REYNOLDS & REYNOLDS

FEDERAL CIRCUIT COURT OF AUSTRALIA

REYNOLDS & REYNOLDS

[2014] FCCA 698

Catchwords:
FAMILY LAW – Family violence history considered – father’s time with children has been supervised for a long period – consideration of children’s age and views – assessment of risk to children if time with father is unsupervised.

Legislation:

Family Law Act 1975, ss.4AB, 61DA(2)

Applicant:

MR REYNOLDS

Respondent:

MS REYNOLDS

File Number:

PAC 4932 of 2010

Judgment of:

Judge Dunkley

Hearing dates:

20 and 21 February 2014

Date of Last Submission:

21 February 2014

Delivered at:

Parramatta

Delivered on:

22 April 2014

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Ms King

Solicitors for the Respondent:

King Legal

Counsel for the Independent Children's Lawyer:

Mr Schroder of Counsel

Solicitors for the Independent Children's Lawyer:

Legal Aid New South Wales

ORDERS

All prior parenting orders are discharged.
The mother shall have sole parental responsibility for the children X born (omitted) 2002 and Y born (omitted) 2004.
The children shall live with the mother.
The children shall spend time with the father:-
(a)Each alternate Sunday from 11am to 2pm; and
(b)At such other times as the parties agree.
The first occasion that the children spend time with the father shall commence on the Sunday immediately after the making of these Orders.
Unless the parties otherwise agree the mother shall deliver the children to the father at the beginning of each period outside the Post Office in the main street of (omitted) and the father shall return the children to the mother at the same location at the end of each period.
Nothing in these orders prevents the children spending some or all of the period of time that they spend with the father at his home after 1 August 2014, provided the father first gives notice of this to the mother by text message.
The father shall have telephone communication with the children each Wednesday when the father shall telephone either X or Y’s mobile telephone between 6pm and 7pm. The mother shall ensure that X and Y’s mobile telephones are switched on and charged during this period and shall ensure that X and Y are given privacy for the duration of the call.
In the event that the children’s mobile telephone numbers change, the mother shall notify the father of the change in telephone number within 48 hours of such a change occurring.
The mother shall ensure that she keeps the father informed of the following:
(a)The school that the children attend;
(b)Any extra-curricular activities that the children are involved in;
(c)Any counsellor, psychologist or psychiatrist that the children may see from time to time.
Each parent shall keep the other informed of their residential address and telephone contact number (both landline and mobile) and shall notify the other parent of any change to these details within 5 days of such a change occurring.
The mother shall notify the father by telephone as soon as is reasonably practicable of any medical emergency or hospitalisation involving either of the children.
Each parent is restrained from denigrating the other parent in the hearing or presence of the children and shall remove the children from the presence of hearing of persons who engage in such behaviour.
The mother shall direct and authorize each of the children’s school to provide to the father all such information about the child’s attendance, progress and reports as he may reasonably request and, further, the father shall be entitled to obtain photographs, newsletters and other information produced by the school, and, the father is entitled to attend any functions, concerts or carnivals conducted by the school to which parents are invited to attend.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4932 of 2010

MR REYNOLDS

Applicant

And

MS REYNOLDS

Respondent

REASONS FOR JUDGMENT

On 28 December 2009 Mr and Ms Reynolds separated. At the time of separation the parties had two children, X born (omitted) 2002 and Y born (omitted) 2004. The children left the family home with their mother and have lived with her ever since.
The mother through her Counsel’s Case Outline sought orders:-
1. That all previous orders be discharged.
2. That the children of the marriage, X born (omitted) 2002 and Y born (omitted) 2004, will live with the mother.
3. That the parties have equal shared parental responsibility for the care, welfare and development of the children;
4. That the father spend time with the children as follows:
a. At (omitted) Child & Family Centre, (omitted),every second Saturday for two (2) hours or as directed by the Contact Centre until Y attains the age of 12 years of age; and
b. Thereafter at McDonalds Family Restaurant, (omitted), every second Saturday for two (2) hours from 12pm until 2pm. Time with the children to be supervised by an agreed family friend.
5. To facilitate order 4 the mother will deliver the children at the commencement of the time that the father spend with the children and collect them at the conclusion of his time with them.
6. That the father continue to have telephone communication with the children each Monday, Wednesday and Friday evenings at 6.30pm, to be initiated by the father.
7. That the children be at liberty to communicate, whether by telephone or otherwise, with either parent in accordance with their wishes.
8. That neither party denigrate the other or members of the other’s family in the presence of the said children and shall use their best endeavours to ensure that no other person does so.
9. That each party has the sole responsibility for the day to day care, welfare and development of the children while the children are living with each of them.
10. That whilst the children are in their respective care, the parties shall advise each other as soon as reasonably practicable of any major medical issues including the child and each party shall keep the other properly informed of any required treatment or medication required in relation to the children and the parties shall ensure the proper administration of such medications and treatment is performed by them.
Notation:
A. That the time the father spends with the children be suspended in accordance with the children’s wishes.
The father filed an Initiating Application on 15 October 2010 seeking final parenting orders only in the following terms:-
1. That the two children of the marriage X born (omitted) 2002 and Y born (omitted) 2004, shall live with the wife who shall have the responsibility for making the non-major decisions about the day to day care, welfare and development of the said children.
2. That the parties shall have equal shared parental responsibility for making decisions about the major long term issues concerning the children including the children’s current and future education, their religious and cultural upbringing, health issues, their name and any changes to the prospective living arrangements of the children that make it significantly more difficult for them to spend time with either parent, and the parties shall consult with each other, either verbally or in writing, on these issues and shall make a genuine effort to come to a joint decision about them.
3. That all communications between the parties in relation to the said children shall be conducted in good faith, in a child focused and non-derogatory manner.
4. That the said children spend time with the husband defined as follows:-
a. Each alternate Saturday from 9.00am to 5.00pm, commencing Saturday 30 October 2010 for a period of four Saturdays;
b. Each alternate Sunday from 9.00am to 5.00pm commencing Sunday 7 November 2010 for a period of four Sundays;
c. Each alternate weekend from Friday 5.00pm to Sunday 6.00pm, commencing Friday 7 January 2010 [sic];
d. Each alternate Monday at 5.00pm to commencement of school on Wednesday commencing Monday 7 February 2011;
e. For Christmas in even numbered years commencing 2010 from 5.00pm Christmas Eve to 5.00pm Christmas Day;
f. For Christmas in odd numbered years commencing 2010 [sic] from 5.00pm Christmas Day to 5.00pm Boxing Day.
g. For Father’s Day each year from 9.00am to 6.00pm.
h. For the husband’s birthday and children’s birthdays each year for a period of 4 hours on each occasion at such times as agreed between the parties.
i. For Easter each year, commencing 2011, from 10.00am Good Friday to 6.00pm Easter Sunday;
j. That as from the conclusion of Term 1 in 2011, for the first half of each school vacation period commencing from the conclusion of the school day immediately prior to the commencement of the school vacation period.
5. That for the purpose of the child spending time with the husband in accordance with Order 4(a) and (b), such time shall be supervised by either the husband’s brother, Mr K, or the husband’s sister in law, Ms V.
6 (i) That for the purpose of the children spending time with the husband in accordance with order 4(a) and (b), the husband (together with the relevant supervisor) shall collect the children from the wife’s residence at the commencement of the visit and the husband (together with the relevant supervisor) shall return the children to the wife’s residence at the conclusion of the visit.
(ii) That for the purpose of the children spending time with the husband in accordance with Order 4(c) to 4(j) inclusive (other than 4(d)) the husband shall collect the children from the wife’s residence at the commencement of the visit and the husband shall return the children to the wife’s residence at the conclusion of the visit.
(iii) That for the purpose of the children spending time with the husband in accordance with order 4(d) herein, the husband shall collect the children from the wife’s residence at the commencement of the visit and the husband shall return the children to school on the Wednesday morning.
7. The time spent by the children with the husband in accordance with Orders 4(c) and 4(d) shall be suspended:
(i) During all school vacation periods excluding the December 2010 – January 2011 school vacation period;
(ii) On the Mother’s Day weekend each year.
8. That whilst the said children are in their respective care the wife and husband shall advise each other as soon as reasonably practicable of any major medical issues involving the said children and each party shall keep the other properly informed of any required treatment or medication in relation to the said children and the parties shall ensure that the proper administration of such treatment or medication is performed by them.
9. That the parties shall keep the other advised in writing of their current residential address and contact telephone number during all periods that the children spend time with them.
10. Pursuant to S65DA(2) of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are as set out in the Family Law Courts Fact Sheet Parenting Orders – obligations consequences and who can help and these particulars are included in these Orders.
The father at the start of the case abandoned the parenting orders as sought in his Initiating Application and orally sought orders for:
·    Equal shared parental responsibility
·    For the children to live with the mother
·    That the children spend time with the father each alternate Sunday from 8am to 6pm.
At the commencement of the final submissions, the Independent Children’s Lawyer handed to the Court a “Minute of Order proposed by the Independent Children’s Lawyer”[1]. That Minute sought orders as follows:
[1] Exhibit ‘E’
1. That the mother to have sole parental responsibility for the children of the marriage namely X born (omitted) 2002 and Y born (omitted) 2004;
2. That the children shall live with the mother;
3. That the children spend time with the father each alternate Sunday from 11am until 2pm, such time to take place in a public location in (omitted);
4. That the father have telephone communication with the children each Wednesday when the father shall telephone either X or Y’s mobile telephone between 6pm and 7pm. The mother shall ensure that X and Y’s mobile telephones are switched on and charged during this period and shall ensure that X and Y are given privacy for the duration of the call.
5. In the event that the children’s mobile telephone numbers change, the mother shall notify the father of the change in telephone number within 48 hours of such a change occurring.
6. The mother shall ensure that she keeps the father informed of the following:
(a) The school that the children attend;
(b) Any extra-curricular activities that the children are involved in;
(c) Any counsellor, psychologist or psychiatrist that the children may see from time to time.
7. Each parent shall keep the other informed of their residential address and telephone contact number (both landline and mobile) and shall notify the other parent of any change to these details within 7 days of such a change occurring.
8. The mother shall notify the father by telephone as soon as is reasonably practicable of any medical emergency or hospitalisation involving either of the children.
9. Each parent is restrained from denigrating the other parent in the hearing or presence of the children and shall not allow any other person to do so.
The father had filed an Amended Initiating Application on 16 February 2011 also seeking final property orders.
The Court made consent orders on 21 June 2011 which finalised property issues between the parties.
On 12 September 2011 a Family Report was ordered.
Ms L interviewed the parties and the children on 30 April 2012. Her report was dated 28 May 2012 and was released to the parties on 31 May 2012. That report became Exhibit ‘C’.
The case was subsequently listed for final hearing for two days commencing on 11 February 2013.
On 12 February 2013 the parties and the Independent Children’s Lawyer sought by consent orders for the father to have supervised time at the (omitted) Contact Centre in the ACT and that the father and children have family therapy with Ms E.
Ms E subsequently declined to provide family therapy because she had a conflict of interest from having previously counselled the children.
The Independent Children’s Lawyer then went to great lengths to find another therapist and sent to each party information and sought their consent to orders to have Ms C provide the therapy.[2]
[2] See Exhibit ‘B’
The father didn’t sign the documents nor did he discuss the proposal with the Independent Children’s Lawyer. He says frankly he has no excuse, he was just “slack”.
On 12 September 2013 an order was made for the parties and the children to attend upon a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference so as to ascertain updated evidence as to the children’s views and listing the case for final hearing for two days commencing 20 February 2014.
A “Limited Issues Report” was prepared by Ms J, Family Consultant, pursuant to the orders made 12 September 2013 and this report was released to the parties on 17 January 2014 (Exhibit ‘D’).
It was reported to Ms J that the mother went to a General Practitioner, Dr P and obtained a mental health plan for both X and Y and that she made a telephone call to Ms C but did nothing further.
As a result the parents did nothing to seek to repair relationships between the children and the father. This abrogation of their responsibilities as parents is worrying and does neither credit. It has also unnecessarily delayed the hearing of this case.
The mother alleges persistent controlling and coercive family violence being perpetrated on her during the relationship by the father.
The father admits some violence but not to the extent alleged by the mother, nor does he admit it was coercive controlling violence.
The violence he admits to is denigration of the mother and damage to property and personal affects. He denies physical violence.
He minimises the effect of the violence on the children by saying they were not present, although agreeing they were in the house at the time, on his evidence being in their bedroom asleep. He agrees he left it to the mother to explain to the children the damage to property that the violence caused.
Neither party filed any affidavits containing evidence about the supervised time the father has had at the (omitted) Centre. They each gave some oral evidence about the visits and the children’s response to the visits.
The Family Report writer made contact with the (omitted) Centre. On the available evidence the children seem to have responded favourably to their time with the father at the Centre.
In paragraph 40 of the Limited Issues Report (Exhibit ‘D’) the consultant says:
The children continue to express fear of their father. It is unclear whether this represents a realistic response to their experiences of Mr Reynolds’ behaviour or reflects an adverse view of Mr Reynolds as held by Mr Reynolds.
It was an agreed fact that the (omitted) Centre remains available to provide supervision services until the youngest child, in this case Y, turns 12. Y turns 12 in December 2016. By then X would be 14 years old.

Chronology

(omitted) 1970  Father born
(omitted) 1972  Mother born
1995/1998       Parties start to live together
(omitted) 2002  Parties marry
(omitted) 2002                        X born
(omitted) 2004                        Y born
28 December 2009  Parties separate. Children stay with mother, father spends no time with children
19 October 2010  Father files Initiating Application
23 November 2010  Interim orders:
·Children live with mother
·Father to spend supervised time with children

12 February 2013 Final hearing adjourned, interim orders made:
·Children live with mother
·Children spend supervised time with father
·Parties and children undertake family therapy with Ms E

20 – 21 February 2014 Final hearing

Issues

·    The extent, if any, of family violence.
·    The effect, if any, of any violence.
·    What type of order for parental responsibility is to be made.
·    What amount of time should the child spend with the father.
·    Should the time with the children spend with the father be supervised.

Evidence

The father

The father lives in (omitted).
He is on long term paid sick leave from his employment with (employer omitted).
He has been on paid sick leave for four years.
He anticipates a final operation this year with a six month recuperation period and then a return to work.
When he returns to work he expects to work from 7am to 5pm. He has each alternate Tuesday and Wednesday off and each alternate Saturday and Sunday off.
He lives in a one bedroom unit which he rents.
He owns a ute. It has three seats with seatbelts. He has a current drivers licence.
In his oral evidence he described his time with the children at (omitted) Centre as going “alright”. He described X as being “a bit standoffish… I talk to X fine but she won’t cuddle me anymore” he acknowledged this was the case notwithstanding he had been seeing the children at the Centre for two years.
When cross examined by the mother’s legal representative he said:
“I wasn’t violent with Ms Reynolds. I did lose my temper and get cranky”.
He admitted when angry damaging property. He initially admitted to pushing a computer keyboard or monitor into a wall.

He said he had completed an anger management course in which he learnt how to talk to the children and to be positive around them.
When questioned about arguments he had with the mother he said “they were at night when the children were in bed”. He did however acknowledge that when the children got up the next morning they would see the property damage and he was prepared to accept that that would worry or upset them.
He said he has not had any telephone communication with the children since September 2013. He said that he believed that the children had their own mobile telephone. He said that he was a “friend” of X on Facebook.
He described the options of family therapy as being too expensive for him. In answering questions put to him by Counsel for the Independent Children’s Lawyer he said “I have a genuine doubt that I am the father of X and Y”. He said he had never voiced that doubt to anyone before and has done nothing about attempting to prove paternity. He described himself as being “bonded” with the children, and wanting to spend time with them even if he is not their genetic father.
In answering questions put to him by Counsel for the Independent Children’s Lawyer he expanded on the damage he had caused to property to include having kicked holes in a wall and having pushed a wall mounted phone through the wall in addition to a computer keyboard/monitor.
He also conceded breaking a door to a bedroom, pushing chairs out of the way and smashing a plate.
He said that he has little communication with the mother. What little communication he has consists of her leaving messages for him at (omitted) Centre.
He produced a letter from (omitted) School which became Exhibit ‘A’ about the parenting and anger management courses he has undertaken.
He described playing sport and ballgames with Y at (omitted) Centre. He conceded that the other children at the Centre were a lot younger than Y and X.

The mother

The mother lives in (omitted). She is engaged in home duties on a fulltime basis. She owns the home that she and the children live in.
She says that she has her own fears about the father but did not think that he would intentionally harm X or Y physically or emotionally.
She said that after getting the report from Family Consultant Ms J recommending family therapy she didn’t do anything about it and “it slipped my mind”.
She described X as getting bored with her attendance at (omitted) Centre.
She said that X will commence High School in 2015.
She thought that Y would accept from her direction to spend time with his father. She also thought that with encouragement X might accept a direction from her to spend time with her father.

Ms L – Family Consultant

Ms L prepared a Family Report dated 28 May 2012. Her report became Exhibit ‘C’.
She was cross examined by Counsel for the Independent Children’s Lawyer and the mother’s legal representative. The father had no questions for her.
In answering a question about the impact of family violence on children she said:
Sometimes not having seen the violence is more powerful because the image of what has happened or may have happened can heighten children’s fear and trepidation.
She said:
Hearing only the victim’s version of violence might either heighten the impact of violence for the children or a victim might minimise the violence.
She described both children as talking about being anxious about meeting their father. She observed that they were initially fairly cautious and that Y engaged then fairly easily with his father, but X took more time to engage.
Ms L said that the children were wary of the father and had distrust of him.
Ms L said that if the children were to learn of Mr Reynolds’ doubts that he is their father this may cause them to doubt him further and might make them feel angry and sad.
She said it might raise more issues and questions for X than for Y because she is older. She said that in her opinion the supervision of a parent’s time with a child puts strain on the relationship and increases doubt and anxiety for children about them having that time together.
Ms L said a long unsupervised day may increase X’s anxiety. Ms L also wondered if the father would know what to do with the children for a 10 hour day.
She thought that a shorter period of lunch and an activity might be better for the children and tax less the father’s capabilities.

Ms J – Family Consultant

She prepared an updated limited issues report dated 17 January 2014.
Neither the Independent Children’s Lawyer, the mother’s legal representative nor the father wished to cross examine Ms J.
Her report was admitted into evidence and became Exhibit ‘D’.
In that Report she recorded that the father told her that there was no current communication between him and Ms Reynolds.
The father told Ms J he had not consumed alcohol in twelve months.
Ms J reported that the mother said there was no current communication between her and the father other than brief written correspondence relating to the children passed on through (omitted).
In paragraph 27 of her report Ms J recorded X as:
Ordering her preferences about spending time with her father as follows:-
a) To not see her father at all
b) To see her father at the (omitted) Contact Centre
c) To see her father at a public location, in (omitted) with someone supervising the visits
d) To see her father unsupervised at a public location in (omitted).
In paragraph 28 of her report Ms J records X’s view about continued visits at a contact centre as being:
“I don’t care, as I don’t like going there as I don’t like seeing Dad due to the things he did to us when we were younger.”
Ms J said that X said to her:
“I don’t want to see Dad unless I want to.”
In paragraph 30 of the report Ms J records:
“X said that if the Court said that she has to see her father, she would like to see him in a park, supervised by a family friend.”
She said that X also said if the friend was unavailable:
“That she would be happy to see her father unsupervised at the park.”
Paragraph 32 of the report contains a summary of what X reported to Ms J about the family violence she had witnessed being:
“That she witnessed her father throw a computer at her mother whilst she was in her mother’s arms. X also said that her father had hit her wrist with a spatula and threatened to throw her best friend’s mother down the stairs.”
In paragraph 33 of the her report Ms J recorded that Y ordered his preferences about spending time with his father as follows:-
a. To not see his father at all
b. To see his father at the (omitted) Contact Centre for half an hour every second weekend
c. To see his father for half an hour at a public location such as the Skate Park.
In paragraph 35 of her report Ms J records Y as preferring someone to be present if he was to spend time with the father outside of (omitted). She said Y said to her:
“He would prefer a Police Officer in casual clothes to supervise the visits.”
In paragraph 37 Ms J records:
In relation to the family violence issues, Y said that he did not want to see his father because he use to consume alcohol and then get angry. Y stated that he had witnessed his father yell at a friend and hit the fridge; and when he was three years old.
Ms J was of the view that given the children’s age the question of whether the mother supported the children spending time with the father is likely to be the driving fact in whether they continue to attend visits[3].
[3] Family Report Exhibit ‘D’ paragraph 45
Ms J’s recommendations are contained in paragraphs 48 to 51 of her report and are as follows:-
48. It is recommended that X and Y continue to spend time with Mr Reynolds at (omitted) Contact Centre at two hours per fortnight.
49. Should the children wish to spend more time with Mr Reynolds or time outside of (omitted), it is recommended that this occur at a local public venue. It is suggested that the initial visits, at least, are supervised by an agreed family friend.
50. It is recommended that, unless any issues arise at (omitted) in regards to the supervised visits, once Y is twelve years of age that, the children’s time with Mr Reynolds; occur at a local public venue.
51. It is recommended that the parents, with the assistance of the Independent Children’s Lawyer, continue to try and locate an appropriate family therapist.

Determination

Section 4AB defines family violence as:-
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) then provides examples of family violence.
This section of the Family Law Act became effective on 7 June 2012.
These proceedings were commenced by the filing of an Initiating Application on 15 October 2010.
The definition of Family Violence before 7 June 2012 was less expansive.
Under either definition the father’s admitted behaviour constituted family violence.
I accept Ms L’s view that by the father leaving it to the mother to explain the damage that had been caused is likely to have heightened for each of X and Y, their perception of the violence that they had not seen.
Each of X and Y describe to Ms J the father’s family violence. I am satisfied that they have a memory of this family violence that has not been inculcated in them by the mother. It is violence they have witnessed or it was arising from the mother’s explanation of the damage or violence.
By virtue of section 61DA(2) the presumption for equal shared parental responsibility does not apply because I am satisfied the father has engaged in family violence. The violence was long term. I am not satisfied it amounted to coercive controlling violence.
In any event the parents have no ability to communicate about the children. They both agree that they lack this ability.
Both parents have been equally at fault in not engaging with family therapy for the children.
This inability to communicate and an inability for them each to prioritise the needs of the children causes me to conclude that an order for sole parental responsibility in favour of the mother is the only viable option. The mother has now for a long period of time, on her own made decisions about the children.
The children will spend the majority of their time in her care. It is also for these additional reasons that she is to have sole parental responsibility for the children.
The mother concedes that the children should spend time with the father.
It is her preference that that time be supervised. She concedes that the father would not intentionally harm the children physically or emotionally.
It is the children’s preference for their time with the father to be supervised.
Each child however is willing to accept the possibility of unsupervised time provided it takes place for short periods in a public place.
X is already bored and disengaged when she attends at the (omitted) Centre.
There is a real possibility that by the time she commences High School she would become resistant to further attendance at that centre.
Y has a more engaged relationship with his father than does X. Y is happy to engage in activities with his father.
I consider a further two years of supervision of time to be unnecessary. The children don’t require the protection. The mother concedes this fact. Supervision likely increases their anxiety in Ms L’s view. Each child is prepared to consider short periods unsupervised with the father.
The parents lack the capacity to participate in making joint decisions about the children. Each parent when ordered to engage with family therapy did not do so.
The father has not for many years paid child support for the children.
If the children continue to spend supervised time with the father at the (omitted) Centre then that order can only continue for another two years. By then X is likely to be resistant to going.
The children’s relationship with their father is unlikely to be any better in two years’ time than it is now. It is unlikely that if the children continued at that centre for two years and then spend time with their father unsupervised that they would be anymore protected or less at risk than they currently are.
The children have a wariness of their father based on their experience of him. Despite that wariness they are prepared, reluctantly, to consider spending time with him.
I accept that the mother would encourage them to do so if the Court ordered it.
A change to unsupervised time at this time may slightly initially heighten the children’s weariness of the father. Continued supervision is also likely to cause them anxiety.
Both parties live in (omitted).
The children’s extra-curricular activities take place in (omitted).
There are a number of other activities that the children could engage with the father in (omitted) for example at a skate park or at movies or for lunch.
I agree with Ms L and find it is more likely that the father would have the capacity to meet the needs of the children for shorter periods rather than the longer periods he wants.
It is not possible to fully anticipate what effect there will be on the children of their learning that the father doubts he is their father.
I am satisfied that the father has some minimal learnings as a result of his attendance at anger management classes. He is better able, than he was before, to engage with the children positively.
Periods on his own with the children in (omitted) are not likely to cause him to become angry with them unless X was to challenge him about some issue. Even then if they period is short I think he will cope with such a challenge.
X is of an age where I would anticipate that if she felt threatened by the father as a result of some action on his behalf she would have no difficulty in conveying that information to her mother or other persons.
That X is willing to engage with the father through electronic social media is a positive sign about their respective capacity to communicate with each other. Y enjoys physical activities and games with his father.
Slightly longer periods unsupervised than the two hour periods that currently take place supervised are more likely rather than less likely to improve the children’s relationship with their father without exposing them to an unacceptable risk of being exposed to family violence.
It is for these reasons that short periods of unsupervised time each alternate weekend, contrary to the recommendations of Ms J are in the best interests of the children.

Are the Orders reasonably practicable?

Both parents live in (omitted).
The father has an appropriate vehicle with seatbelts and a driver’s licence.
The children’s extra-curricular activities are in (omitted).
The travel occasioned with spending time with their father would be of a short distance.
The children have lived in (omitted) for most of their life and are familiar with the town. Their school and friends are there.
This gives rise to the possibility of activity with their father in public being unremarkable and possible for them. Overtime they may be willing to visit the father’s home. Given the children’s preference for a public place the father is to give notice to the mother if he wants time to be at his home. Such time should not take place in the first three months of visits so as to give the children time to adjust to unsupervised visits.
Therefore I am satisfied that to spend unsupervised time with their father for short periods on an alternate weekends is a reasonably practicable order, provided it coincides with a weekend day when the father is not working.
Because the parties cannot communicate the making of a sole parental responsibility order recognises the limitation of the parties. Because the children will spend the majority of their time with their mother and because she is use to making decisions for them, the mother is to have that responsibility.
A sole parental responsibility order means that that order is also reasonably practicable.

I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate:

Date: 9 April 2014

[2014] FCCA 698

22 April 2014

Key Legal Topics

Areas of Law

Family Law