Robin and Tapp (No 2)

FAMILY COURT OF AUSTRALIA

ROBIN & TAPP (NO. 2)

[2008] FamCA 1265

FAMILY LAW – CHILDREN – With whom a child spends time – Child with special needs – Best interests

APPLICANT:

Mr Robin

RESPONDENT:

Ms Tapp

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLF

1781

2004

DATE DELIVERED:

18 December 2008

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

BENNETT J

HEARING DATE:

16, 17 and 18 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR G COMBES

SOLICITOR FOR THE APPLICANT:

Armstrong Collins & Delacy

COUNSEL FOR THE RESPONDENT:

MR S FOOKES

SOLICITOR FOR THE RESPONDENT:

Kelly & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

MS M VOHRA

Orders

IT IS ORDERED:

That all previous parenting orders, other than those made on 17 December 2008, be and are hereby discharged.
That the parties have equal shared parental responsibility for decisions regarding the education, health and name of the children of the relationship M born … August 1995 and S born … May 1997 and the mother have sole parental responsibility for all other decisions regarding the children.
That the children live with the mother.
That the mother do acts and things necessary to ensure that any letter, card or gift sent by the father to the children (or either of them) is delivered to the child to whom it is addressed, promptly upon receipt and unopened.
The mother forthwith keep the father informed of any medical or psychological treatment of the children (or either of them) and, without affecting the equivalent parental responsibility that the father has pursuant to paragraph 1 of this Order, the mother sign such any such authority as may be required to:-
a. facilitate the father to obtain information from any medical practitioner, psychologist or counsellor treating the children (or either of them) from time to time ; and
b.facilitate the father being provided with copies of all school reports, notices, school newsletters and any other communication from the children’s schools by those schools and at the father’s expense if any.
That if the mother proposes to relocate her own residence or the residence of the children (or either of them) outside the State of Victoria she provide written notice of the proposed relocation (including the address to which she or they are moving) to the father not less than sixty (60) days prior to the relocation.
That the independent children’s lawyer provide to the proper officer of the school to be attended by each child in 2009:-
a.a copy of this Order;
b. an explanation in writing that certain aspects the father’s parental responsibility pursuant to paragraph 1 of this Order, including but not limited to the responsibility to make decisions about the children’s education, is equivalent to that of the mother.
That for the avoidance of doubt the father be at liberty to attend and the mother do all acts and things necessary to facilitate the father’s attendance at:-
a. all medical appointments with specialists and at The Royal Children’s Hospital for the child S; and
b. parent/teacher interviews for the children (or either of them).
That the mother forthwith advise the father if either child is admitted to hospital including the name and address of the hospital, the reasons for admission and the name of any treating doctor known to her.
That the mother and father keep each other informed of their residential address, postal address, email address and telephone numbers (including landline and mobile as the case may be) and any change thereto within 24 hours of such change.
That I extend the period of time in which a notice of appeal may be filed in relation to this Order to thirty (30) days after I publish my reasons for decision.

BY CONSENT IT IS ORDERED:

If S’s current counsellor is of the view that either or both of the parents should participate in the counselling, then each parent shall do all acts and things necessary to enable such participation as is directed by the counsellor to occur and each parent be responsible for the reasonable costs of his/her participation.
That each parent be and is hereby restrained from causing, permitting or suffering any documentation relating to this proceeding (other than this Order) to be shown to the children (or either of them) and/or for any allegations in this proceeding to be discussed with or in the presence of the children (or either of them) or in circumstances where the substance of discussion will come to the attention of the children (or either of them).

IT IS FURTHER ORDERED:

That all extant applications be otherwise dismissed.
IT IS REQUESTED that Ms W, family consultant, explain the operation of this Order to the children in person and, for that purpose, the mother deliver the children to Child dispute Services on the 5^th Floor of this building at a time and date nominated by Ms W.
That the independent children’s lawyer provide a copy of my reasons for decision (when published) to any medical practitioner or counsellor or like professional who is treating the children (or either of them).
That pursuant to section 65L of the Family Law Act 1975 compliance with these orders be supervised, as far as practicable, for a period not exceeding 12 months by a family consultant nominated by the Manager, Child dispute Services, of this Registry of the Court and that such supervision be reportable in the event:-
a.      another application is filed pursuant to the Act; and
b.     the judicial officer before whom it is listed requests such a report; or
c.     the supervising family consultant consider it appropriate to prepare a report of his or her own volition.

IT IS DIRECTED:

That these proceedings be removed from the list of matters awaiting finalisation.

IT IS FURTHER ORDERED:

That pursuant to Sections 65DA(2) and 62B the particulars and 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 those particulars are included in these orders.
That the order requesting the appointment of an independent children’s lawyer be discharged with effect from thirty (30) days after I publish my reasons for decision.

IT IS CERTIFIED:

That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1781 OF 2004

MR ROBIN

Applicant

And

MS TAPP

Respondent

REASONS FOR JUDGMENT

The parents of M, born in August 1995 and S, born in May 1997, sought final parenting orders in relation to them. The matter proceeded before me in the less adversarial trial process in 2008 and final orders were pronounced on 18 December 2008 on the basis that my reasons would be published subsequently and pertain to all matters at the time of the final hearing. These are those reasons.

The issues and background

The father is a tradesman and the mother is a retail manager and parent. The parties never married. They commenced a relationship in 1990 although there is agreement that they started keeping company in late 1988 when the father was aged 16 and the mother was 15. The parties separated on 29 February 2003. The father, who has spent a good part of the children’s lives travelling to and working overseas, now resides in Australia and has re-partnered with Ms A. The mother has not re-partnered.
Both of the children are hostile to the father. The fact of the hostility is common ground, although the parents’ account of the reasons for such hostility differs.
M attends S College. The school report commends her for a ‘positive and productive’ semester noting that she has contributed positively to the development of class spirit. S is in Year 5 at N School. He suffers from cystic fibrosis. Notwithstanding the many hospitalizations in his short life, his behaviour at school was noted as excellent and his effort was considered to be very good. Both children are performing well academically and in their sporting activities. The family report writer, Ms W, notes in her report of 11 April 2008 that ‘surprisingly, despite the children’s presentation in regard to the issues surrounding the dispute with their father, the children continue to be progressing extremely well in all other aspects of their lives.’ It is a credit to the parents that both children are so highly functioning.
The children both live with the mother and maternal grandmother in a flat in north Melbourne. They left the former family home in a nearby suburb so that that property could be sold, the proceeds divided pursuant to a financial settlement entered into between the parents and the mother could purchase a new home. That plan had not been realized by the time of the final hearing, a matter I will address later.
S’s health requires daily management and constant monitoring. Cystic fibrosis is an inherited disease associated with maldigestion of food and recurrent chest infections leading to progressive lung disease. Fortunately, S has, according to the medical evidence of Professor R, a Respiratory Physician at the Royal Children’s Hospital, a case of mild severity although he notes that S has a long history of poor growth and poor weight gain. With even a mild case of cystic fibrosis, Professor R notes that S requires high quality nutrition with regular pancreatic enzyme replacement. He also requires regular chest physiotherapy, which the mother administers.
The impact of S’s illness on S and the whole family is manifest. He requires regular hospitalizations. Constant vigilance in regard to his lung function and nutritional status is undertaken by the mother. Amongst other things, that involves daily exercise routines and preparation of food for consumption by S only. For the mother, this involves many days of lost work to care for him, leading to irregular employment.
The father has periodically worked overseas during much of the children’s lives. He left for overseas not long after M was born and has returned there, working there for months at a time and then coming back to Australia, for lengthy periods of time. It is these absences which, combined with the burden of S’s illness on the family, has informed and then exacerbated the children’s hostility to their father.
A change in residence is not proposed by the father.[1] The applicant father proposes, in addition to retention of equal shared parental responsibility for both children, that he spends time with S for increasingly longer periods culminating ultimately in alternate weekends, 5 consecutive days in each school holiday and 10 consecutive days during the summer holidays. He also proposes the continuation of previous orders relating to S’s medical appointments, time in hospital and school events.
[1] The precise orders sought by the father are described in paragraph 47 of the father’s affidavit affirmed 24 November 2008.
With regard to M, the father proposes simply that she be requested and invited, but not required, to attend on each occasion that the father proposes he spend with S.
The mother filed an amended application for final orders on 2 December 2008 but at trial sought slightly different orders in her outline of case document.[2] She proposes the children continue to live with her and that both parents share parental responsibility for matters of education and health, but that she have sole parental responsibility for the children.
[2] Exhibit “M1” pp 12 and 13
The mother adopts the family report writer’s recommendations that the children spend no time with the father, or time as agreed between the parents. Ms W’s recommendations read[3]:-
[…] if there is any chance of relieving [S’s] extreme stress level, despite the tragic implications for his father, that:
·[the father], withdraws from litigating.
·[the father] and [the mother] endeavour to find a positive resolution to the problem of where the children live.
·[the father] maintains some correspondence with them in the hope that, with time, their views towards him will soften.
[3] Family Report dated 1 December 2008, page 9
The mother proposes that the father be able to obtain information from any treating medical practitioner regarding the children or either of them and that he be able to attend S’s medical appointments with specialists at the Royal Children’s Hospital and be advised of any of the children being admitted to hospital. The mother also proposes that he be provided with school newsletters, any other communication from the school provided to parents and copies of the children’s school reports as well as be at liberty to attend parent teacher interviews with the children.
The mother proposes that she would provide the children unopened any letter, card, gift or similar item from the father.

Financial Orders

At the beginning of the trial, counsel produced minutes of orders sought by consent regarding financial matters including financial support for the children and passport applications. I commend the parties for reaching agreement about these matters before the commencement of the trial. Those orders were made.
In mid 2008, a final alteration of property interests was effected by consent in the Supreme Court which provided for the mother to vacate the home and for the father to place the property on the market for sale by 23 August 2008 or such other date as agreed between the parties. A reserve price for auction was settled at $615,000 and the orders required that the property be offered for private sale.
Until the property is sold, the orders provide for the father to make all mortgage payments on the property, taxes and outgoings as they fall due. The father is also prohibited from further encumbering the property.
The terms of settlement from the sale of the property, once the costs of sale have been met, were to be divided with $40,150 to the mother and 55% of the balance then remaining plus 55% of the amount by which the mortgage exceeded $60,000 and 55% of any debit rate adjustments to the mother and the balance then remaining to the father.

The independent children’s lawyer

Pursuant to an order made on 12 December 2005, Ms Leah Billeam of Victoria Legal Aid was appointed as the independent children’s lawyer (ICL) for M and S within the meaning of Division 10 of Part VII of the Act. As such, her role is to form an independent view, based on available evidence, of what is in the children’s best interests and then act in these proceedings in what she believes to be their best interests.[4] She is not a legal representative retained by M and S and she is not bound by any instructions from them.[5] The role of the ICL is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The ICL is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings[6] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[7]
[4] s 68LA(2) Family Law Act 1975 (Cth).
[5] s 68LA(4) Family Law Act 1975 (Cth).
[6] s 68LA(5)(d) Family Law Act 1975 (Cth).
[7] s 68LA(5)(e) Family Law Act 1975 (Cth).
As directed, the ICL provided the parents with her preliminary recommendations for final orders. The final position of the ICL was that:-
1.That the parties have equal shared parental responsibility for decisions regarding the education and health of the children of the relationship [M] born […] August 1995 and [S] born […] May 1997.
2.The mother have sole parental responsibility for all other decisions regarding the children.
3.The children live with the mother.
4.The father spend time with the children as may be agreed between the parties from time to time.
5.The father communicate with the children by letter, card and gift and the mother forward all such communication unopened to the children forthwith upon receipt.
6.The mother
(a)keep the father forthwith informed of any treatment the children or either of them may be undergoing , and
(b)forthwith do all acts and things and sign any authorities as may be required to:
(i)allow the father to obtain information from any medical practitioner , psychologist or counselor treating the children or either of them from time to time ; and
(ii)ensure that the father is provided with copies of all school reports, notices, school newsletters and any other communication from the children’s schools by those schools and at the father’s expense if any.
7.The father be at liberty to attend:
(a)all medical appointments with specialists and at The Royal Children’s Hospital for the child [S]; and
(b)parent/teacher interviews for the children.
8.The mother forthwith advise the father if either child is admitted to hospital.
9.The Mother and Father keep each other informed of their residential address, postal address, email address and telephone numbers (including landline and mobile as the case may be) and any change thereto within 24 hours of such change.
a)If [S’s] current counsellor is of the view that either or both parents should participate in the counselling, then they shall participate as directed by the Counsellor, and each parent shall bear their cost of participating .
b)If any treating practitioner from time to time for either or both of the Children is of the view that either or both parent should participate in the treatment , then either or both, as the case may be, shall so participate, and each parent shall bear their share of the cost of participating.
10.Unless done so under the supervision of a counsellor, neither parent shall show to the Children or either of them any documentation relating to the Court proceedings , nor shall they discuss these proceedings with them, save to inform them that the proceedings have been finalized and the children shall spend time with their father as agreed between the parents.
11.Neither parent shall discuss these proceedings with third persons in the hearing or presence of the Children, nor permit a third person to disclose any documentation relating to these proceedings to the children or either of them.
12.That all extant applications for parenting orders be otherwise dismissed.
13.That the appointment of the Independent Children’s Lawyer be discharged.
NOTATIONS
If the Father enrols for, and meets the cost of the […] programme as scheduled by the [D Centre], he shall inform the Mother when he has done so and the Mother shall encourage the children or either of them, to attend that programme. The next session starts in February 2009 and the Information night is scheduled for January 29^th 2009.
The independent children’s lawyer prepared a through and helpful chronology of relevant events.
The children have been well served in this proceeding by the independent children’s lawyer and her counsel, Ms Vohra.

Evidence and standard of proof

The less adversarial trial provisions of Part VII Division 12A apply.
At the trial the applicant mother relied on her affidavit and financial statement both sworn 1 December 2008, the affidavit of Professor R sworn 5 December 2008 and the affidavit of Dr T sworn 11 November 2008.

Professor R was not required for cross examination. In addition to his affidavit, it was agreed that certain matters on which he expressed opinion to the ICL would be recorded as evidence in the proceedings. These matters were Dr R’s opinion that S’s physiotherapy does not have to be done at the same time each day and that stem cell research and, in particular, treatment with products from umbilical cord blood, hold no benefit for S. Exception was taken on behalf of the mother to a comment which she understood had been made by the ICL to the effect that S’s physiotherapy, for which the mother is responsible, could be ‘done by a monkey’. It was clarified that the comment was attributable to Professor R and not the ICL. Dr R’s other evidence was not challenged. The monkey comment was insensitive and it is most unfortunate that it was passed on. Dr T was not required for cross examination. Likewise, I accept his evidence as unchallenged.
At the trial the respondent relied on his affidavit affirmed 24 November 2008 and the affidavit of his partner, Ms A, sworn 16 November 2006.
The ICL relied on the report dated January 2006 of Mr P, psychologist, and the reports of Ms H, child worker, dated 24 February 2007 and 25 April 2007. It was agreed that a statutory declaration of Ms C made 3 November 2006 would be received into evidence.[8] None of those witnesses were required for cross examination. Their evidence was not challenged.
[8] Exhibit “ICL5”
The ICL had arranged the attendance of the maternal grandmother at court to give evidence if anyone required her to do so. This was in the absence of the mother calling her as part of her own case and notwithstanding that the mother’s evidence was that the maternal grandmother was an integral part of the children’s lives. The maternal grandmother did not give evidence.
As part of the preparation of this matter for trial, Ms W, family consultant, prepared a family report dated 16 July 2007, a children and parents issues assessment dated 11 April 2008 and a further family report dated 1 December 2008. Ms W was a witness of the Court. It will become apparent that I gave weight to Ms W’s assessments throughout the less adversarial trial process as well as at the final hearing.
In assessing the evidence, I apply the balance of probabilities as the standard of proof.
Where I make statements of fact, they constitute findings of fact.

Relevant history

The parties commenced living in the maternal mother’s home in about January 1991.
Sometime in 1992 the parties moved to Darwin together. After a brief period of separation in 1993 and 1994, M was born in August 1995. The father was then engaged to work overseas and subsequently left Australia on numerous occasions in the ensuing years. About halfway through 1996, when the father was working overseas, the mother’s second pregnancy was confirmed. It is the mother’s evidence that the father was overseas for six months of her pregnancy with S.
S was born in May 1997. Medical records, tendered by the mother, show that two days after S was born he was diagnosed with cystic fibrosis, admitted to the Royal Children’s Hospital and discharged almost one month later on 15 June, 1997. The parents were advised at this time that he would need to be re-hospitalized for regular ‘tune ups’.
Over the following month, S was hospitalized twice, spending two days in the Royal children’s Hospital on 10 July 1997 and then two days again on 20 July 1997.
Between 1999 and 2002, the parents holidayed together at various times in Bali and Thailand, leaving the children in the care of the maternal grandmother. In November 2002, the whole family holidayed together overseas. Over this period and until the parents separated, S was hospitalized several times. On three occasions, S was in hospital for over 12 days.
The parties separated on 29 February 2003.
When the parties separated, the mother applied for and was granted an intervention order at the Broadmeadows’ Magistrates Court. The father consented to that order without admissions. While still overseas, the father instituted proceedings in the Family Court, filing for interim and final orders seeking time with the children.
The father returned to Australia some time in July 2004 and, notwithstanding the scheduling of a case conference for 19 July 2004, discontinued the proceedings. He returned overseas until April 2006.
On 12 August 2005 the mother filed an application for final orders seeking shared long term responsibility and day to day responsibility, with contact between the father and the children to be by agreement. In response, the father sought specific time with the children and further time by agreement.
It is common ground that the father returned to Australia for brief periods and had contact with the children at these times. The father contends that he had weekly telephone contact with the children. The father also contends that the paternal grandmother and his sister maintained a relationship with the children during this period but that this relationship had broken down by the time he returned from overseas on or about June 2005, when he returned to Australia for about 9 weeks.
The father agreed that when he came home in June 2005, he had reached the end of a contract of employment overseas but had signed a further contract to go back. It is during this visit, in June 2005, that the father told the children that ‘mum got pregnant to somebody else and we’ve aborted the baby’. Cross examined, he said he also told the children that their mother had had an affair, by calling the children into the lounge room of the former family home and relaying this information to them. The father was not able to explain the reaction of the children. He states that he did not really think the children understood and that he left immediately afterwards. At the time, S was eight and M was nine years old. By way of justification, the father said ‘that I was just sick of the lies that were being told about me.’
In August 2005, the father threw M’s mobile telephone into the river. He said that she was using it inappropriately and he wanted to get her attention. The mother’s evidence was that the father told her that he it was ‘either the phone or [M]’ which he felt compelled to throw in the river.
On 13 September 2005 interim orders were made by consent before Registrar Sikiotis providing (in the language that was then applicable) for the mother and father to retain parental responsibility for the care, welfare and development of the children, and that the children reside with the mother who would have day to day parental responsibility. Orders also provided for the mother to have sole parental responsibility for the medical care of the children. The father in turn would have contact with the children, when he was in Victoria, provided he gave 40 days notice at times agreed by the parties, and at times not less that 3.00pm to 8.00pm on Christmas day 2005 and each Sunday thereafter during the Christmas school holidays. He was also to have contact not less that 3.00pm until 8.00pm on 28 December 2005 and each Wednesday thereafter for the Christmas school holidays, with telephone contact to occur from 6.00 pm to 8.00 pm each Sunday. Changeovers were to be at the mother’s house, although the parties agreed that they would have no contact with each other. Any injury or requirement for medical treatment would be communicated to the other party. Medication for the children would be provided prior to contact and returned with the children at the conclusion of the contact period.
On 6 November 2005 S was admitted to hospital for a ‘tune up’, which lasted 15 days.
On 11 November 2005 the father filed an interim application seeking time with the children over the summer vacation.
On 25 November 2005 S was hospitalized with a bowel obstruction for 11 days.
On 8 December 2005 the mother filed a response seeking that the father’s application be dismissed and that the Orders of the 13 September 2005 be suspended. She contended that the children did not want to have extended contact with the father; the father would not communicate his availability for contact; S was too sick for extended contact; and that the father does not demonstrate a child-focused attitude.
Prior to attending court, the parents commenced separate counselling with Ms O. Ms O was not called as a witness. This counselling was by all accounts not very effective. Both parties claimed the other had refused to attend.
On 12 December 2005 I made orders adjourning the matter to the duty list on 17 January 2006 and for an ICL to be appointed. The parties were required to attend upon Mr P, psychologist, for a psychological assessment. The orders regarding the father’s time with the children were varied to provide for the father to have contact with the children each Wednesday and Sunday from 3pm to 8pm at the residence of the mother; by telephone each Monday from 5.30pm to 6.00pm and otherwise as agreed. Contact on Christmas day was suspended with provision for make up time. All contact would occur with the parties undertaking to minimise their contact with the other and the mother undertaking to remain in a separate room from the father and the children. The father and the mother were to be the only adults in attendance during such periods. The orders provided for the contact to be undertaken at other places if the children so requested and the parties agreed.
On 22 December 2005 the parties and the children were seen by Mr P. Mr P spent time with each of the parents and then with both of the children in the company of the father on a single occasion.
The children did not see their father over Christmas, despite there being an agreement, and an expectation on the part of the children, that they would do so. The father’s account is that he went to a friend’s house located out of town. The mother’s belief, which was communicated to the children, was that the father’s unavailability to the children was because he spent Christmas with Ms A. Whatever the truth of the matter, the children had hoped to see their father at Christmas and were sorely disappointed.
In early January 2006, the report of Mr P was released. It is dated January 2006 and was allowed into evidence by consent. Mr P notes that the relationship between the parents formed when they were very young and that their paths have become increasingly divergent. Mr P observed that the mother was still grieving for the loss of her own relationship with the father which he described in the following terms:-
[The mother] however would like reconciliation and in part continues to struggle with a sense of loss and grieves a relationship that has in reality consumed the majority of her life, let alone her adult life.[9]
That observation accords with my own observations of the mother even years later during the lengthy less adversarial trial process. Mr P notes the mother’s singular responsibility for the children and more particularly, of the intimate care of S. In turn, Mr P assessed the father as yet to realise the full range of commitments that accompany the role of a parent, one of which is to understand the effect on children of regular absences from their lives. It is these absences and his unreliability in the eyes of the children that Mr P views as central to the children’s hostility.
[9] Report of Mr P dated January 2006, page 9
Mr P concludes[10]:-
[10] Report of Mr P dated January 2006, page 9
Even though ostensibly this matter relates to issues of contact, in a psychological sense, the processes within this family require significantly more sophisticated psychological appreciation. It is important to understand the interaction between predisposing, precipitating and perpetuating factors contributing to this dispute.
[…]
[The mother] is clearly more protective with [S], but the attitude of [the father] to [S’s] medical condition epitomizes at a process level what is fundamentally the point of conflict between them. [The father] is no doubt very committed to his son and his son’s welfare, but his perspective is that [S] should be given an opportunity to try different things, to live his life and to not be so protected in the way that he considers his mother to do. His wish to intervene in a constructive manner however becomes intensified given the intermittent nature of his involvement in his son’s life, and I suspect in relation to both children. [The father] seeks to regain ground and influence in the children’s lives in a short period when he is with them. [Page 10] He cannot understand why the children are reluctant to see him and it is easier for him to place responsibility for this upon presumed denigration of him by [the mother] without reflecting upon his own contribution and the children’s experience of his coming and going.
[…]
Nowhere is this more obvious than in the case of [M]. [M] clearly loves her father, yearns for time and a relationship with him, but the emotional risks to her are too great to attach to him because of the inevitable sense of loss that she will experience. She manages the situation by detachment, that is, she does not run the risk of loss by not emotionally investing. She then finds her father’s attempts to engage with her and adopt a more meaningful position as her father and a more meaningful role in her life as both a source of annoyance and intrusion, but also, in a psychological sense, it provides her, if she allows it, a tantalizing experience of how having her father actively involved in her life might be, with the inevitable expectation that this is not what will happen. The same is also true for [S], who however experiences this in a different manner, complaining more about the disruption and the uncertainty injected into his life by his father’s coming and going and in particular the disruption to the security of the home base for him. This is particularly pertinent issue for him, given the instability and the health issues.
The implication for both children is substantial. For [M], it is of concern that she has set down a pattern of detachment, that is, not taking the risk of emotional investment for fear of loss or abandonment, and this raises very significant concerns for her in her later life if this pattern is not attended to and addressed. For [S], he is wanting contact and time with his father, and it is certainly encouraging that he has ventured further and has had at least an experience of some individual time with his father in the absence of the mother, but this is a significant step for him, and one that needs to be progressed more slowly.
[…]
…[Page 11] I believe that most likely their reluctance and refusal to see him is a form of emotional self protection, that is, by not getting too close and not investing emotionally, is an attempt to minimize the loss, albeit that paradoxically, their efforts to do so further accentuates their fears and their feelings. Their anger at him, even though directed at these attempts to be more active a father in their life, is in fact a reflection of the sense of anger they feel at his impending departure.
[…]
I think it extremely unlikely that litigation or Court Orders will be of great assistance to this family, and what is needed more so is psychological intervention for both [the father] and [the mother] together, and for [the father] to gain some greater understanding about the impact of his coming and going in the life of his children, their anger about this, the resentment that they feel, in the context of the superficiality of their psychological defenses and the feelings of loss, sadness, and their needing him to be more involved in their lives. Both children apply the rigid psychological defense of denial as a way of coping with the grief of his departure, and the feelings of abandonment associated with his departure, as well as their anger at the perceived emotional rejection of them by his decision to reside elsewhere. In part, these are sentiments also felt by [the mother], both in relation to herself and to the children which must contribute to the dynamic.
(emphasis added)
And finally:-
This is a matter that requires ongoing psychological intervention and assistance to help with the process of re-attachment. The long-term implications for the children in my view greatly outweigh the importance attached to [the father’s] application for contact. It is of concern to me that a Court Order for contact which is not successful will act further in the long term detriment of the children and their welfare. A more collaborative and cooperative approach involving [the mother], [the father] and possibly the children around psychological intervention is in my view the more appropriate way to proceed.
This report was in the hands of both parties in January 2006. It was a prescient assessment. While much time has passed, the assessment of Mr P indicates that the children were already markedly hostile towards the father. The explanation for their hostility was spelt out in the report in terms which, if not clear to the father, must have been clear to those who advised him. The father was thus on notice that his regular trips overseas were impacting on his relationship with his children and most importantly, their relationship with him.
In January 2006, the father’s evidence is that the children knew he was coming back for good. S had been sick in November 2005, which is why the father said he had come home.
In April 2006, according to the mother the children viewed a documentary which made a connection between stem cell research and cystic fibrosis. During the course of this documentary, the children and perhaps the mother formed the view that this research offered some prospects of a cure for S’s illness. It is impossible to say how that view was formed and what the basis of it was save that the children’s life with the mother was dominated by the mother’s meticulous attention to S’s exercise, food and health generally. There was also no evidence to suggest that the mother tried to dissuade the children of the view that stem cells harvested from another child of the parents could cure S’s illness. In evidence was an email from M that was sent to the father, sent on 26 April 2006. It read:
Hi dad
You no how you always say I love you and you’d do anything for us? Ye well anywayz there is something u can do for the good of both me and [S]. On the news tonight there waz a break –through on cystic fibrosis If mum has a babay she can use blood from dat baby and give to [S] witch (sic) means he is pretty much cured from cf. But the only problem is she has to have the baby with you because it has to be the same blood as [S]. Of cource (sic) I asked mum and she said shed do anything for him as any parent would but the only problem is you. Its not like your normal parent. PLEASEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEEE DO THIS FOR THE LOVE OF YOUR SON!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! DO IT!!!! And it’s the good of me cosz I get to benifet wit a baby bro or sis!please do this. I no you don’t want to but think of the benifet for [S]. Your only son . [S] got all excited thinking he might have a chance of getting ofer his illness but you please do this pleaseeeeeeeeeeeeeeeeeee!!!!! IT’S A BIG BREAKTHROUGH U better do it or youll have lot of trouble getting me wrapped aoround your litt;le finger. and if your gonna do it for anyone its gotta b [S].
please do it for the love of your child
[M]
The mother’s account is that she and the children watched a program on television on the issue of stem cell research. After it, she says M suggested to the father that they could have another child to save the umbilical cord. She said that some months later she had attended a seminar on cystic fibrosis, the relevance of which was not explored. She agreed that she had never discussed the issue with Professor R, S’s treating consultant.

It is the father’s case that this matter has been raised again by the mother in the presence of the children. In his affidavit he said that whenever the mother raised it that he responded that he would be willing to consider it but would need to know a lot more about it before committing to it.
Cross examined, the father agreed that he did nothing to follow up the suggestion of a cure with Professor R when he returned from overseas, until he had been home for two and a half months. He agreed that the children had held, what turned out to be, an erroneous belief that there might be a possible cure and that he did nothing to progress the information that might confirm or deny the existence of such a cure.
Counsel for the ICL relied on an affidavit which had been sworn by a Ms C on 16 November 2006 confirming that she had witnessed the maternal grandmother speaking about a ‘possible cure’ in front of the children. An extract of that affidavit was tendered as Exhibit ‘ICL5’ and is reproduced below:
Whilst visiting [S] on 22 October 2006 I witnessed some inappropriate things being discussed in front of [S]. Firstly, [the maternal grandmother], had a very negative outlook in relation to [S’s] health. [The maternal grandmother] kept saying how sick [S] is and kept looking towards the worst-possible scenario regarding his physical condition. [The grandmother] said that she held [the father] responsible for the son's ill-health and his admittance into hospital as the result of [the father] putting [S] under stress by attempting to put the house that [the children] live in up for sale.
She continued to say that [S] does not deal with change very well. She cannot believe that [the father] would take the roof over the children's heads. [The grandmother] alleged that [the father] does not financially contribute to the children's financial welfare as he had not paid child support in two years. It was also discussed in front of [S] that it would be possible to save [S’s] life if [the father] were to conceive another child with [the mother] as they could use the umbilical cord to cure his disease.
It was said that [the father] had moved on and has a new family now, therefore he will not have another baby with [the mother], and consequently saving [S’s] life. [The grandmother] however continued to say that [S] really needs his father in his life right now but it's a shame he really hates his dad. [S] was unresponsive to myself and [the grandmother], and [the grandmother] said he doesn't trust you as he believes he will go back and tell his father anything he says. I walked out of the hospital room in dismay.
The affidavit does not elucidate upon who else was present. It is evidence which goes to the grandmother’s role in the family conflict and her inability to contain herself in front of the children and others. If this is representative of the maternal grandmother’s behaviour in a public and therapeutic environment, it is unlikely that she is more restrained in the children’s home environment. There was no evidence to suggest that this is not representative of the maternal grandmother’s attitudes to the father and the children. The mother did not seek to cross examine Ms C and nor was the maternal grandmother called to give evidence. I assume that the grandmother’s evidence would not have assisted the mother.
In response to being read Ms C’s affidavit, which had clearly been tendered in support of the father’s case, the father agreed that it would appear that from April 2006 until October 2006 the children believed there was a possible cure for S’s cystic fibrosis if he agreed to have another child with their mother for the purposes of retaining the cord for stem cell collection to assist in finding a cure for S.
Both parents were disregarding of the effect on the children on them believing that if the parents had a further child, S could be cured. They are equally culpable. The mother because she harboured a desire to reunite with the father and was prepared to allow the children to promote her cause. The father because he did not care enough to investigate the matter fully and engage with the children. The failure to deal directly with this false hope of a cure reflects poorly on the parenting of both parents. To allow the children to muddle along believing in the possibility of a cure which also attached to the children’s fantasy of reconciliation between their parents was imprudent and likely to contribute manifestly toward their hostility and anger, which they directed at their father.
It is in June 2006, about two months after the children had become aware of the possible cure for S’s condition, that the father says that his relationship with the children deteriorated. The father originally attributed this deterioration to the fact that he told the children about his new relationship with Ms A. He said that he had told them that he was seeing someone and ‘it wasn’t [J], it’s [Ms A].’ His account was that:
…when I told [S], he was on the way to his mate’s place, walking down the street. I just said to him, “I want to have a chat to you.” He started crying and continued on to his friend’s place. Then when I told [M], I was in the car when I told [M]. She started crying. Then I think when we got home, that’s when [M] told [the mother] that it’s not [J], its [Ms A]…’
Asked to explain further, the father said
“I just said to [S], I am seeing somebody. I have been seeing somebody and its not [J], it’s [Ms A]…. At first he wasn’t crying and he was in a bad mood and he wanted to go to his mate’s place. I just tried to give him a hug and, you know, I just tried to give him a high and he was crying and he wouldn’t let me. He wouldn’t let me hold him and give him a hug. We were down near [N’s] place and I just watched him walk there and cross the road to his mate’s place, and pretty much similar with [M].
The father says that when he told M about his relationship with Ms A, she went into the house and told her mother. The father, who was present at the time, said he could not remember her reaction exactly, but that he did not think the mother was very happy at the time. It is the father’s evidence that after June 2006, he was only seeing the children very spasmodically. On 13 June 2006, the medical records show that S was hospitalized for two weeks. In cross examination, the father agreed that his announcement of his relationship with Ms A might be interpreted by the children as him turning his back on a possible cure for S to be cured because he was now pursuing another relationship which obviated the possibility of both a reconciliation with their mother and a new baby. It is this conflation of circumstances for the children which explains the strength of their grief and reaction to the father’s announcement and provides further context for the deterioration of their relationship with him. The father agreed that it would have been a hard thing to tell S that no likely cure could be found but, by means of announcing his new relationship, he dashed simultaneously the children’s hopes for a cure for cystic fibrosis as well as a reconciled family and a happy mother. It was by even more callous disregard for the children that he did not bother to alert the mother that he would be telling them of his new relationship.
On 25 September 2006 Senior Registrar Fitzgibbon made orders by consent that the Orders made on 12 December 2005 be suspended, the ICL make applications for the parties to attend roundtable mediation provided by Victoria legal Aid and that the father spend such time with the children as follows:
a)By telephone each Monday and Friday at 6pm with the Father to telephone to the children and the Mother shall ensure that the children answer the telephone at these times.
b)From 5pm to 6.30pm commencing 4 October 2006 each Wednesday such time to occur at McDonalds at E and the father is to stay at that location during his time with the children.
c)That for the time with the Father in Order 4(b) (these orders) herein the mother shall deliver the children to McDonalds but shall not enter herself and the Father shall direct the children to return to the mother’s care at the end of the period of time together
The father’s time with the children at McDonalds was, even by the father’s account, not very good at all. They would not allow him to pay for them and he says, ‘always came with $20 in their pocket to buy food and, at one stage somebody called the police thinking that I was harassing two kids.’
On 16 October 2006 S was hospitalized for a ‘tune up’ for eight days. In cross-examination the father agreed that the children’s behaviour and reaction could be explained by more than the news he was going out with someone else. However, it reflects poorly on the communication between the parents that the father was unable to ask that the children not be provided with money so that he could provide for them at McDonalds. Providing the children with money meant that there could be no consequences for their poor behaviour, including missing out on McDonald’s food which, presumably, they liked.
On 31 October 2006 an incident took place on River involving an altercation between the mother, the children and the father and his new partner, Ms A. Both parents were cross-examined about this unfortunate incident. The evidence of Ms A was tendered to the court. This evidence was not contested by the mother. I accept that evidence as unchallenged.
The incident involved considerable verbal and physical abuse of Ms A and the father by the Mother and M. S joined in the verbal abuse of Ms A. Ms A sustained a bite to her right hand which she said was inflicted by the mother and which caused bleeding for which she sought medical attention. Ms A and the father attended the local Police station following the assault and made statements about the incident. An intervention order in favour of Ms A was subsequently obtained.
Charges were laid against the mother for assault. These were charges to which she later pleaded guilty and for which she was sentenced to a community based order. It is common ground that M tried to convince her father to drop the charges against the mother. His response was that the charges were being laid by Ms A and not him. He annexed a copy of his statement to the police to his trial affidavit. He maintained that, at the time of M’s request that he discontinue the criminal proceedings, he was unaware that the mother also faced charges in respect of an assault on him.
When cross-examined about whether he intervened to prevent Ms A from proceeding with the assault charges against the mother, he contended somewhat disingenuously that the charges were Ms A’s and not his. That was not correct.
On 13 November 2006 the parties attended a round table dispute resolution regarding the children. That process did not resolve the conflict and the parties came before Senior Registrar Fitzgibbon where orders were made by consent for the family to attend family counselling with Ms O or another counsellor recommended by Ms O of the Royal Children’s Hospital. Time to be spent with the father was specified and that time was to be supervised by Ms H, with the cost of that supervision to be borne by the father. Orders also provided for the father to visit S or either of the children if they were hospitalized and the usual non-denigration orders.
On 8 December 2006, the parties commenced counselling with Ms O and on 15 December, the children commenced counselling with Ms O.
The first supervision report was provided by Ms H on 24 February 2007. Ms H’s description of the children’s hostility to their father was poignant and, she says ‘abominable to say the least’. The behaviour had worsened during the beginning of the school holidays culminating in a flat refusal of the children to go to the father on 19 December 2006 wherein the school principal and the ICL were engaged to assist negotiations with the children, ultimately leading to S being the only child having contact with the father on that occasion.
Ms H reported that the mother begged M to go see her father as she adamantly refused at first. S ‘appeared a bit hesitant but took his clue (sic) from his sister.’ She cites examples of the children’s hostility including the children both spitting at the father (ostensibly at M’s suggestion); the children hitting the father with tennis racquets and both of the children (M first) sticking up her middle finger to her father. In her conclusion, Ms H states:
In my whole experience as a child protective worker and supervisor I have never seen an eleven year old girl with so much power over her mother and brother and so vicious in her behaviour and attitude toward her father, yet both children admit that they used to get on well with their father, especially [S].
Ms H concluded favourably in relation to the father’s patience and tolerance on the occasions when the children behaved so badly. She reports that notwithstanding a failure of three visits taking place over January and February 2007, the father maintained his consistency, showing up each time and attempting to engage the children in conversation.
The father says that the children did not spend time with him because the mother either refused or created obstacles.
In hindsight, Ms H’s observations should be viewed in light of Mr P’s assessment of the children’s methods of ‘emotional self protection.’
On 28 February 2007 this matter was listed before me for the first day of the less adversarial trial. I adjourned the matter and made procedural orders. I ordered a psychiatric assessment of each of the parties and amended the orders of Senior Registrar Fitzgibbon regarding hospital visits to require of the mother that she not be on the same floor of the hospital ward to which S is admitted during the father’s visits. I also made orders extending the time that S would spend with his father to an additional third hour to follow on immediately from the two hours that the children spend together with the father, while ordering that the mother collect M from that place while Ms H was to be advised of any specific nutritional and medical needs of S.
On this first day of the less adversarial trial, the father agreed to abide the unilateral decision of the mother to send M to S School in 2008 onwards and to pay for school fees, tuition expenses, books, stationery and uniforms. So as to promote some involvement by the father in M’s life at her new school, I also ordered that, until further order, the mother by herself her servants or agents be and is hereby restrained from purchasing or acquiring books or uniforms for the child M to use at S School or from discussing with M the fact that books or uniforms may come from any source other than the father. The intention, rehearsed with the parties, the ICL and the designated family consultant, was that M would be reliant upon the father for her new books and her first and only uniforms. The reference to alternative sources of the school uniforms was referrable to the mother having informed the court that another mother at S School had offered to sell her second hand uniforms but that the offer would not be open indefinitely.
It transpired that the mother proceeded to acquire S School uniforms and accoutrements and provide them to M. The father’s only involvement was that, after the purchases were completed, M asked him for money with which to reimburse the mother for her outlays. The mother’s actions, which undermined the order, was reminiscent of her providing the children with funds to buy their own food at McDonalds.
On 25 April 2007 Ms H provided an additional report of the supervised contact. She reports that there has been no improvement in the interaction between the father and the children during the last two months. Somewhat positively, she reported that M had complained to the mother, who had reported to Ms H, that she had been upset because the father had watched S doing sport but never M. Arguably, M’s expressed desire for more attention from the father could be seen as an improvement; more objectively, however, this was a case of such slim pickings for improvements that any outcome short of a disaster could be considered positive by someone who has become enmeshed in it. Ms H also cites a litany of interactions involving the children and the mother being rude to the father, and reports that the father continues to show a remarkable amount of patience.
The parents saw Dr K, psychiatrist who provided reports which were filed by the independent children’s lawyer on 7 May 2007.
Of the mother, Dr K provided a positive assessment of her parenting capabilities with a pessimistic view of how constructive counselling or therapy may be able to ameliorate the conflict between herself and the father. Dr K observed:-
She was a woman of rather tiny physique who very carefully looked after her appearance. Her make-up was very carefully applied, and her hair was very neatly styled. Her intelligence level was above average. Her mental faculties were reasonable. Her personality type was of the somewhat dependent personality type in close interpersonal relationships, but she appeared to be someone of very conscientious temperament. There was no disorder of perception. Her judgment seemed appropriate. There was some mild situational anxiety features related to Court hearings. Her behaviour showed a pleasant conscientious woman who was somewhat tense about the Court situation. There were no psychotic features. There were no delusions or hallucinations.
[…]
5.I gained the impression that she would have wanted the relationship with her former partner to continue, but felt he had a separate life apart from here.
6.There is no need to give a psychiatric prognosis with her as she does not have a psychiatric ill health condition.
7.Unfortunately it appears that there is now a bitter conflict between herself, and her ex-partner over all issues from the relationship. This can be only, in a sense, decided in a Court room situation by the totality of the evidence before the Court.
8.I am not optimistic that counselling will be of significant help in resolving the matters between them. It appears that she wants her ex-partner to have a sustained behaviour approach, which has not been effectively present, since his numerous trips [overseas]. Furthermore, he is now involved in another relationship.
Of the father, Dr K provided a positive assessment insofar as his general demeanour and likability is concerned but otherwise regarded his as a self-centred parent who represented no physical risk to the children’s wellbeing. Dr K observed:-
2.…[…] he appears to have to have a rather interesting attitude to family life. In himself he is a charming individual whom I can imagine has many friends, and is seen as a “hail fellow well met”. I gained the impression from his wife that he would seemingly help other people even though he did not do things at home.
3.His personality type, however, is that of someone who wants to live “two lives”. He wants to have a life following his interests [overseas], and with his friends and social activities here in Melbourne, and this caused conflict with the fact that he was probably not at home regularly in a sustained way.
4.To sum up, this is a very pleasant man who wants to lead however, more than one existence. He wants to be able to do what he wants to do with his overseas pursuits, and with friends, and as it seems, has come, and gone from family life with his partner, and two children.
5.I am not critical or judgmental of him from the point of view of his psychiatric development. It appears, however, that over the years he has had limited interest in any sustained ongoing family life. This is particularly to be considered within the context that one of his two children is handicapped, and that he has nevertheless felt it reasonable for himself to be overseas for noticeable periods of time on several occasions.
6.I gained the impression that what kept the partnership going for as long as it had was a strong sexual relationship. It would not surprise me if [the father] had strong sexual needs. It is likely however, that that will not in itself keep a couple together if they are on a divergent pathway.
7.I am sure to people who know him, he would appear to be a very pleasant, helpful individual with a considerable degree of personal charm.
8.As he has no specific psychiatric ill health condition, no psychiatric treatment is indicated for him.
9.Given my views about him wanting to lead more than one lifestyle, I do not favour the view that he should be basic carer of his children. I would have thought, that he was perfectly capable of having unsupervised access if that was to be accepted by the Court given the totality of the evidence. Whether or not his children want to see him, probably because of their frequent disappointments, is another matter, and clearly the children’s wishes, and the overall evidence before the court will be decisive. However, I do not feel he is a danger to the children, but no doubt his being away over the years has significantly disappointed them.

On 9 May 2007 orders were made by consent providing for the family to be assessed by the designated family consultant, Ms W. The family was also to engage with Ms O, the father and the children to engage in joint counselling and, ultimately, the children spend time with the father as recommended by Ms O. The question of supervision was left in the hands of Ms O. It was further ordered that changeovers would occur at a contact centre, with the cost of the time at the contact centre to be paid by the father. Provision was also made for the children to be enrolled in a program called “Our Kids” with Centacare. The father was at liberty to visit Ss in hospital and attend sporting events. Orders by consent were made in relation to child support arrangements.
Ms W’s family report was released on 16 July 2007. Like Mr P, Ms W described the concerning level of anger and disappointment the mother still holds some three years post separation. When asked by Ms W about the impact of the mother’s attitude on the children, Ms W reported that the mother denied that she was negative to them about their father and stated that ‘I defend [the father] often. They say I hate him and how can I stick up for him, there is still a difference between hate and disappointment. It’s all the broken promises.’ However, Ms W reported that it was evident that the mother’s attitude had a huge impact on the children. She noted that :
It is the assessment of this family consultant that, whilst [the father] may have at times behaved in a manner that in some ways contributed to the children’s disappointment of him, the attitude that the children have goes far beyond the norm and that these children are unhealthily aligned with their mother at present.
Whilst fortunately in most other respects, the children present as quite well rounded individuals, if they continue to develop in this manner there is a real danger they will have difficulties in forming trusting long-term relationships in the future and that their view of men in particular will remain distorted. For these reasons and given the reality that [the father] does indeed genuinely care for and is committed to having a relationship with his children, it would seem in their best interests at this point not to abandon the possibility of restoring, what evidence suggests to have been the positive relationship between them and [the father], that they had when they were younger.
Throughout July 2007 arrangements were made for the children spend time with the father as part of a Centacare program. Orders were made by consent on 2 August 2007 which allowed for the continuation of the Centacare program; separate times for the children to spend with the father; and that the father be at liberty to visit S in hospital.
On 3 August 2007 the mother pleaded guilty to recklessly causing injury to Ms A and unlawful assault on the father. She was sentenced to a community based order for 12 months – with a condition that she continue counselling at Centacare.
Around this time, S began to experience symptoms which were later diagnosed as cystic fibrosis arthritis and occurred every 4 to 6 weeks. A report from the Royal Children’s Hospital dated 10 August describes S as having these episodes commencing 12 months ago (August 2007), where he would have pain and some swelling over a couple of days with morning stiffness. According to the report, S would try to maintain his normal activities and importantly, once settled, was able to return to a fairly intensive sporting profile.
On 14 January 2008 I ordered that the defended hearing date for 14 January 2008 be vacated in response to a joint application by the parties for that adjournment until the end of the first school term to enable them to complete the Smart Moves course at Centacare.
On 18 March 2008 I adjourned the matter until 14 April 2008 for final determination and requested that an updated family report be prepared by Ms W to assess whether the children should spend any time with the father. A further hearing was scheduled for telephone mention on 31 March 2008 to ascertain readiness for trial and to hear any objections from the parties regarding a direction that Ms W discuss with each of the children (at her discretion) the mother’s criminal convictions.
Ms W met with both parties and the children. The children were interviewed separately and together and the parents were seen separately and together. The report states that while the mother agreed to the children being informed about her conviction for the assault against the father and his partner, she disputed the appropriateness of this happening because of the likely impact on both children, particularly M. The mother felt that M would blame herself. Indeed this was what occurred, according to Ms W. When advised of the outcome of the criminal proceedings, M expressed a view that her mother was wrongly convicted of the assault of her father because she was protecting her (M) from prosecution. Ms W reported that M said she initiated the assault of her father and his partner and that her actions and those of her mother were justified, if inappropriate, and that her father was wrong to allow the matter to go to court.
Ms W reported that both of the children were extremely hostile to the father, M more so than S. Notwithstanding the level of hostility they demonstrated toward the father, Ms W noted that M indicated that she was not happy about what she considered to be his favouritism toward W and stated that she felt that it was wrong that the father asked for time alone with him.
Ms W reported that the mother said that there had been considerable improvement in the situation regarding the children’s contact with their father (despite the river incident) but that she continued to see the children’s behaviour with, and attitude to, their father as justifiable. It seemed to Ms W that the mother’s intractable position was matched by that of the father, who remained determined to pursue his relationship with his children in the face of the continuing and extreme difficulties this entails. I agree.
It was Ms W’s view that the use of the court system to enforce relationships was more likely to aggravate rather than assist the situation. She reported that the children resent having to repeatedly attend Court and the strain caused to the mother. They will continue to blame their father for this; whether the blame is warranted is not relevant to them. To attempt to foster a parental relationship in these circumstances, in Ms W’s written opinion, was virtually impossible. However, Ms W’s oral evidence on 14 April 2008, once presented with an agreement between the parties as yet a further attempt to reconcile the children with the father, was that it was a reasonable interim outcome and worth a try. I accepted her evidence.
On 14 April 2008 I made further interim orders by consent which provided for an increase in the time the children would spend with the father, allowing for a progression of time on alternate weekends for the father to see the children. Further it was ordered that the children spend time with their father for a period each Wednesday during school terms until 7pm and during the school term holidays and on the implementation of daylight savings in Melbourne until 8pm. Further orders provided for time during school vacation, father’s day and other special days. A notation to the orders provided for the father to endeavour to obtain tickets for him and both children to attend AFL games on 25 April 2008 and 13 June 2008 and for S to attend AFL football games on 19 July 2008 and 2 August 2008.
On 25 May 2008 the father told the children by email that he was going on a holiday overseas from 27 May until 5 July 2008. It is his evidence that he had intended to tell the children together, but advised them by email as he did not see them on either 11 May 2008 or 25 May 2008 so was unable to do it in person. He denied having any understanding or concern that the disruption was going to adversely affect the progression of his time with the children. I accept that is so but the father’s candid admission pegs his parenting capacity very low. He said that he could not obtain tickets for the Anzac Day football match and when pressed agreed that he also missed the games on 13 and 19 July. His email, dated 25 May 2008 sent at 20:42 tendered by the ICL read as follows:
To [M] & [S]
Im sending you this email because I haven’t been able to have you both together & speak to you together at the same time. I had asked to have you both today as some make up time from mothers day, but that didn’t happen. I don’t know how else I can get this message to you . From this Friday I am going away on a holiday 7 I won,t (sic) be back until 5^th of July . If you both want to come let me know because that would be fantastic . either way the weekend of the 5^th is a weekend that we get to see each other so I will be very much looking forward to seeing you both then. [S] I hope you are felling (sic) better , I will see you Wednesday mate . [M] I hope your feeling better as well . Love you both very much
Lots of love
Dad xoxox
The father deposed to knowing for approximately six months that he was likely to be going overseas for his brother’s fortieth birthday. While he concedes he was not certain that he was going, the fact that he invited the children to go with him some two days before he left was both disingenuous and further served to sabotage his relationship with the children. Given that he deposes to his mother funding his airfare, there would appear to have been no real prospect of the children ever seriously being invited to go with him, both on practical and financial grounds. Moreover, one of the matters before the court at trial was an application for a passport. It is unlikely that the children had the necessary documents to travel or that either the father or the children could be confident in the father’s ability to minister to all of S’s needs, including provision of a very special diet whilst on route to and in a foreign country. The offer cannot have been genuinely made. It was made by email. It was made two days before his own departure. Probably most hurtfully, it was made without regard for the time he had successfully proposed and been granted only one month prior (without disclosing to the court his intention to travel) where he would be taking the children to the football.
On 2 June 2008 final property orders were made in the Supreme Court. These orders provided, among other things, for the mother and the children to vacate the family home so that the property could be prepared for sale. Those orders provided for the sale of the property to occur on 2 July with the auction to be conducted in August 2008. It is the mother’s case that she suggested the schedule for sale, because in April/May 2008 she could see that S’s health was deteriorating and by 4 June 2008, S was hospitalized for eleven days, after which he was due to be administered three months of intensive antibiotic treatment. In that context, she said that she believed that she would not be able to guarantee that she would be able to prepare the house for inspection if S was sick and proposed that she and the children move to the maternal grandmother’s home, thus leaving it vacant for inspection.
On 14 July 2008 the mother and children moved to the maternal grandmother’s flat which is where they continued to reside at the time of the final hearing.
On 18 July 2008 the father issued contravention proceedings against the mother. He alleged that the mother had breached orders in respect of time spent with both children on 11 May, 6 July, 8 July and 10 July 2008 and with S on 25 May, 9 July, 2008. Unfortunately, the week that contravention proceedings were issued by the father coincided with the death of the mother’s aunt, from an overdose of drugs. That death deeply affected the mother and the children. The father was not to know. However, it is worthy of note that the contravention application was misconceived and not an application pressed at the final hearing. Ultimately, it was withdrawn.
It is common ground that the accommodation at the grandmother’s flat is unsuitable for the mother and the children. The children sleep on mattresses on the floor as two beds would not fit in the room. The mother either shares the bed with M or sleeps on the couch. There is no outdoor play space. There is a family dog which is deposed to, although how it is accommodated was not the subject of any evidence.
There is no dispute about the fact that the family property was auctioned in August 2008. The reserve price was $615,000.00. There was only one bid at auction at $580,000 and following the auction, that last bidder offered $590,000 and then, eventually, $615,000 which was ultimately accepted. However the purchaser withdrew from the transaction for reasons which are disputed between the parties. The mother claims that the purchasers changed their minds while the father claims that the failure of the property to sell was due to the mother’s delay in accepting the offer. In the context of correspondence from the mother, which was not tendered in evidence, the father instructed his solicitor to write to the mother inviting her to arrange a further auction of the property on the following basis:
i)Our client is not responsible for any costs involved with a further auction
ii)Our client receives his entitlement based on a sale price of no less than $615,000
In that correspondence, the father also gives the mother sole authority to make decisions about the date and the reserve price and that if she does not agree, then the property should remain on the market for private sale and that ‘he should not be responsible for any further costs incurred in selling the property.’
In her response to the father, the mother denies any responsibility for the failed sale and requested that the father agree to allow the mother and the children to move back into the house.
By the time of the final hearing, the house had been leased on a periodic tenancy. It is the father’s evidence that the mortgage is about $400 per fortnight and that he now receives $200 per week for rent. Other expenses such as the rates and water are still paid by the father.
It is the evidence of both parents that following this correspondence related to the sale of the property, M telephoned the father. The father agreed that M became very distressed as she tried to discuss with the father the mother, S and herself moving back into the house. It is the father’s evidence that he told the children:
“[M], I’m not talking to you about this. If you want to talk about something else, I’m happy to talk to you about it.” In the end I said: “ [M], I’m going to have to hang up. I’m going. You’re getting upset,” and she put [S] on the phone and [S] was the - he said, “Let us move back into the house,” and I said the same thing to [S]: “Mate, I can’t talk to you about it. I can’t talk to you about it. I’m going. I’m hanging up because I don’t – everyone’s upset.”
The father gave evidence that the impediment about him talking to the children about the house arose from orders that preclude the parties from discussing with children any aspect of proceedings other than time they are to spend with their father. Property matters were never the subject of proceedings in this court. There was no order preventing the father from talking to the children. The father agreed that in the end it was probably his decision that the mother and children could not move back into the property subject to sale.
The next day M attended the property, which was occupied by tenants. She called the father, by mobile telephone, whilst en route to the property. The accounts of both parents are not too far apart. It is the father’s evidence that M called him and left a message on his mobile telephone words to the effect of: ‘“I’m on the way to the house. I’m going to cause a big scene when I get there.”’ His explanation of what follows
I went past the house and I asked [M] to, "Get in the car and I'll take you home." She refused and I said, "Does your mum know where you are?" and she said, "She might; she might not." I drove away and I rang Leanne and they rang [the mother’s] solicitor. The guy that's in the house, he rang me. When he got home, [M] was there and he said, "What do you want me to do?" I just said that I'm trying to - I said, you know, "If you talk to her, talk to her." You know, "Don't let her in the house." One of the other phone calls [M] rang me and said, "The back window is open. I'm gong to hop into the house." I said to [M], "You can't do that. If they come home and you're in the house, you'll get in trouble. You're not allowed to do that."
On the mother’s version of events, M called the father on her way to the property and said that she had an agreement that she wanted him to look at trying to stop court proceedings and us moving back into the house. The mother says she then received a phone call from M who was hysterical and asked her to come and get her. While the mother was en route, the mother then received a phone call from her solicitors communicating the father’s request that she collect M from the house as M was ‘causing a lot of drama’. It was the mother’s evidence that M told her that the tenant of the house had told M that ‘your dad wasn’t coming around, the house isn’t yours, it’s your mum and dad’s.’
In the family report dated 1 December 2008 Ms W reports that M remains ‘entrenched in her animosity toward her father. [The father’s] insistence on litigating, despite being aware of his children’s feelings toward him, is perceived by her as indicative of intense insensitivity and vindictiveness. She sees her father’s attitude in refusing to discuss the issue of the family home with her and her bother as further demonstration of a complete lack of genuine concern and unforgivable.’
When the father was asked by counsel for the mother why he had done nothing to resolve the situation about the house, given the level of distress that had caused the children, the father said that no one had put anything forward in relation to what happens to the house. When pressed, the father conceded that the mother had made a proposal on 10 November 2008 through her solicitors. He conceded that he had made no reply to that request.
It is clear that the children are bearing the brunt of the parents’ inability to communicate about important practical matters which affect the children’s well being. In the absence of the parents’ ability to communicate effectively, it would seem that M is stepping into the breach. When M intrudes upon this otherwise adult province, it appears that neither of the parents acts to relieve or remove the inappropriate burden M has placed upon herself. Notably, neither parent commented with any alarm upon M’s unilateral attempts to resolve either the issue relating to engage the parents in the quest for stem cells to cure S or the housing situation. In both circumstances, the children were left to languish without adult intervention which might have alleviated their stress, worry and anguish.
On 20 November 2008 the family attended upon Mr W for assessment. I will discuss Ms W’s assessment later in these reasons. Ms W saw the parents separately, S and M separately and then S with each parent. The father was not seen with M. During the sessions, the father told S that he was planning to marry in early 2009. When the father left the session with S, he left without saying goodbye. In cross examination, Ms W confirmed that the lack of a farewell was not because of any misconception on the part of the father that he would see S in session again.
At the time of the final hearing, M had not sent time with the father since May 2008. S was spending time regularly with the father but was very reluctant to do so. Ms W’s evidence was that he was that he was persevering in order to appear compliant to orders of the court and with a desperate hope that regard would be had to his desire not to see the father.

Ms W’s evaluation of the matter was as follows:-
39.The Court is referred to the section of the Family Consultant’s Assessment dated the 11^th of April 2008. The situation not only remains as dire as it was then, but has become significantly worse, with [S], aged eleven and [M], aged thirteen, even more estranged from their father. [The father’s] desire to have a relationship with [S] remains as intense.
40.[M] will now have nothing to do with her father. [S] is also completely adamant that he too wants nothing to do with [the father], however [the father] is committed to the view that there is still something to be salvaged in his relationship with [S]. He accepts that at this point this is not the case with [M].
41.The pressure on [S], because of his father’s constant attempts to force that relationship, is causing him to be physically ill as well as highly emotionally stressed. Knowing the matter continues to be in Court and having to be repeatedly interviewed about this exacerbates [S’s] stress.
42.[The father] refuses to accept that the extreme anger and distress that [S] demonstrates in his presence is genuine. He has made his views regarding this extremely clear to [S].
43.[The mother] believes that whilst [the father] is genuine in his desire for a relationship with his children, the more he forces the situation, the more [S] in particular suffers and that this suffering should now be stopped by both [the father] and the Court by acceding to [S’s] wishes.
44.Justice Bennett requested “an assessment of the child [S’s] (born […] May 1997) level of stress and, to the extent that she is able, psychological health and include such assessment in her report”.
45.[S], although physically small for his age and still only eleven years of age, despite, or perhaps because of his illness, is a thoughtful, resourceful and very strong willed lad. In many ways he is more mature than most children of his age, having had to find strategies to cope emotionally and physically with the limitations that Cystic Fibrosis has created in his life. He has done this admirably, with the assistance of his mother and support of his sister. In other ways, he is probably less mature than other boys his own age, because of his need for his mother in particular to help him implement those strategies. Whilst [the father] may have wanted to be a part of this process, the reality, whatever the reason, is that he has not been.
46.Rather than “putting on a performance” it is this Family Consultant’s assessment that [S] is profoundly stressed by the pressure of his father’s insistence on pursuing a relationship with him despite his wishes.
46.[S’s] sobbing, coughing and dry reaching when discussing, or with his father, were perceived by the Family Consultant to emanate from genuine and deeply held distress. Whilst [S] may not be constantly fearful of his father, there is no doubt he has experienced and witnessed frightening instances in his presence. [S] may well be ambivalent about his father but, whether it is through “brainwashing” as [the father] feels or based on false premises, indeed no matter what the cause of his feelings, the reality now is that this boy is suffering from extreme stress triggered by his inability to tolerate any relationship with his father at this point in his life.
47.It is this Family Consultant’s assessment that the matter has now gone beyond trying to establish the root cause of [S’s] estrangement from his father. It is clear that [S] can no longer cope with having to go through the stress of relating to his father, week after week, against his expressed wishes. […]
I reject the father’s case to the effect that S can or should be coerced and forced into spending time with him on the basis that S will eventually become accustomed to, and enjoy, doing so. I accept Ms W’s evidence that S has been waiting desperately for a final determination of these proceedings and has wished to appear compliant until now but that it is most unlikely that he will continue to comply with permanent orders which override his expressed views.
Ms W was cross examined. Her views on the genuineness and strength of S’s views were not successfully challenged. I accept Ms W’s evidence as soundly based. I find that S holds extremely strong views against spending time or communicating with the father and that S’s views should be given considerable weight. I fear for his wellbeing in the immediate and long term future if his views are not accorded weight.
Acceding to S’s views would, in every sense, represent the least worst result for this family. The case is deeply disturbing. However, I conclude that S’s expressed views are an important factor in my determination.

The nature of the children’s relationships[22]

[22] s 60CC(3)(b) Family Law Act 1975 (Cth).

I consider the nature of the children’s relationship with each of the parents and other persons inclusive of grandparents and other relatives.
S’s primary attachment is to his mother. His illness predisposes him to less emotional and physical independence that one may expect of a child of the same age.
S has a close and loving relationship with his sister and his maternal grandmother.
I find that, at the time of the final determination, S had no positive relationship with the father and there exists no foundation upon which to build a viable, let alone beneficial, relationship. Hopefully, that will change. Ms W predicts that positive developments will follow from S’s expressed views being respected and an extended period of respite from the father attempting to see him or make arrangements to spend time with him.
I have considered that nothing productive may flow from providing respite to S and his maternal family by refusing to make orders for S to spend time and communicate with the father. However, I conclude that nothing will be lost because the state of S’s relationship with the father is so parlous that to force S into the father’s company will place S in harms way. That is, emotional and psychological harm as discussed above, physical harm due to his fragile health and extreme stress as well as physical jeopardy because, as Ms W countenanced, S may try to physically escape his father’s presence and be injured or harmed in the process.

The willingness and ability of each parent to facilitate and encourage the children’s relationship with others[23]

[23] s 60CC(3)(c) Family Law Act 1975 (Cth)

I have considered the ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent. It is also necessary for me to assess the extent to which each of the parents has to date fulfilled or failed to fulfil their obligations or frustrated the other parent’s participation in this regard.[24]
[24] s 60CC(4) Family Law Act 1975 (Cth)
Over the two years of the less adversarial trial process, my adverse assessment of the mother’s willingness and ability to facilitate a positive relationship between S and the father has waxed and waned.
Ms W described the mother’s position at the time of the final determination in the following terms[25]:-
24. [The mother] remains adamant that she encourages the children to have a relationship with their father, despite their attitude to him and allegations by [the father] that this is simply not true.
25. Whilst previously, when discussing the issues with the Family Consultant [the mother] has made what appeared to be constructive proposals as to how to find a way to build the relationship between [S] and his father, she has reached the point of saying that [S] cannot tolerate the tension of feeling forced into this relationship any longer.
26. [The mother] is concerned that on top of the tension of the ongoing litigation, the weekly pressures involved in seeing his father and the loss [S] has experienced with the death of his aunt and being out of the family home, have combined to make the situation increasingly intolerable for this boy. Whilst she accepts that [S’s] specialist insists that he is progressing remarkably well, she does not see how the distress [S] experiences, that is the physical distress arising from his emotional turmoil, can be anything but damaging to his health. [The mother] therefore now endorses her son’s position that he should longer be forced to see his father.
27. Whilst [the father] is highly critical of [the mother’s] attitude to fostering a relationship between him and the children and describes her as emotionally abusive, [the mother] copes remarkably well with [S’s] illness and her endeavours to normalise his life and [M’s] as much as possible. [The mother] is constantly taking [S] and [M] to sporting and other activities, actively supporting them in these, ensures they have an active social life and appears to be strongly supportive of their schooling. In addition she works part time. Whilst [the father] may see her intense involvement with the children as a way of keeping him away from them, the reality is that [the mother] is taking, as she has always done, responsibility for caring for two needy children as best she can, whilst dealing with the ongoing pressures of the litigation and being a single parent.
28. [The mother] sees [the father’s] unwillingness to talk to the children about the house issue as insensitive. Whilst acknowledging it was highly inappropriate for [M] to try to take matters into her own hands, in regard to this she stated her daughter’s actions were a “desperate attempt to get his attention.” [The mother] is concerned that [the father] is unable to see the impact his refusal to acknowledge the children’s feelings is having on them.
29. Whilst well aware that the prognosis for [S] is not good and acknowledging the tragic position [the father] finds himself in she believes that as a loving parent, [the father] needs to take a step back from his children for the time being.
[25] Family Report dated 1 December 2008
Ultimately, Ms W comes to the same conclusion as the mother whilst not validating the mother’s position in its entirety.
S and M have been let down by both parents. However in relation to the preparedness of the mother to permit, facilitate or encourage a positive relationship between S and the father, I find that her failings have been attributable to a lack of capacity to separate the emotional needs of the children from her own needs rather than malevolence.

The likely effect of any changes in the children’s circumstances[26]

[26] s 60CC(3)(d) Family Law Act 1975 (Cth)

In determining what is in the best interests of the child I have considered the likely effect of any change in S’s circumstances, particularly in relation to separation from the father and other persons with whom the children have a relationship.
Sadly, I am satisfied that the separation from the father will be a positive outcome for S as will lifting the burden on him of his family being embroiled in litigation.
I have considered that there will be no mechanism by which the father will know if S is amenable to seeing him but, I conclude, that is preferable to putting in place any review process which will not bring finality to the proceedings. S will be able to let the father know if he wishes to see him. It is the father’s responsibility to send cards and letters; a by-product of this is that S will remain informed of the father’s contact details.
Finally, I have considered that the court’s refusal to order time or interactive communication between father and son may fuel the father’s anger and disappointment and make him even less able to understand the complexities of S’s predicament. I note Ms W comment in December 2008, that:-
19. [The father] is so overwhelmed by his own sense of sadness and blame towards others that he has difficulty in being able to empathise with the children’s own feelings of blame towards him and their sadness and anger regarding their home. […]
20. [The father] is utterly committed to maintaining contact with [S]. This is an understandable position for any parent, let alone one of a child with Cystic Fibrosis. [The father] is however, unable to see at present that the more he insists on forcing that “relationship” via the Court and refuses to accept the genuineness of the child’s feelings, the more he is pushing [S] away.
[…]
23. [The father] is understandably terrified of losing contact with his son, who has a life threatening illness. He is also angry and frustrated with [S] for his attitude to him and appeared unable to hide this. Whilst convinced that others can help him rescue his relationship with his son at this stage, at this point this may well not be possible.
It will be most unfortunate if the father’s anger and disillusionment precludes him from being receptive to any approach subsequently made by S or M or on their behalf. However, I regard that unfortunate outcome as still preferable to forcing the situation with S as the father has displayed a tendency to do.

Practical difficulties and expense associated with contact[27]

[27] s 60CC(3)(e) Family Law Act 1975 (Cth)

I have considered the practical difficulty and expense of S spending time with and communicating with the parent with whom she will not be living.
I find that forcing S into the father’s company may result in S trying to escape his father’s presence and being harmed in the process.

Capacity of the parents to meet the children’s needs[28]

[28] s 60CC(3)(f) Family Law Act 1975 (Cth)

In determining what is in the best interests of the children, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including physical, emotional and intellectual needs.
As discussed, I find that both parents are challenged by an inability to separate what he or she needs or seeks as a just entitlement from the emotional needs of their children.
In January 2006 Mr P concluded his report by expressing a strong view that only psychological intervention would assist the family and:-
.. The long-term implications for the children in my view greatly outweigh the importance attached to [the father’s] application for contact. It is of concern to me that a Court Order for contact which is not successful will act further in the long term detriment of the children and their welfare. A more collaborative and cooperative approach involving [the father], [the mother] and possibly the children around psychological intervention is in my view the more appropriate way to proceed.
Since then, the parents and the ICL have trialled many regimes of time and communication between father and son, some pursuant to court order and some not, with no success.
The ICL submitted that the mother provides very well for the children’s physical needs, including the demands placed upon her by S’s illness and that the children are thriving in the mother’s care in all aspects of their lives save for their relationship with their father. I accept that submission.
Dr K in his psychiatric assessment of the father raises questions over the father’s capacity to care for the needs of the children on a consistent or long-term basis given his past inconsistency. In Dr K’s assessment, the father has put his need to live a ‘second life’, including traveling for long periods overseas, above the emotional needs of his children. The ICL pointed to the complaints of both children of physical discipline at the hands of their father, to which he admits until approximately May 2008. The ICL submitted that, given the precarious state of the relationship the father has with the children, his physical discipline is a manifestation of the difficulty he has in appropriately controlling his reactions to confronting behaviour. I accept that submission.
It was submitted by the ICL that, whatever the merits of either parents’ position, this is a dispute which it would appear the father could have dealt with on a proactive basis, rather than by ignoring the children’s feelings. It appears that the father consistently blamed the mother for the state of his relationship with both children rather than acknowledging his actions which may have contributed to their feelings. According to Ms W, the father displays a disturbing inability to accept that whatever its cause, S’s distress is genuinely felt by him and not staged. The father’s ability to protect and foster S’s emotional and psychological needs was therefore of concern to the ICL. I accept that as a valid concern.
The parents will have to seek and benefit from psychological intervention before they can do anything more constructive for the children. Dr K was not optimistic about the capacity for change. I accept that opinion. In the meantime, I am satisfied that each parent has done what he or she can do having regard to their own limitations.

The children’s maturity, sex, background and other characteristics[29]

[29] s 60CC(3)(g) Family Law Act 1975(Cth)

As discussed above, I accept that the children are well functioning in every aspect of their life save for that which involves the father. Family dynamics are greatly influenced by S’s medical condition. However, M has a need for normality and to not be overborne by compassion for her brother. Both children have special but very different needs.
Ms W described S as simultaneously mature and less mature than other boys of his age, as a consequence of his physical condition (as cited at [153] above). I accept that description as accurate.
It was never far from my considerations that S could become critically and fatally ill at any stage. Waiting to see if he would develop a positive interest in having his father involved in his life was not as viable an option as it is in proceedings about children of unexeceptional health. I have considered this predicament from many perspectives not the least of which is how, as an adult, M could harbour significant resentment against either or both of her parents.

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[30]

[30] s 60CC(3)(i) Family Law Act 1975 (Cth)

I considered the extent to which each of the parents has fulfilled, or failed to fulfil his or her responsibilities as a parent. This factor includes the extent to which each parent has taken or failed to take the opportunity to spend time[31] with and communicate with[32] the children and to participate in major long term issues concerning the children.[33] It includes the extent to which the parent has fulfilled or failed to fulfil his or her obligations to support the child financially[34] or otherwise maintain the child. It also includes the extent to which each parent has facilitated, failed to facilitate or frustrated the other parent’s participation in the long term welfare[35] and the other parent communicating with the children[36] or spending time with the children.[37].
[31] s 60CC(4)(a)(ii) Family Law Act 1975 (Cth).
[32] s 60CC(4)(a)(iii) Family Law Act 1975 (Cth).
[33] s 60CC(4)(a)(i) Family Law Act 1975 (Cth).
[34] s 60CC(4)(c) Family Law Act 1975 (Cth).
[35] s 60CC(4)(b)(i) Family Law Act 1975 (Cth).
[36] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).
[37] s 60CC(4)(b)(ii) Family Law Act 1975 (Cth).
I have particular regard to events which have happened, and circumstances which have existed, since the parties separated.[38]
[38] s 60CC(4A) Family Law Act 1975 (Cth).
The ICL submitted that, apart from the relationship between the children and their father, which is of course a very significant aspect of their lives, the children are otherwise very well cared for and nurtured by their mother. That is so.
I agree with the submission of the ICL that, whilst the father is meeting the ongoing costs of the children’s private schooling and was consistent in attending S’s medical appointments, he has made decisions which have sent messages to the children that they are not his priority. For instance, he chose to leave the children and the country for significant periods, including for six weeks this year. This year’s absence was at a time when the parties were in the midst of litigating this dispute and settling their property dispute, the children’s relationship with him was tenuous and he had just secured orders for a series of visits designed to attract S to attend. I agree that it was an inappropriate and insensitive decision by him and grossly inappropriate to couch his letter informing them of his departure as a disingenuous invitation to accompany him. Dr. K expresses the view that the father has a need for an independent and second life away from the children which has taken priority over their needs. This resonates with the observations of Mr P and Ms W as to how the children perceive the absences of the father from their lives.

Any family violence involving the children or any member of the children’s family and family violence orders[39]

[39] ss 60CC(3)(j) and (k) Family Law Act (Cth)

The definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property. The father admits to having hit the children. There was no debate about the appropriateness of physical discipline. However, it appears that the father has lashed out in anger and frustration which makes his actions entirely inappropriate.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[40]

[40] s 60CC(3)(l) Family Law Act (Cth)

Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes.
Ideally courts should make parenting orders that minimise the prospects of future litigation. All litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. In this matter, litigation and the associated pressures have been identified by Mr P and Ms W as a very negative force and major stressor to S. It simply must cease.
I have reservations about the success of subsequent proceedings unless the parents modify their attitudes and behaviour to a transformative degree. The parties have had the benefit of expert opinion along these lines since Mr P’s report was published in January 2006. Even so, the matter required three reportable interventions by a very experienced family consultant and nine or so mentions or hearings of an interim nature, which usually involved some modification of spend time arrangements, as well as three days of final hearing. It is tragic that the passage of time has only served to entrench the animosity of the children toward the father to the point that the father has not seen M since May 2008 and I will decline to make any orders entitling him to spent time with S.
It is not my intention to define the basis upon which the issue of time spent could be relitigated. However, I would be surprised if the matter were to be re-opened without evidence of an expressed desire by S to see the father and/or some comprehensive expert evidence to the effect that the father has addressed the various aspects in his parenting style which have been found wanting.

Parental responsibility

Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[41] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[42] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
…… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[41] s 61B Family Law Act 1975 (Cth).
[42] s 61DA(1) Family Law Act 1975 (Cth).
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[43] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[44] and to ‘make a genuine effort to come to a joint decision about that issue’.[45] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
[43] s 65DAC(2) Family Law Act 1975 (Cth).
[44] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[45] s 65DAC(3)(b) Family Law Act 1975 (Cth).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
·If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[46] or abuse of the child or another child who is a member of the parent’s family;[47]
·If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[48] or;
·Where evidence is adduced, upon which the court is satisfied 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.[49]
[46] s 61DA(2)(b) Family Law Act 1975 (Cth).
[47] s 61DA(2)(a) Family Law Act 1975 (Cth).
[48] s 61DA(3) Family Law Act 1975 (Cth).
[49] s 61DA(4) Family Law Act 1975 (Cth).
I am satisfied on the evidence that there is only a slim chance that the parties would be able to communicate adequately or for the benefit of the children about major long terms decisions. There is a poor record of either parent being able to insulate the children from adult issues. That said, the mother is agreeable to the father sharing parental responsibility as it pertains to education and medical matters. The father pays for all education and it is appropriate that the children are reminded of that regularly and they are aware that he is fully informed of their progress. Medical matters are likely to be based on imperatives rather than choices so there is less scope for disagreement. I will accede to shared parental responsibility for the children.
As to the parental responsibility for the balance of matters, it is most appropriate that these rest with the mother. The allocation of parental responsibility is dictated by very practical concerns and, most of all, what is in the children’s best interests. I am satisfied that this responsibility should rest solely with the mother. That will mean that she and the children can relocate out of the area. They might have to do so in order to accommodate themselves adequately. There was a concession that there be 60 days notice to the father to enable him to consider his options. That is a minimum period. If the mother does plan to relocate, the more notice the better.

Consideration of equal time or substantial and significant time with both parents

By virtue of having previously determined that it is not in S’s best interests for the parties to have equal shared parental responsibility, it is not necessary for me to consider why equal or substantial and significant time with each of the parents is inappropriate.

Conclusion

I am satisfied that in the nearly two years of less adversarial trial procedure, the parties exhausted all obvious avenues to re-attach the children to the father and to make them prepared to spend time and communicate with him. Sadly, all endeavours failed. The parties have had the benefit of a thoughtful and competent ICL and a very senior family consultant. I am satisfied that the final determination was the outcome which most consistent with S’s best interests.

I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate:

Date: 3 December 2009

[2008] FamCA 1265

18 December 2008

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