supervisor can be a person approved by the Court and/or the Independent Children's Lawyer and/or agreed to by the mother.

How long should supervision continue?

The son is 13 years and 3 months. The daughter is 11 years and 2 months. I think that by the time the son is 15 and a half years he will no longer require supervision. I think when the daughter is the same age she will no longer require supervision. By that age they should be able to see for themselves if the behaviour of their father is unusual, disturbing or different and in those circumstances be in a position to elect not to go with the father or be able to ring the mother to end the time with their father prematurely should that be necessary.
This matter of when supervision should cease was not the subject of evidence or submission before me and I would not therefore make a decision at this time to bind the parties so far into the future. I think that it is a matter that may have to be reviewed at a later time and therefore I will not make any order which dispenses with supervision when the children are 15 and a half. My thoughts on the matter expressed in these reasons may, however, be of some assistance to the parties in the future.
The evidence of the mother via the report of Dr R shows that the son’s behaviour towards his mother and his sister has improved significantly since the earlier reports. He has matured considerably. He now seems well settled and cooperative with his mother. The daughter seems also well settled with her mother in their new environment.
The findings I made when considering the provisions of s. 60CC in the May 2007 reasons are still applicable today except as to the areas that have been specifically mentioned in these reasons I am providing today. There is no need to say anything further on each of the subsections in s. 60CC.
I made final orders providing for the mother to have sole parental responsibility on 23 May 2007. It is therefore not necessary for me to revisit s. 61DA or s. 65DAA.

The form of the orders which should be made

Drawing together all of the evidence referred to in these reasons and in particular the evidence of Dr R it seems to me that the frequency of time the children should spend with their father should reasonably be one weekend in four. Again, the question of how many overnight periods should be involved in such time is raised by Dr R’s evidence. She said that there should be one overnight period. However, that has to be balanced against considerable geographical dislocation in this matter, and if it was only one weekend it may become almost impossible to perform and would involve the children in a considerable amount of travel over a very short period of time. It therefore seems to me that, notwithstanding the evidence of Dr R, there are other matters and facts in this case which would mitigate against one overnight period and in fact I propose to make an order for the weekend to commence at 6 p.m. on Friday and conclude at 4 p.m. on Sunday.
As I mentioned earlier, the orders need to be supervised; that is, the time that the father spends with the children should be supervised time. In the earlier orders the father had elected, and I had approved, four specified supervisors. I understand from the father’s evidence that some of those supervisors, if not all, are now unavailable to him. However, having approved them I will continue to include those supervisors in the range of supervisors and also give the father the opportunity to put up for consideration any other supervisors that he may be able to provide for the time to spend with the children.
It will be necessary for the parties to communicate for the purposes of putting these orders into effect and it seems that, in recent times at least, the parties have been communicating via the medium of email. In evidence before me are a number of emails which are between the children and their father and it seems that is probably the best form of notification and communication at this time between the father and the mother.
I propose to put in place orders very similar to those made in May last year about the requirement for notification. I propose to make an order that in the event of the father not being able to arrange to spend time with the children on a particular weekend as scheduled then he was to notify the mother. In fact the order is in the reverse; that is, it requires the father to confirm on the Thursday before (the day before the changeover time) that he will be there to collect the children.
The conditions that were put in place in the earlier orders in relation to the husband's health and similar conditions are to be continued.
The orders require the continuation for a period of time of the Independent Children's Lawyer and I propose to make an order extending the appointment of the Independent Children's Lawyer. I understand that in doing so, the Independent Children's Lawyer tells me that he is unable at this stage to advise whether or not the Commission would agree to his continued involvement. However, I do have confidence given the complexity in this case that the relevant person to consider this matter will find it appropriate to continue the appointment.
I propose to continue the arrangements for the children to communicate with their father by telephone. This is also an arrangement which broke down. It broke down because the father formed the opinion that there was potentially some recording of the telephone conversations between he and his children. I would hope that the father would take a different view of that matter in the future, and irrespective of whether the conversations were being recorded or otherwise ignore that and simply enjoy the time spent talking to his children. The telephone conversations between the children and the father should be monitored by the mother at least for some time until she is confident that the content of the conversations is appropriate and that they no longer need monitoring by herself.
This is a matter where I consider it would be of assistance to the children if I had an opportunity to meet with them in the near future to explain why it is that the Court is making the orders that it has made today. It seems to me that the orders being made today may well be outside the range of orders that the children had hoped might be made and they deserve an explanation from myself and I would like to have an opportunity to explain that to them. Accordingly, I have requested the Independent Children's Lawyer and the counsel for the mother to see what arrangements could be made. I do not want the children to be removed from their school for the purposes of this meeting but at some convenient time in the near future I would like an opportunity to meet with them.
For all those reasons I make orders which I publish now.

I certify that the preceding two hundred and sixty-three (263) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date: 18 August 2008

[2008] FamCA 694

27 May 2008

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