SEAWARD & MACDUFF

[2017] FamCA 848

FAMILY COURT OF AUSTRALIA

SEAWARD & MACDUFF [2017] FamCA 848

FAMILY LAW – CHILDREN – Where the father seeks orders that he spend supervised time with the children, progressing to unsupervised time, equal shared parental responsibility and that the children engage in therapy – Where the children, aged 12 and 13, have expressed the view that they do not want to see their father – Where the father alleges the mother has alienated the children from him – Where the parties’ adult child is estranged from the father – Where each parent has demonstrated a lack of insight as to the effect of their actions on the children – Where it is not in the best interests of the children to make orders compelling them to spend time with their father – No order made for the children to spend time with the father – Orders made for the mother to have sole parental responsibility – Orders made for the father to send letters to the children and for the mother to send the father updates about the children – Orders made for the children to attend counselling. 

FAMILY LAW – EVIDENCE – Application by the father to rely on a report of an expert psychologist, not in relation to the psychological health of the father – Where the report related solely to a critique of the family report – Where no leave had been granted pursuant to rule 15.49 to rely on an adversarial expert – Where the father was not granted leave to tender the report.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 60CG, 60B, 61DA, 65DAA
Family Law Rules 2004 (Cth) r 15.49

APPLICANT: Mr Seaward

RESPONDENT: Ms MacDuff

INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

FILE NUMBER: SYC 2177 of 2011

DATE DELIVERED: 13 October 2017

PLACE DELIVERED: Parramatta

PLACE HEARD:	Sydney
JUDGMENT OF:	Le Poer Trench J

HEARING DATE: 23, 24, 25, 28, 29, 30 August 2017, 1, 15 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self

COUNSEL FOR THE RESPONDENT: Self

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER : Brian Samuel & Associates

Orders

1. All previous parenting orders are discharged.

2. The mother is to have sole parental responsibility for the children J born … 2004 and Z born … 2005 (hereafter “the children”).

3. The children are to live with the mother.

4. The children are to spend no time with the father otherwise than as may be permitted by these orders.

5. The mother is to use her best endeavours to arrange for both children to attend confidential therapy with a psychologist nominated by the Independent Children’s Lawyer, such therapy to be affordable to the mother. Such therapy is not to be reportable to the Court or either parent. The therapist is able to provide advice to the mother about the children and request she participate with the children in any manner the therapist considers to be beneficial to the children.

6. Should the father ascertain the identity of the psychologist carrying out the therapy required for the children by these orders, he is restrained from making any contact with that psychologist unless he has been invited to do so in writing by the mother. With the exception of the requirement to comply with this order, the mother has no obligation to disclose to the father the identity of the psychologist who will be providing therapy to either of the children.

7. The mother is to provide any such therapist who is providing a service to either of the children pursuant to these orders with the reports of Mr BB dated 16 June 2016 and Ms CC dated 1 August 2017 together with a copy of these orders and the Judgment providing for such orders.

8. The therapy to be provided to each of the boys is to assist them in their development given the history of exposure to family conflict as set out in these reasons and any other aspect of their psychological wellbeing which is seen to be in need of assistance by the chosen therapist.

9. The mother is to cause each school which either J and/or Z attend during the course of their minority, to provide the father with all documents normally made available to parents by the school, at the father’s expense, if any, including but not limited to school reports, school photos, newsletters and the like. The mother is to ensure that each school which the children attend has her written authority, as required by this order, together with a postal and email address for communication with the father.

10. The father is restrained from approaching the children at their schools, home, sporting activities, or any other place he may come into contact with the children, even if that be accidental, unless requested, in writing, to do so by the mother.

11. Should the mother provide her written consent to the father spending time with the children, then she is to ensure the terms of that “spending time” consent are clear. The father, if he agrees to spend time with the children pursuant to the mother’s written invitation/consent, is to comply strictly with such terms and, to the extent necessary, such written terms will operate as if it were an order of this Court which varies the provisions of the orders contained herein.

12. On the first day of each month the mother is to cause an email or a letter to be sent to the father, under her name, which provides the father with a short history of the children’s activities, achievements and life events during the previous month. This communication is to include the type of information which the mother would like to know about each of J and Z were she unable to see them and they were living in a circumstance where she did not have meaningful contact with them. The communication is to be no shorter than 100 words and no longer than one A4 typed page. In the event that the mother sends the father this communication by email, the father is not to use that email address to communicate with the mother unless she specifically asks him to do so on a particular occasion as a one-off event.

13. Should circumstances change to a point where the father is spending not less than one day in any month with J and Z, the necessity for the mother to provide the email or letter to the father as required by the previous order will not be required for any month during which the father has spent such time with each child.

14. Should either J or Z be hospitalised for any reason the mother is to forthwith inform the father of such event, set out her understanding of why the child is in hospital and set out how long she understands, from advice she has received, the child will be in hospital. In any such event the father is not permitted to visit the child in hospital unless the mother specifically invites him to do so and then the father is only to visit on the days and during the times the mother has specified. If at the time such event occurs the father has been seeing the child by earlier agreement entered into with the mother, as these orders provide for, the mother is to allow reasonable visitation by the father to the child in hospital.

15. The mother is permitted to take the children outside Australia, during any of the children’s school holiday periods, to such destinations as she chooses and the consent of the father shall not be required for such travel. The mother is to follow the Australian Government’s travel warnings in relation to any destination she chooses to take the children, or either of them, and she is not permitted to take them to any destination where the travel warning at the time of intended travel is Level 3 –“Reconsider your need to travel” or Level 4 – “Do not travel”.

16. Each of the parents is restrained from discussing the proceedings or any issues arising out of the proceedings with the children, or within the hearing of the children, or permitting any third party (other than the children’s therapist referred to in these orders) to do so. Each parent is also restrained from showing the children copies of any documents filed in this Court or prepared in respect of this proceeding or any related proceedings.

17. The mother is to ensure that neither J nor Z are exposed to any adverse, derogatory, demeaning or degrading comments or views about the father, or the children’s surnames, expressed by her or any other member of her family or any other person over whom she might be able to exert some influence. Each of the mother and the father are otherwise restrained from denigrating the other parent in the hearing of the children and shall use their best endeavours to prevent any other person doing so.

18. Should the mother be in a position in the future to either reside with her husband Mr MacDuff, or have him spend time in the presence of the children, she is to require of him that if he is to be involved in the lives of the children he undertakes to her that he will not make derogatory or adverse statements about the father in the presence or hearing of the children nor is he to do or say anything which might be understood by the children to be critical of the father or their relationship to or with him. FURTHER, should Mr MacDuff refuse or fail to give the mother the clear undertaking required by this order then the mother is restrained from permitting the children to be with Mr MacDuff when she is not present and able to hear what he says to them.

19. The mother is to use her best endeavours to persuade B that she is not to voice, in the presence or hearing of the children, any criticism of the father or his relationship with the boys or their relationship with him.   If the mother becomes aware that B is behaving in a manner contrary to the behaviour the mother requires of her as set out in this order, she is to ensure that so far as possible the time when B is left alone with the boys is limited to circumstances where the mother has no viable alternative than to allow that circumstance to occur.

20. Until the children named herein attain the age of 18 years, the mother is authorised and permitted to apply for, receive and retain for safe keeping an Australian passport for each of J born in 2004 (a male) and Z born in 2005 (a male) without the necessity of first obtaining the consent of the father.

21. The appointment of the Independent Children’s Lawyer is to continue for a period of 12 months after the date of these orders.

22. Otherwise than specifically provided for in these orders the father is restrained from telephoning the children and the mother, and from sending the mother and/or the children letters or emails otherwise than in circumstances where she provides him with a written consent to any such additional communication.

23. The mother is to facilitate the children making a phone call to the father if they express a wish to do so and may monitor such phone call. Further she is to facilitate any request by either child to communicate with the father by email, text message or ordinary post. The mother is to encourage the children to establish contact with their father when either the children’s therapist recommends that or when the mother considers the children are amenable to doing so.

24. If either of the children requests a meeting with the father the mother shall facilitate such a meeting, and shall determine when, where and in what circumstances such meeting is to take place. The mother may, at her discretion, stipulate that the meeting be supervised by a person nominated by her including a supervisor supplied by P Contact Agency or some other organisation or body providing a supervised contact service. The cost of any supervisor provided by any such organisation to be met by the father.

25. The father is to, within 14 days from the date hereof, provide the Independent Children’s Lawyer with business cards displaying his contact phone number and postal address and the Independent Children’s Lawyer is to meet with the children and provide them with such cards and explain the Court’s orders.

26. The mother is to ensure that the father has the children’s current mailing address. Such address is not to be the address of her solicitor or any other intermediary. The address can be either a post office box number or the street address of the residence the children reside at.

27. The father is permitted to send, by pre-paid post to the children, cards and/or presents on each of their birthdays and at Christmas. The father is to otherwise send each of the children a letter, posted to them in the second half of each month, which letter tells the children news of his activities and life events in a manner which on any reasonable objective view is not likely to frighten, confront, upset or antagonise them. The mother is to provide these letters to the children unless there is some part of the letter which the mother considers may upset the children or expose them to parental conflict. Should the mother elect not to provide any such communication from the father to the children during the continuation of the appointment of the Independent Children's Lawyer pursuant to these orders, she is to send a copy of such communication to the Independent Children's Lawyer. If the Independent Children's Lawyer considers the communication is appropriate to be provided to the children, or either of them, he or she is to inform the mother of such view and the mother is to then provide the communication to the child or children. If the Independent Children's Lawyer agrees with the mother that there is some part of the letter which is inappropriate for the children to read the Independent Children's Lawyer is to identify such part/parts for the father and inform him why it is considered inappropriate.

NOTATION

1. The Court recommends that the father engage the services of a psychologist to assist him in meeting the grief he will most probably feel following the making of these orders.

2. The Court further recommends that the father enlist the services of a qualified professional to oversee the written communication he will to provide to the children pursuant to these orders. The father may publish to any such engaged professional a copy of these orders and a copy of the judgment giving rise to these orders. It is recommended that the father not include in any such letter to either child any words which objectively might be considered emotive to a level which could reasonably be expected to make the child sad or angry or any words which might be seen as critical of the mother or her parenting of the children or critical of her husband or B.

3. The Court notes that in giving her submissions and informing the Court of the circumstances which gave rise to the boys signing a Father’s Day Card and speaking to their father on the phone, the mother informed the Court that she had listened to what had been said during the trial by the Independent Children's Lawyer, the Family Consultant and Justice Le Poer Trench, and she had taken the information provided into consideration. If the mother truly has come to understand that she has acted in a manner which has contributed to the current circumstance where the boys are stridently opposing any contact with their father then the Court requests the mother inform the children, in a manner which the boys will accept her sincerity, that she does believe it is important for the boys that they know their father, that she will support them having any form of contact with him which they feel comfortable with, that they should not feel frightened of him AND that he does have qualities of which they can be proud.

4. Should the circumstance arise where the children are spending time with the father that time should move to unsupervised time as soon as possible.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seaward & MacDuff has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC  2177/2011

Mr Seaward

Applicant

And

Ms MacDuff

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is the second “final hearing” these parties have experienced where the Court has been required to make parenting orders as between Ms MacDuff (“the mother”) and Mr Seaward (“the father”) in relation to their children. The parties have three children together, B (now aged 18), J (aged 13) and Z (aged 12). These proceedings relate solely to the making of parenting orders for J and Z who are collectively referred to herein as “the children” or “the boys”.  

2. The first of the final hearings was determined by Justice Ryan by orders made 19 June 2013. Unless reference to facts, occurrences and/or incidents predating those orders is necessary to set a context for a series of questions which are now relevant, I have not permitted the parties to canvas facts which were before the Court for that earlier hearing or available to be before the Court at that hearing.

3. The hearing of the evidence in this case provided the Court with a picture of tragedy piled upon tragedy for the family which consists of the father (the applicant in this hearing), the mother (the respondent) and their three children B, J and Z. As the facts are recited hereafter the reader will understand why the descriptive of “tragedy” has been used by me.

4. Both the mother and father presented as pleasant and likeable people.  Although individually presenting as very pleasant and accommodating personalities, each, at least at the beginning of the hearing, displayed a level of animosity and distrust of the other which seemed impenetrable to alteration.

5. As the conclusions in this case demonstrate, each party must bear a degree of blame for the circumstance which now befalls their children (including B). Each will have to bear significant responsibility for the consequences which may emerge in the development and future of each child. The parents have collectively contributed to the appalling circumstance which has seen the breakdown of relationships to a point where the children have been required to inform the Court, through the medium of a Family Report and an Independent Children's Lawyer, that they wish to end any association with their father. Such an outcome is the manifestation of the worst of parenting capacity and inability to appreciate children’s rights to know and enjoy the comfort of security and nurturing of a loving parent. A circumstance where the Court is required to prevent the mechanism by which a child might develop and enjoy a meaningful relationship with each of his/her parents is the antitheist of what the legislators clearly intended would occur when they framed Part VII of the Family Law Act 1975 (Cth) (“Family Law Act”).

6. Each parent is intelligent and articulate. The mother holds a very responsible position with a listed company. The father is undertaking a degree and is working towards being able to use that degree for employment.

7. In submission, the Independent Children's Lawyer presented a minute of order which was recommended as an order best able to provide for the current care of the children. When the mother provided her submission she pressed for orders to be made as recommended by the Independent Children's Lawyer. The father pressed for orders to be made as he had sought in Exhibit H1.

8. As will be seen in these reasons I have reached the conclusion that there has been a significant change in the circumstances of the children and the parents since the orders were made by Justice Ryan on 19 June 2013. At the conclusion of the hearing I also concluded the mother has accepted that she has had a role to play in the current circumstances in which the children find themselves, in so far as their relationship with their father is concerned.

1. Unfortunately I have to conclude that although the father has come to understand a significant role he has played in the circumstance in which the children find themselves, he remains significantly suspicious of the mother and clearly sees her as bearing the largest portion of blame for why the boys now refuse to see him or have any meaningful relationship with him.

2. On about Wednesday or Thursday of the trial week, I asked the mother about the significance of Father’s Day for the boys. There had been cross‑examination of her about what had happened on Father’s Day in the last three years. It is fair to say I had raised with her my concern about the way in which she had allowed the boys to be placed in an embarrassing situation when they had nothing for their father to celebrate the fact he was their father on Father’s Day. Those special celebrations had been confined to and directed towards Mr MacDuff, the mother’s husband.  On the last day of the hearing of evidence in this case (Friday 1 September 2017) I again mentioned to the mother that the following Sunday was both Father’s Day. I told her that I would ask what had occurred on that day when I saw the parties again for submissions on Friday 15 September 2017. To my surprise the mother informed me that she had already delivered to the father, on that Friday (1 September 2017) a Father’s Day card from the boys. She said she had calculated that if the card had been posted to the father he would not receive it until after Father’s Day.

3. When the parties attended again to make their submissions on 15 September 2017 I asked if I could see the card which had been provided to the father by the mother on 1 September 2017. A copy of the card was provided. The mother (on her oath) told me that the boys had written on the card she had obtained for them. After they had written on the card she attached a photograph of the boys. I was also told that on Sunday 3 September 2017 the mother had caused the boys to contact their father by telephone and they spoke to him on a speaker phone in the presence of the mother for about three minutes. The mother said that B was in the house at that time, however, she was not in the vicinity of where the boys were speaking to their father.

4. The mother told me, before she commenced her submissions, and in response to my question about how the Father’s Day card was created:

   I listened to everything everybody had said during this proceeding, and I came with the approach that everyone had suggested and I said to the boys that it’s a very special day on Sunday for two reasons, and they knew it was Father’s Day, and I said “Yes, ….”

5. The mother said she had told the boys “It’s actually a really [day].”

6. The actions of providing the Father’s Day card and the phone call initiated by the mother are, for me, the most significant steps forward in the relationship between the boys and their father.  Further, it suggests most significantly, that the mother has come to appreciate her role in the breakdown of the relationship between the boys and their father. Lest it be thought that I have found or hold the view that the mother is solely responsible for the boys’ current relationship with their father, that is far from the truth. As will be seen in these reasons, I have also concluded that the father has played a significant role in that circumstance. As will be seen in the submissions provided by the father, he has also acknowledged his role in that sad circumstance.

7. In the oral evidence provided by the mother about the Father’s Day card, above referred to, I asked her a number of questions about her conversations with the boys. I considered, given all the evidence I had heard about the interaction between the children and members of the mother’s household since June 2013, the children might be perplexed, or surprised at the least, by the mother’s request now being made that they acknowledge their father on Father’s Day. The mother said the boys had asked her if they had to do it, and she had replied “Well no, you don’t have to do it, but it would be nice if you could do it.”

8. The mother also gave evidence about the telephone call she convinced the boys they should make to their father. She told the Court “I … took on board what your Honour had – had talked to me, and I got quite emotional about the fact that, you know, (sic) the shoe was on the other foot, and it was my [Mother’s Day] and I would like … a phone call.” The mother explained how she then managed to facilitate the boys speaking to their father for three minutes on Father’s Day.

9. I record here I do accept this hearing has been a very significant learning experience for both parents. Each has individually acknowledged their roles in creating the circumstance which now confronts their children, namely that they are presently unable to participate in spending time with their father. I accept that each parent may still harbour significant blame towards the other for what has passed between them since 2010. However, that past animosity seems to be dissipating and has done so sufficiently to allow self-reflection which was probably not possible a few years ago. It is to be hoped that each parent will now look to the future more than dwelling on the past, and if that can occur then this might enable the boys to seek out their father, knowing that in doing so, they are not being disloyal to their mother.

10. Each parent must anticipate that given the tumultuous past relationship they have each endured, it is likely that there will be occasions in the future when their relationship will be tested, however, if they truly do resolve to put the children’s interests first they may be able to weather those stormy aspects of their relationship a little easier. 

11. Sadly I have concluded that the boys’ relationship with their father will not be promoted by making the orders sought by the father. Such a conclusion is a tragic one, yet necessary, to fulfil the obligation the Court has under Part VII of the Family Law Act.

Background Facts

1. Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.

2. This hearing was conducted applying the provisions of s 69ZT of Division 12A of Part VII of the Family Law Act.

3. Each of the mother and father were self-represented and assistance was provided, where appropriate, by referring the parties to particular sections of the Family Law Act, explaining the procedure which is to be applied to the hearing, and assisting them to frame questions or propositions which they were seeking to ask or put.

4. As stated earlier, the focus of the evidence in this hearing has been events which post-date the conclusion of the hearing before Justice Ryan in October 2012.

5. The judgment delivered by Justice Ryan on 19 June 2013 was comprehensive, comprising of 96 pages of reasons. The judgment was not the subject of appeal, although the husband said he had filed an appeal and then abandoned it. I will not repeat the findings of Justice Ryan, however, I will set out those findings which are relevant to this hearing together with any other background facts which are relevant to ground the findings, conclusions and determinations made in these reasons.

6. The parties commenced cohabitation in 1995 and separated, as found by Justice Ryan, in November 2006. The father is now 50 years of age and the mother is 45. They have three children. B was born in 1998, J was born in 2004 and Z was born in 2005.

7. Justice Ryan concluded that there was no doubt the parties had an “on and off relationship” with times when the mother lived with her parents. However, before the father was incarcerated in 2009 he had spent regular and frequent time with the children. Justice Ryan found the father was charged with assault, larceny and robbery. The offences for which he was convicted are not recorded in her judgment. The father was incarcerated for 15 months.

8. The father appealed his conviction and sentence. Justice Ryan found that the evidence supported a conclusion that his appeal against conviction was dismissed, however, he was partially successful in the appeal against sentence which was reduced to six months. It seems the father had already served his time before this decision was handed down.

9. While the father was in prison, the mother rekindled a relationship she had previously with Mr MacDuff and soon after they resumed a relationship they were married. Justice Ryan found that the father “reacted to news of the mother’s relationship with anger, abuse and threats.”

10. Justice Ryan found the father had written to Mr MacDuff from gaol in a threatening manner and in language which she described as “vile”. After he was released from gaol she said their relationship was reduced to “beyond repair.”

11. In January 2011 the mother and children moved to Town U to live with Mr MacDuff. Justice Ryan said that move was against “the father’s strongly communicated opposition.” Her Honour then set out extracts from a letter the father had written to the mother from gaol. The wording of the letter is scathing of the mother for seeking to relocate the children from Sydney to the Central Coast where her husband had purchased a residence for them.

12. The mother did move the children to Town U and the boys commenced attending Town U Public School.

13. The father was released on parole in March 2011. Between March 2011 and August 2011 the children, including B, spent alternate weekends with the father and time during school holidays.

14. Within a month of his release from gaol the father commenced parenting proceedings in the Federal Circuit Court seeking residence of the children and injunctions restraining the mother leaving the children in the sole care of Mr MacDuff.

15. On 20 August 2011 the father took the children to speak to police about allegations Z had made of being assaulted by Mr MacDuff. It seems J also complained of ill treatment at the hands of Mr MacDuff. The father retained the children.

16. On 22 August 2011 the mother applied for, and obtained, a recovery order supported by the Independent Children's Lawyer. There was an injunction made against the mother in relation to Mr MacDuff. The children were returned to the mother. The father’s time with the children was suspended and, since that time, B has refused to see him. There is one exception to that last statement in relation to B which will be referred to later.

17. Justice Ryan found that the father did not then spend any time with the boys until February 2012.

18. Justice Ryan says that B was drawn further into the conflict by sending an email to a police officer informing that the boys had told her they had lied about being ill-treated by Mr MacDuff. The boys also informed the mother they had been told by their father to say that Mr MacDuff had ill-treated them. They again said that to police when re-interviewed on 28 September 2011.

19. On 23 August 2011 the police caused an ex-parte provisional AVO to issue against Mr MacDuff.

20. After that occasion there were a series of applications for ADVOs involving the parties and Mr MacDuff.

21. In the hearing before Justice Ryan the father sought permission to issue a subpoena to B in order for her to support his case that he had not placed pressure on the boys to make allegations against Mr MacDuff. Justice Ryan refused that application.

22. From August 2011 until orders were made on February 2012 the father spent no time with the children. Orders were then made for the father to have supervised time with the boys for three hours per week. B could attend if she wished to. The father’s time with the boys commenced at the end of February 2012.

23. Order 5(c) of the orders made on 2 February 2012 was as follows: “That the father not discuss the proceedings or any issues arising out of the proceedings with the children or permit any third party to do so.”

24. The report of the visit the children had with the father on 7 March 2012 showed the father had questioned the boys about their possible mistreatment by Mr MacDuff. Justice Ryan concluded that to be a breach of Order 5(c) and concluded “His breaches of orders revealed in this hearing were deliberate and demonstrate that he cannot be relied upon to abide (sic) orders with which he does not agree.” The consequence of that breach was that the orders for the father to spend time with the children were suspended. The suspension operated automatically as order 6 of 2 February 2012 required.

25. Justice Ryan had the benefit of a report prepared by Dr R appointed as a single expert in the case. She noted his recommendations in her judgment.

26. On 22 March 2012 the father’s time with the children, as supervised, was reinstated, however, her Honour did say, in relation to requests the mother had made to change the days of the week the children could see the father, “It would have been easy for the father to agree to alter the arrangements along the lines suggested by the mother.  However, he resisted and for reasons unrelated to the children’s welfare and, it would now appear simply to make the situation difficult for her, the father refused.”

27. Justice Ryan records that at the conclusion of the hearing before her, the Independent Children's Lawyer submitted that a “‘very restricted or recognition‑style contact’ between the boys and the father was the approach which should be adopted”, as had been recommended by Dr R.

28. Her Honour concluded the father could not be relied upon to adhere to agreements and that the extent of his insight, to the extent he had any, was fleeting. That determination arose out of a circumstance where the father had at one point in the trial agreed the injunction restraining Mr MacDuff from being unsupervised in the presence of the children could be discharged and then later regretted that decision and pressed for the injunction to be re‑instated.

29. Justice Ryan set out detail of text messages sent by the father to B in September 2011 and on Christmas Day in 2011, and the text message Mr MacDuff sent the father in response, and then the further email the father sent B attaching the text from Mr MacDuff. Her Honour concluded that “[the father’s] actions demonstrate a lack of judgment (sic) and … warrants strong criticism.”

30. On 30 May 2012 the father sent a text to B which was an unqualified apology. This had been recommended by Dr R. Her Honour found that although the text breached a Court Order she accepted this was a reasonable first step in the repairing of his relationship with B.

31. On 17 September 2012 the father approached B at Suburb X Railway Station. Her Honour set out the words from a police statement made by B. In that statement a question is recorded “Did you think your father was going to hurt you yesterday?” B answered, “Yes he had this crazy look in his eyes.” She is also recorded as saying, “My father is very manipulative. He just tries to ruin the best days.”

32. Justice Ryan records that two days after the Suburb X Train Station incident with B, the father sent her a long text message. The whole text is reproduced in the judgment.

33. On 5 December 2012 an ADVO was made in the absence of the father to protect the mother and her husband from the father for a period of two years. The father applied on 10 December 2012 to annul the order. It was revoked on 16 January 2013. After a hearing at Suburb G Local Court on 17 April 2013 the application brought on behalf of the mother and Mr MacDuff was dismissed.

34. Justice Ryan sets out that prior to the conclusion of the hearing before her in May 2013, the father tendered a copy of the transcript of the Suburb G Local Court hearing on 17 April 2013. There was also a DVD of a supervised contact visit on 26 May 2012, a judgment of the NSW Court of Criminal Appeal (the determination of the father’s appeal against conviction and sentence) and a report for psychologist Ms O, who the father had seen.

35. Justice Ryan concluded that the father had engaged in behaviour which provided “examples of the father placing his emotional needs ahead of the children’s.” Her Honour included excerpts from letters the father wrote to the mother from gaol after learning of her relationship with Mr MacDuff. Those letters are very threatening and abusive. Her Honour described the letters as “an ongoing tirade”.

36. An important matter raised in the hearing before me is the role of Mr MacDuff in the mother’s household. Statements made by the boys and recorded by the contact supervisor, following the orders made by Justice Ryan, show the boys have told their father of things Mr MacDuff has said or done adverse to the continuation of a relationship between the children and their father.

37. Relevantly, in the judgment of Justice Ryan, she noted that the father had made comments against Mr MacDuff. Her Honour said:

    227. These (and other) comments demonstrate deep animus towards the mother’s husband who, without any foundation, [the father] branded a child abuser. That fury and determination to achieve his stated outcome has continued and there is little doubt that from when the father was released the children became aware of his antipathy towards the mother’s husband.

38. Perhaps prophetically, Justice Ryan said as follows “[Dr R] is concerned that restricted supervised visits for the boys with the father may ultimately see their relationship fail. It is accepted that if all the future holds is monthly or quarterly visits this is a real possibility.”

39. Her Honour concluded that unless the boys’ time with their father was closely monitored it had the capacity to destroy the mother’s relationship with Mr MacDuff and the “happy environment” the boys had with their mother on the Central Coast. It was the balance of the boys’ relationship with their father and the protection of their home with their mother which led Her Honour to make the orders she did on 19 June 2013.

40. In setting out the detail of history and relevant findings from the judgment of Justice Ryan, I have, in part, included the adverse findings that she made against the father to see whether there are still indications in the father’s behaviours, words and actions which illustrate he has not changed from the person Justice Ryan found him to be some four years ago. It has also been necessary to identify the issues of fact which were determined by Justice Ryan so as to avoid having those issues re-litigated in circumstances where no successful appeal against Justice Ryan’s judgment was achieved. It is also a useful exercise in order to see if the mother has changed her position in relation to the father since 2013.

41. As will be seen in these reasons, I have concluded there have been changes in the attitudes, parental actions and other relevant circumstances of each of the father, the mother and the children.

Orders sought by the parties

1. The Independent Children's Lawyer provided a minute of orders which was submitted ought be made by the Court. That minute provided as follows:

   1.        All previous parenting orders are discharged.

   2.       The Mother is to have sole parental responsibility for the children [J] born … 2004 and [Z] born … 2005.

   3.        The children are to live with the Mother.

   4. The mother is to use her best endeavours to arrange for both children to attend on a therapist nominated by the Independent Children’s Lawyer, such therapy to be free or affordable by the mother, and any therapy which the children participate in shall be confidential and not reportable.

   5. Leave is granted for the mother to provide such therapist with the reports of [Mr BB] dated 16.6.16 and [Ms CC] dated 1.8.17 and the mother is to provide such reports to the therapist.

   6.These orders act as authority for the schools which the children may attend to provide the father with all documents normally made available to parents, at the father’s expense, if any, including but not limited to school reports, school photos, newsletters and the like.

   7. The father is restrained from approaching the children at their schools, home, sporting activities, or any other place he may come into contact with the children, either intentionally or accidentally, unless requested to do so by the mother in writing.

   8. The mother is permitted to take the children to travel outside Australia to such destinations and at such times as she wishes and the consent of the father shall not be required for such travel.

   9. The parties are restrained from discussing the proceedings or any issues arising out of the proceedings with the children or permitting any third party to do so, and from showing the children copies of any court documents filed or prepared in respect of these proceedings or any related proceedings.

   10. Both parties are restrained from having any of the children interviewed by the NSW Police, JIRT, or the Department of Family and Community Services (or as that agency is named from time to time) unless directed to do so in writing by that agency or by court order.

   11. The mother is authorized and permitted to apply for and receive an Australian passport for the following children:

   a) [J] born ...04 and

   b) [Z] born ...05

   without first obtaining the consent of the father.

   12. The appointment of the Independent Children’s Lawyer is to continue for a period of 12 months after the date of these orders.

   13.The father is retrained from telephoning the children and the mother, and from   sending the mother letters or emails.

   14. The mother is to follow the recommendations of the children’s general practitioner.

   15.The parties are restrained from denigrating the other parent in the hearing of the children and shall use their best endeavours to prevent any other person doing so.

   16.The mother is facilitate the children making a phone call to the father if they express a wish to do so and may monitor such phone call.

   17.If the children request to meet with the father the mother shall take steps to facilitate such a meeting, either supervised or unsupervised at her discretion.

   18. The father is to provide the Independent Children’s lawyer with business cards displaying his contact phone number and postal address and the Independent Children’s Lawyer is to meet with the children and provide them with such cards and explain the court’s orders.

   19. The father is permitted to send cards, letters and gifts to the children and the mother is to provide these to the children at her discretion.

1. The mother, in submission, supported the position taken by the Independent Children's Lawyer and the mother consequently adopted the orders sought for the Independent Children's Lawyer as the orders she sought.

2. The father provided a minute of the orders he was seeking. That minute was marked as Exhibit H1. The minute sought orders which had the following effect:

   ·The children and the father together undergo therapeutic intervention.

   ·The mother be ordered to undergo a course of therapy designed to assist her understand the impact on the children of the parental conflict. In submission the father emphasised this would include identifying the actions and words of the mother which had contributed to the children’s current circumstances.

   ·The time the children spend with Mr MacDuff be supervised or restricted unless he is involved in a continuing intensive therapeutic counselling.

   ·The maternal grandparents undertake an appropriate course of counselling.

   ·The father have supervised time with the children until the end of 2017.

   ·From the commencement of 2018 the parties have equal shared parental responsibility for the children and the children spend equal time with each parent.

   ·The children are to continue to attend their current school and should the mother choose/agree to relocate to Sydney then the parents agree upon the school the children are to attend.

   ·The Court recommend the mother use her best endeavours to persuade B to undergo counselling with the father.

Evidence relied upon by the mother and the father

1. The father, who is the applicant in these proceedings, moved upon a minute of order which was marked as Exhibit H1. He otherwise relied upon his trial affidavit sworn 27 July 2017, an affidavit by his partner Ms DD affirmed 26 August 2016 and an affidavit affirmed by Ms EE on 26 August 2016. He tendered documents which, where relevant, are identified in these reasons.

2. On 29 August 2017, the fifth day of the trial, the father sought to tender a report he had obtained from Mr FF, psychologist and dated 28 August 2017. Mr FF had been providing some counselling to the father, however, his report did not address that topic. It addressed a critique of the Family Report, which had become Exhibit X1 in the hearing, and also other aspects of the concept of “parental alienation of children”.

3. Having heard argument from each of the mother and the Independent Children's Lawyer opposing the admission of the report as evidence, and having heard the submission of the father as to why it should be admitted, I determined that the father could not rely upon the report. My reasons for refusing the father’s application can be summarised as follows:

   ·The report was tendered as an expert’s report, not as the report of a treating psychologist or therapist of the fathers.

   ·No leave had been given to the father to be able to rely upon evidence of an adversarial expert which might contradict the report of the Family Consultant (see rule 15.49 of the Family Law Rules 2004 (Cth)).

   ·To permit the father to rely upon the report would work hardship against the mother and the Independent Children's Lawyer insofar as they had no opportunity to consider making an application to call an adversarial expert witness of their own.

   ·The trial had proceeded for four days and had a further three days allocated. Any adjournment of the hearing would see the matter unable to be fitted into the Court’s hearing schedule until well into 2018 considering that some time would have to be allowed for any other expert to be engaged by the mother or the Independent Children's Lawyer and to produce a report.

   ·The cost to the Independent Children's Lawyer and to the mother of obtaining a further report from an expert would be significant. Neither the father nor the mother appeared to have the capacity to financially contribute to the cost of such a report if commissioned by the Independent Children's Lawyer.

   ·The Court had made directions for the filing of evidence well before the trial.

   ·Although the Family Report was only signed on 1 August 2017 there had been time for the father to have made an application to be able to rely upon an adversarial report. The fact that the father was only able to obtain the report by 29 August 2017 was an unfortunate aspect of his case.

4. The mother relied only upon the affidavit she swore for the trial on 24 July 2017. She initially moved for the orders as stated in her Response to Initiating Application filed 23 February 2016. She also tendered some documents. She also joined with the Independent Children's Lawyer at the conclusion of the trial in seeking the Court make orders as proposed by the Independent Children's Lawyer.

5. The Independent Children's Lawyer provided a Minute of Order (reproduced above) which was submitted as setting out orders that are in the best interests of the children. That document was marked Exhibit ICL3.

The Issues

1. The issues of fact which emerged during the trial are identified in these reasons. The issues of fact which assumed the greatest significance for the parties in the trial were:

   ·The father’s claim that the mother had alienated the children from him.

   ·The mother’s claim that the father had followed or “stalked” the children or the mother or B so as to ascertain where the children were living, where the mother was working and following B to make contact with her.

   ·In particular whether the father had consciously arranged accommodation at GG Street, Town U knowing that was the same set of townhouses to which the mother had moved with children only weeks before 15 April 2016.

   ·Whether, post the 2013 Final Orders, the mother’s husband Mr MacDuff had spoken to the children about the father in derogatory terms so as to describe him as a “dole bludger”. Further, whether Mr MacDuff had thrown out any correspondence sent to the children by the father.

2. The issue which became critical to the determination of the orders to be made by the Court can be summarised as follows:

   ·    Should there be any order for the children to have face-to-face time with the father.

   ·    What other intervention should the Court Order such as therapy/counselling for the children and the parties.

   ·    If there is to be no face to face time for the children with the father, what other orders can be made to allow the children information about their father and the father information about the children.

   ·    What other provisions should be made.

Credit

The father

1. Mr Seaward presented as largely co-operative and contained in the manner in which he gave his evidence and represented himself in Court. He largely contained his emotions in a challenging emotional circumstance. On a few occasions he answered a question in a defensive manner, however, I do not consider that detracted from his credibility.

2. The father presented as being a truthful witness and a witness who was seeking to assist the Court with the determination of the parenting dispute. Notwithstanding his presentation there are aspects of his evidence which I may not accept. I will detail those items in these reasons.

Ms DD

1. Ms DD is the father’s partner. She provided an affidavit and was also required for cross-examination. She presented as an apparently honest witness. She was, at times, extensive in the answers she gave which bordered on being verbose, however, I do not consider that detracted from her credibility.

Mr HH

1. This witness is the mother’s father. He was called as a witness in the father’s case. The father asked him questions about an occasion when the father delivered some presents (the boys’ boogie boards) for the children to Mr HH’s home and then observed Mr HH following him from that property. The father asked him other questions about the relationship between the father and Mr HH. As far as I could determine Mr HH gave his evidence in a straightforward and apparently honest manner.

The mother

1. The mother gave her evidence in an apparently co-operative and honest manner. She gave appropriate concessions when required. There was nothing about her presentation in the witness box which suggested to me she was being dishonest. Notwithstanding her presentation there are aspects of her evidence which I may not accept. I will detail those items in these reasons.

2. The father in his submissions pointed to a number of specific pieces of evidence which he submits I would not accept from the mother. Those include the following:

   ·The contradictory evidence she gave, to that of her father, about the time the father delivered boogie boards for the boys to her father’s home.

   ·The contradictory evidence the mother gave about her knowledge that B was proposing to confront her father in March 2014 about his failure to sign her passport application.

3. Lest it be lost in the balance of these reasons I here record that I accept there was a conflict in certain aspects of the evidence the wife provided about the particular incident, however, she was reciting a version of fact which she had been provided by her father and she was not a witness to the event. The conflict was therefore of no consequence, I find, to my view otherwise that she was a witness of truth.

4. The mother’s evidence about her knowledge of what B was planning to do when she accompanied the boys on their supervised contact visit with the father so that she might have him sign the children’s passport applications, I find, was not as unequivocal as it might otherwise have been. I concluded that she came to have some embarrassment about that event as she understood the destructive nature of the occasion to the relationship between the boys and the father. She should never have allowed that to happen and I am satisfied she clearly understands that now.

The father’s affidavit evidence

1. The father relied upon his affidavit sworn on 27 July 2017. He also relied upon two affidavits sworn by witnesses. One affidavit was that sworn or affirmed by Ms DD on 26 August 2016 and the other by Ms EE on 26 August 2016.

2. The father’s affidavit addressed the topics (headings) I had ordered to be addressed in each party’s affidavit. The father did depart from some of the evidence he had set out in his affidavit when he gave his oral evidence. One example related to where the children would be housed whilst they either lived with him or spent time with him. He had originally proposed that he would house the children in Sydney, in the area the children had lived before moving to the Central Coast with their mother. That proposal changed in oral evidence where he proposed that he would obtain accommodation (probably a unit) on the upper North Shore of Sydney, possibly in the Suburb X area. This he said would be in closer to the children’s school on the Central Coast. At some time in the future he proposed that he would purchase a house to live in. he did not close the door on the possibility of obtaining some accommodation on the central coast perhaps as a stepping stone in progressing to his ultimate plan to house the children in the Sydney area.

3. Although the father described Ms DD as his partner, he had no immediate proposal for her to live with him. Further, following Ms DD giving oral evidence in the hearing, the father informed the Court that she had been badly affected by the experience and she informed him their relationship was finished.

4. In relation to schooling for the boys, the father had proposed in his affidavit that the children could attend II School if they were to reside with him. That proposal changed to the father proposing to allow the children to continue at their current schools. He said he would see if he could enrol them in a private school at some future date. That proposal would be subject to his being able to afford same, however, he was confident that his financial circumstances were going to change in the near future.

5. The father proposed that he would involve the boys in a range of extra‑curricular activities.

6. Subject to safeguards, the father proposed the children should be able to travel overseas with each parent.

7. Under the heading “Parenting Ability” the father set out a number of concerns he held about the mother’s parenting capacity. The areas which were addressed and then featured in the oral evidence included whether the mother continued to suffer from debilitating anxiety, whether she failed to facilitate a relationship between the children and the father, and whether the mother had by her conduct or words created an emotional environment which made it impossible for the children to be able to have an ongoing relationship with the father and at the same time continue their close relationship with the mother. In relation to that aspect, the father labelled the mother’s behaviour as alienating the children from him.

8. Under the heading of “Anxiety” the father set out his allegations of behaviour of the mother which he suggests arose because she was anxious rather than there having been a proper rational basis for her complaints about him. There are a number of specific examples referred to, however, many were the subject of determination already made in the hearing before Justice Ryan or alternatively could have been aired in that litigation. I will not revisit those matters.

The 15 April 2016 Town U townhouse incident

1. There is one incident which was the subject of considerable attention during the oral evidence. That incident occurred at Town U on 15 April 2016. On that day I am satisfied the father had a chance meeting with Z in Town U. There was also interaction with the mother and J.

2. I find the following occurred.

3. At or about the time of the April 2016 school holidays, Ms EE offered her good friend Ms DD (a school teacher) and her friend Mr Seaward (the father) the use of her Town U unit. The father and Ms DD knew the unit as they had stayed there with Ms EE on New Years’ Eve 2015.

4. In April 2016 the father believed the mother and children lived in a property at JJ Street, Town U. That property is some distance from the unit owned by Ms EE.

5. Initially the father opposed the trip because he did not have time to take a holiday. Ms DD said he could study on the holiday. Although the father had a concern that he might “bump into” the boys, who were on school holidays, he considered on balance it was unlikely as he believed the mother took the children away on school holidays, or at least sent them to be with their maternal grandparents in Sydney.

6. On 14 April 2016 the father and Ms DD drove to Town U. They drove in Ms DD’s vehicle. On 15 April 2016 the father and Ms DD had a walk on the beach and breakfast on the way back to the unit. When they reached the unit they observed three children playing in the general yard area of the townhouse complex. The father recognised one of the children as Z. He spoke to him. Z went into a townhouse. Z said to the mother “Shithead is here”. The mother came out of the townhouse accompanied by Z. The mother said to the father “What the fuck are you doing here. You are breaching court orders”.

7. The father and Ms DD left the townhouse block and walked towards some nearby shops. The mother also left the townhouse block and walked towards the shops. She was looking for J.

8. Some short time thereafter the father and Ms DD came across the mother and J exiting a shop. J said to the father “Hi dad how are you going?” He was laughing. The father had spent supervised time with both boys the week before this meeting.

9. At one time when the mother and father were close enough to speak, the mother said “You are in breach of ‘effing’ orders and I am going to injunct you”. The father replied “See you in court.” The mother also said “we are all sick of this stuff.”

10. The father put to the mother in cross-examination about this incident “90 mins later I had a letter from your solicitors threatening legal proceedings. On the day you took a video of me on your phone. You sent a teenager to follow me. A teenage girl crouched down next to us in a shop.” She denied she had caused the father to be followed.

11. The father told the Court “I thought [Ms MacDuff] must have dropped off [Z] to spend time with a friend. The address I thought they were living at was two kilometres away.” I accept that evidence of the father.

12. The mother called the police. The father also called the police and spoke to them on the phone. When he called they already knew of the incident about which he was seeking to have a report noted.

13. The mother had her solicitors send a letter to the father by email. The father received it on his phone. Ms DD looked at the letter on his phone, however, she found it difficult to read.

14. The letter was attached to the mother’s affidavit at page 157. The letter informed the father he had breached the Court Orders by approaching the children’s home. (I accept the father did not know it was the children’s home on that day and so I find he had a reasonable excuse). The letter stated, inter alia:

    This conduct has caused our client grave concern and has resulted in significant distress to the children. We are instructed that [J] and [Z] have each informed our client that they do not wish to see you again and that [B] is refusing to return home as she does not wish to see you. As you are aware, [B] is in her HSC year and the impact of these events will be significant.

15. The letter, as worded above, could only have served to exacerbate the conflict between the parties and further draw the children into the conflict. To place on the father’s shoulders, by innuendo, that his visit would cause B to suffer loss of result in her HSC was, in the circumstance where I accept the father did not know the mother was living at that place, a mischievous act. I only hope that it was the doing of the solicitor rather than the repeating verbatim of the mother’s instruction.

16. The inappropriateness of the wording of the solicitors’ letter to the father was made plain by the statement “your companion indicated that you were staying with friends.” The letter requested information by 5.00 p.m. that day “as to whether you are in fact staying across from our client, or have entered into a rental or holiday rental of that property.”

17. The father responded to the email about an hour later saying “no breach has occurred.”

18. The father saw the mother leave the townhouse complex with her husband.

19. The meeting caused Ms DD great distress. She was shaken and in no fit state to drive back to Sydney. She and the father stayed the night at Ms EE’s townhouse and left the next day.

20. The mother had separated from her husband shortly before this incident and had moved to the townhouse complex. The father said, and I accept, he did not know the mother had separated from her husband and moved from their house in JJ Street, Town U. On the day he saw Z and the mother he thought Z was visiting a friend and the mother had dropped him off.

21. Prior to 15 April 2016 Z had told the mother there were occasions when he saw the father outside his school. On the day of the incident or shortly thereafter, Z believed that the father knew where he lived in the townhouse because he had followed Z home from school. I do not accept that was so. I do accept that the mother allowed Z to believe that for some time.

22. On 24 May 2016 the mother was interviewed by Mr BB, a Family Consultant. His report of the interview is contained in the Child Responsive Program Memorandum dated 16 June 2016. At paragraph 7 Mr BB reports, “[Ms MacDuff] said that she cannot believe [Mr Seaward] coincidentally arranged to stay at the same complex where she and the children are live (sic) and she believes that ‘he must have followed one of the boys home from school’.”

23. The mother told the children the father had broken the Court Orders when he attended at the townhouse complex. This was confirmed by J when he spoke to Mr BB (paragraph 21 of his report).

1. The father’s mother died in December 2014. He had wanted the children to attend her funeral, however, that did not happen.

2. The father says that B informed the Family Consultant Mr BB that the father is referred to as “shithead” in their home.

3. Prior to this year, the father had not received any Father’s Day, Christmas Day or birthday communication from any of the children for six years. As will be seen later in these reasons, the boys were probably embarrassed by the failure to provide a Father’s Day card or gift to the father as they had provided those items to Mr MacDuff. The father said that in the report from the supervisor of his time with the children on 13 September 2014, the mother laughed when told that the father was upset about Mr MacDuff receiving Father’s Day gifts from the children and not receiving any himself.

4. Annexure “M” to the father’s affidavit is a report of the 13 September 2014 visit. The last paragraph includes the following: “I [the supervisor] also mentioned [the father] was a little upset about not hearing from the boys over Father’s Day. [Ms MacDuff] laughed and said they had expected that.” I accept that occurred largely as stated by the supervisor. That behaviour does not reflect well upon the mother and exposes an aspect of her lack of concern for the consequence to the father of her actions.

5. The father relied upon reports of statements made by the children and recorded by supervisors during his visits with the children. In particular, he refers to the report of the visit on 27 February 2016 where J said he had recently found out he did not need to wait until he was twelve to stop attending the visits.

6. The reports of the father’s time with the children following the orders made by Justice Ryan (as compiled by the supervisors of his time with the children) are an important and reliable informant of observations and conversations. I have set out herein a summary of different reports and I have referred to specific quotes from those reports which assist in this determination.

7. The father included in his affidavit a heading “Alienation”. Under that heading the father set out submissions which refer to evidence which included statements contained in the reports from the supervised time he has spent with the children, the Family Report and the Child Responsive Program Memorandum. The evidence which the father has referred to, to the extent it is relevant to this determination, is set out elsewhere in these reasons.

8. At paragraph 71 of his affidavit the father has included a heading “Untruthful Nature”. Under that heading the father set out submission which addressed evidence. The father submitted that there were “dozens of comments from the children showing they have been misled.”  He gave, as examples, a statement made by J to Mr BB reported in the 2016 Child Responsive Program Memorandum. He is reported to have said he believed the father “stabbed a pregnant woman” and that is why he was gaoled. In relation to that statement the mother was cross-examined and she told the Court that when she read that report she did tell J that was not true. I accept that evidence of the mother.

9. The father submitted that the evidence of the mother and Mr MacDuff in the ADVO proceedings in the Local Court at Suburb G showed they had misrepresented to police that alleged “death threats” claimed to have been made against them by the father were of recent origin whereas the mother in evidence in that court admitted she was referring to a time in 2000. This allegation and the evidence given in the Suburb G Local Court was the subject of evidence and findings in the hearing before Justice Ryan. I will not canvas the facts in that case (the Suburb G Local Court) further in these reasons.

10. The father submitted that the evidence contained in the letter emailed to him on 15 April 2016 from the mother’s solicitor, which contained a suggestion that the father had followed the boys from their school to the new residence at KK Street, Town U and that is why he was able to know where the mother lived, showed what the boys had been subjected to in the nature of demonising the father. I note that there is no suggestion the father had followed the children in that email, however, it does state he had breached Order 15 of the orders made on 19 June 2013. The father replied to the email in a strident fashion asserting he had not breached the Court Orders. He did not otherwise address the matters raised in the email.

11. The mother reported the matter to police and the father also contacted the police on that day. The mother annexed to her affidavit a copy of an email she received from police informing her of the information obtained from the father. That information included that he was staying at a friend’s unit and did not know the mother had changed her residence. He said the mother was obliged by Court Order to inform the father of any change to the children’s residence.

12. The father submitted the children were permitted to believe the father had followed them from school. The mother said that Z had told her he had seen the father outside his school on occasions. This evidence will be addressed later in these reasons as I recite the oral evidence of the mother.

13. The father set out a heading “Impact upon the Children”. Under that heading he set out concerns he said he had. These concerns included that there was evidence he said to conclude that the children had severed their relationship with the entirety of the Seaward family. He submits that their estrangement from him has grown to a point where the children have wanted to remove the name Seaward from their surnames.

14. The father pointed to the annexures to his affidavit which set out the observation of the children’s time with him in the second half of 2013. He submitted that those observations show a positive and warm relationship between himself and the boys. That circumstance is no longer the case, a fact acknowledged by the father. It is the father’s case that the circumstance has arisen from the mother and her husband alienating the children from him.

15. The father nominated the visit of 24 March 2014 as the date the relationship between the boys and himself changed. He submits that the observation of the boys’ interaction with him, in terms of their showing affection to him, is quite different.

16. The father set out a heading “Impact on Father”. Under that heading the father set out how he had been affected by the breakdown of his relationship with the children. The father described how he and the children had been emotionally impacted by the issue of the recovery order made by the Court in August 2011. He says that from that time, the very close relationship he had previously enjoyed with B changed dramatically to a point where she would not even speak to him.

17. At paragraph 93 of his affidavit the father deposed:

    I do not believe this court wants to know how I or any other father feels. I am depressed every day without my children. I have many times thought life was pointless without my children. The sole reason I am alive is in the hope of being with my children. The failure to see my children effects (sic) everything I do in my life. I watch a news item where children have been hurt or killed I burst into tears. My friends tell me what they did with their kids on the weekend and I become very sad. I drive past a sportsground where kids are playing sport I’m almost inconsolable. I go running and start to think of my children and I often have to stop and vomit.

18. The paragraph above illustrates a parent in great distress grieving for the loss of association with his children. For my part I do acknowledge the anguish and debilitating impact on any parent who loses the love and respect of their child. The reported cases of this Court illustrate that the circumstance of the loss of a parent/child relationship is not unique to this case. The Court has, on occasions (thankfully rare occasions), been required to make parenting orders which require there be no communication between children and a parent, however, an objective reading of Part VII of the Family Law Act makes clear the intention of the Parliament that wherever it is safe to do so and not otherwise contrary to the best interests of a child, the Court should strive to ensure orders are made to enable and promote a meaningful relationship between children and their parents.

19. The father, between paragraphs 94 and 97 of his affidavit, sets out other matters arising from the breakdown of orders requiring he spend time with the children. He concludes by saying the following: “I have done everything to fix my life.”

20. The father’s affidavit then addresses factors relevant to s 60CC(3) of the Family Law Act.

21. The father submits the children’s views should not be given any weight because they have been alienated from him. The father submits that the mother permitting or encouraging the children to refer to him as “shithead” in her household is condemning of her parenting.

22. The cost of the father spending time with the children as supervised by P Contact Agency, he says, is between $800 and $1,000 per visit.

23. The father acknowledges that the separation of the children and their mother would be difficult for them; however, he submits that their long term welfare would be promoted by such an action. The father says he is a “health conscious” person and this would benefit the children should they live with or spend significant time with him. This reference to “health conscious” is probably particularly stated because of Z’s weight problem.  Further, he says he would not cut the children off from their mother as she has done to him.

24. The father says it is likely there will be further litigation involving the family, however, he says it will be initiated either by the mother or as a result of her actions. He asserts she and her husband have committed a criminal offence as he has set out in his affidavit. He deposed “I’ve reserved my rights with police on that action pending family court outcomes.” I have referred to this matter elsewhere in these reasons and in the hearing. It seemed to me the father was offering not to press that matter with the police if he was able to resume his relationship with his children. The father, in his oral evidence, denied that was the case.

25. In the latter part of his affidavit the father addressed his personal circumstances and what he considers a travesty of justice which required that he only be able to see his children in a supervised contact circumstance and on limited time basis. He says this all arose because he did nothing other than to act in a manner that any concerned parent would act having been told Mr MacDuff had physically abused Z. He deposed “I absolutely hated supervised time. I was beyond embarrassed to have a person tag along whilst I wanted to be with my own children.” (paragraph 120). He deposed “Supervision has made me feel like a paedophile and a second rate person.”

26. The father also set out the financial hardship he has suffered in order to be able to spend supervised time with the children on one occasion each month.

Oral evidence of the father

1. The father said he had seen a psychologist named Ms O. He had last seen her in 2014.

2. The father said that after the contact visit on 29 March 2014 when B attended and asked him to sign her passport form, his relationship with the boys changed. They no longer spontaneously wanted to hug him and also started to ask him questions. The father said he did not sign the forms because Country OO was on a “high alert” warning, and also because Mr MacDuff was destroying his relationship with his children. The particular incident with B at the supervised contact visit on 29 March 2014 is detailed later in these reasons.

3. Asked about his relationship with the mother he said “I don’t like her but I could co-operate with her.” He believes the children are aware of the poor relationship between him and the mother.

4. The father agreed the boys had said they do not want to see him, however, he did not concede that was their true desire. He considered that to overcome the boys’ attitude to him they would need counselling along with the mother and her parents.

5. The father said he was seeking to spend alternate weekends with the children to commence immediately, and then move to a week-about arrangement.

6. The father considered the children had been alienated from him by the conscious intent of the mother unconcerned by the long term impact upon the children. He believes the children are now alienated from him and, as a result, do not want to see him.

7. The father said he proposed counselling for the children “so they can have the false facts rectified.”

8. The father was asked about the letter he wrote to J dated 20 March 2017. This letter I consider an important piece of evidence because it was written by the father in close proximity to the commencement of this hearing. I will refer to the content of the letter further in these reasons. He was asked whether he would he write that letter again. He said he would not because he believed there was a better path which he is now proposing, namely counselling to rectify the “false facts”.

9. At the time of giving his oral evidence the father said that J had not telephoned him in six years.

10. The father was asked about paragraph 112 of his affidavit which addressed possible criminal proceedings being brought against the mother and her husband. He said he believed that the mother and her husband made a false representation to the parole board about him. He was very concerned about that action as he understood it put at risk his parole and that he could be returned to gaol. He appeared to harbour the view that at the time the mother and Mr MacDuff taken that action it was with the deliberate intent to have him sent back to gaol. He said that if the mother continues to keep the children from him, he will take up his rights with the police.

11. Since April 2012 the only work the father said he had engaged in was some consulting work. He earned about $10,000. He has also received an ex-gratia payment from the Government, however, he is not permitted to divulge the details. The father anticipates he will shortly have employment which would earn him between $60,000 and $100,000 per annum. He also anticipates there will be assets, which will come to him, which he can sell.

12. The father said he ascertained the mother’s current residential address (the house she now owns) by carrying out searches (as in Council and Land Titles Office searches).

13. The father said the children know his partner Ms DD, having seen her on occasions at supervised visits.

14. The father asserted that on supervised contact the children have asked to spend additional time with him and they were also observed (by him and the supervisors) to be sad at the end of spending time with him.

15. When asked about paragraph 35 of the Family Report, the father denied he had said he did not think the children would need counselling if they came to live with him.

16. The mother asked questions about events predating the orders of Justice Ryan. There was nothing of relevance to this hearing which emerged from that cross‑examination.

17. The father was cross-examined about his statement that he would have the children attend private schools if they lived with him. He said he would pay for the costs of such schooling.

18. The father was cross-examined about the content of the letter he sent to J dated 20 March 2017 (annexure “D” to the mother’s affidavit). He was asked if he thought it was an appropriate letter. He responded that he had “spent a lot of time and money” in obtaining advice about the letter before he sent it. He had shown the letter to Mr FF, psychologist, before he sent it.

19. The mother asked the father whether his questions to J and Z about their weight, as recorded in the contact reports, were appropriate. The father said they were when you considered the context.

20. The father was cross-examined about his treatment for depression. He was asked if he was currently seeing NN Psychology. He said he was not.

21. The father was asked about recommendations contained in a communication dated 15 April 2015. He was asked if he had attended upon a course titled “Circle of Security training”. He said he had not. He was asked if he had completed any parenting courses. He said he had not done a program, however, he had spent many hours with a psychologist. He had seen Mr FF.

22. The father was asked about the number of applications he had filed in this Court since the orders of Justice Ryan of 19 June 2013. He agreed there had been four contravention applications.

23. The father agreed that the last occasion he had time with the children unsupervised was in August 2011.

24. The father said he did understand that proceedings in this Court do emotionally affect the children. He also acknowledged that the children had significant involvement in the court proceedings which had been conducted in this Court.

25. In response to a question from the mother “Do you consider any of your actions have led to the children’s alienation?” The father responded “Only actions they have been led into or lied to about.”

26. The father conceded that a part of the emails he sent to B may have affected his relationship with her.

27. The father was asked about the way in which he had asked for dates upon which to exercise his time with the boys each month. On some occasions he provided only one date for the month and on other occasions he offered two dates. He agreed there had been occasions where the mother had offered dates even though he had not provided options.

28. In relation to the February 2016 visit the father was asked if he had said he would take the boys to the Sydney Easter show in March. He agreed he did say that. He had not done so and when questioned as to why, he said that the mother had set the time of the visit on a public holiday which meant there were very high loadings for payment of the supervisor and he could not afford that.

29. The father said he did not want to disclose his residential address because Mr MacDuff had threatened him.

30. The mother asked if the father had been involved in a court case with Mr PP in 2014. It was common ground that the father had been captured on television (perhaps interviewed) outside a court and he had shown the boys the recording which had appeared on television. The father said he was not in litigation with Mr PP, rather he had been at court to observe the proceedings. It is the mother’s case that Mr PP is a dangerous person.

31. The father said that if the boys were to live with him he would obtain accommodation in the Suburb X suburb of Sydney and he anticipated the rent would be $300 to $400 per week. The father said he would try to have the children stay at their present schools.

32. The mother asked if the father had researched where she lived prior to 15 April 2016. He said he had not done so for 12 months. He denied he followed or stalked the mother. He denied he stalked B and the maternal grandmother on 15 December 2016 when he saw them in a restaurant. He said, when he approached B on that day, she said “Fuck off” to him. He said he told her “I just want to wish you happy birthday”. She replied “you’ve done it.”

33. The father was cross-examined about the Town U incident on 15 April 2016. He was asked about the affidavit of Ms DD where she said the father was reluctant to go. The father was asked why that was. He said, “I didn’t have time. I was not on holidays but [Ms DD] was. I thought there was a remote chance the children could be in Town U.” The mother asked. “Did I look surprised when I saw you?” The father responded “You said ‘what the fuck are you doing here. You are breaching court orders’”.

34. In relation to a proposition put to the father that Town U was the place the children were most likely to be, he replied “not in school holidays”. There is other evidence to show that during school holidays the children frequently stayed with their maternal grandparents in Sydney.

35. The father was cross-examined about the minutiae of the movement of the mother and the father and the children on the occasion of 15 April 2016. I closely observed both the father, the mother and Ms DD as they were cross‑examined about those events and on balance I accept the father gave the most accurate account of what occurred. I conclude that the mother was shocked to see the father there and I consider that may have affected her recollection. In any event, there is not much of a difference in each party’s accounts.  The mother in her version suggests that the father was following her when she left to find J. I do not accept that was the case. I do accept their paths crossed, however, I do not find that was the intent of the father.

1. Before leaving this consideration I refer to a conversation I had with the mother towards the end of the trial. There is no doubt that the mother is entitled to conclude the father is a “difficult personality”. She is entitled to feel that he has made her life more difficult than was necessary, however, being a difficult person does not make him unique in our society. There are probably many like him. It is important for the children to understand that although he may be “a difficult person” to deal with, there are still many other aspects of him which they are entitled to be proud. It is the other admirable aspects of his person which the mother might use to help the children build their self-esteem and acceptance of the father. 

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

1. There are a number of questions which in my opinion require consideration at this point in these reasons. Those questions are:

   a)Is the relationship between the father and the boys now as irretrievable as his relationship with B?

   b)If not, what can be done to try and retrieve the relationship?

   c)To what extent can the father be relied upon not to involve the children in the ongoing battle he is having with the mother and Mr MacDuff?

   d)Is it realistic to expect the father to conduct a future relationship with the boys without his feeling compelled to delve into the past injustices and untruths which he considers he has suffered at the hands of the mother and Mr MacDuff and try and share his views about those matters with the children (as a form of righting untruths)?

   e)If some order was made which provided for some form of contact for the father with the children, is there any safeguard which could be put in place to save the children from any interaction (questioning in particular) with the father which had the potential to embarrass them or draw them into the parental conflict?

   f)To what extent can the Court take into account the impact upon the father of making an order which will see him having no meaningful relationship with the children perhaps during the balance of their childhood?

   g)What conclusions should be drawn, if any, from the mother ensuring the children provided to the father a Father’s Day card between the conclusion of the hearing of the evidence in this matter and the final addresses from the parties?

Is the relationship between the father and the boys now as irretrievable as his relationship with B?

1. The evidence from the Family Consultant Ms CC satisfies me that she had not concluded the boys were so alienated from their father that they could not countenance any prospect of any form of contact with him. The thrust of her evidence suggested that the boys found contact with their father problematic in many ways. To the extent it is necessary, I find the relationship between the boys and their father is not irretrievable. That is not say I conclude face-to-face time for the boys with the father can resume in the near future. I conclude that it will take time and therapeutic assistance for all concerned (the father, mother and each child) before it could be reasonably predicted that two-way communication could commence which might then transition to the boys spending time with their father.

2. The recent event of the mother being able to have the boys sign a Father’s Day card which she then delivered to him with a picture of the boys which she had inserted in the card, together with the phone call she was able to have the boys participate in with the father, satisfy me that the mother is actively trying to change things for the boys and the boys are not totally resistant to her efforts.

3. The father in his submissions was cynical about the mother’s actions involving Father’s Day on 3 September 2017. He seemed to infer that the mother had created the Father’s Day Card for the boys to provide to him and had also facilitated the phone call on 3 September 2017 only for the purpose of presenting herself in a false manner to the Court and thereby enhance her prospects of obtaining the end result she sought, namely that there would be no order for the boys to spend time with the father. I record here that I do not accept the mother acted in that manner or was motivated in that way. To start with, the mother heard the submissions of the Independent Children's Lawyer on Friday 1 September 2017 and she knew then, before arranging the phone call for the boys to call their father on 3 September 2017, that the Independent Children's Lawyer was pressing for there to be no order for the children to spend time with the father. Further, I accept the mother’s assurances that her participation in this hearing has given her a different perspective of the role she has played in the circumstance that now faces her children, namely of missing out on having the right of all children to know their parents and be able to enjoy a close bond with each, subject of course to their safety being a first priority.

If not, what can be done to try and retrieve the relationship?

1. There are a number of orders proposed by the mother and the Independent Children's Lawyer which I will consider later in these reasons which I consider will promote the boys, the mother and the father taking a different position in relation to the boys having a relationship with their father. If each of the mother and father truly intend the best interests of the children to be their guiding ambition then there is a real prospect for change in the circumstance the boys now find themselves in.

To what extent can the father be relied upon not to involve the children in the ongoing battle he is having with the mother and Mr MacDuff?

1. I consider there is hope that the father has changed significantly in important ways since the 2012 hearing and orders having been made in 2013. He informed the mother and the Court during the hearing that he no longer harboured anger towards the mother or Mr MacDuff. As such, it is easy to imagine how that will free up the father’s capacity to concentrate on the welfare of the children and allow him to work on making changes to the way in which he will interact with them into the future so as not to challenge the children’s loyalty to their mother and sister.

2. I do consider that it will be necessary for the father to obtain professional help in order to reframe his method of interacting with the children so as to avoid challenging subjects which he might otherwise seek to canvas with the children.

Is it realistic to expect the father to conduct a future relationship with the boys without his feeling compelled to delve into the past injustices and untruths which he considers he has suffered at the hands of the mother and Mr MacDuff and try and share his views about those matters with the children (as a form of righting untruths)?

1. I consider the father can be assisted by professional help to craft his interaction with the children to avoid particular conversations which he would clearly like to have with the children. So much is evident from the letter he wrote to J shortly before the hearing commenced before me (the letter is dated 20 March 2017). In that letter he raises matters which he had seen in the reports provided to the Court by Mr BB. He sought to provide J with “the truth” about particular events which the father considered had been misrepresented to J. That letter did not reach J as the mother considered it was inappropriate in some of its content. I have agreed with that view taken by the mother.

2. Clearly the father must understand, because he is, I believe, a highly intelligent person, that unless he is able to frame a letter to the children which will pass the mother’s scrutiny, he will have no communication with them by that means. I conclude it will be an important part of growing his relationship with his children that he is able to write to the children in a manner which covers topics and other matters which will be acceptable to the mother and also to the children.

If some order was made which provided for some form of contact for the father with the children is there any safeguard which could be put in place to save the children from any interaction (questioning in particular) with the father which had the potential to embarrass them or draw them into the parental conflict?

1. The father had the opportunity over a thirty month period to enjoy time with the children in a supervised contact arrangement where that supervision also gave rise to detailed reports of the interaction, including their conversations, which were made available for the Court and the mother to scrutinise. Even under those circumstances the mother has been critical of some of the conversations initiated and/or conducted between the father and the children. Details of some of that criticism is set out in these reasons. I have determined that the mother’s criticism of the conversations she specifically singled out was justified.

2. It is, in my view, not reasonable to make an open ended strict supervised contact order. Such orders create a highly artificial and non-family like environment which is very restrictive (deliberately so) on the interaction which can take place between the father and the children. The time of necessity is usually short (a few hours), it is expensive and the children frequently find it uninteresting and disruptive to activities they could otherwise be engaging in.

3. In this case supervised time has not worked for the children nor the father. He has felt humiliated and embarrassed by having to have his time with his children supervised. For a man who has had to serve prison time, as the father did in 2010, it must be for him akin to being treated as a criminal who is otherwise at large.

4. Given the present emotional state of the children as evidenced by the report from Mr BB I accept the mother’s evidence that she would not be able to coerce them into accompanying her to meet with the father for that time. I also accept that to force the boys to continue to spend time with their father in a strictly supervised environment would be counterproductive to the relationship between them.

5. For all the above reasons I would not be prepared to make an order for supervised time for the children to see the father.

To what extent can the Court take into account the impact upon the father of making an order which will see him having no meaningful relationship with the children perhaps during the balance of their childhood?

1. The father became emotional on a number of occasions during the trial. His most alarming presentation came during the final submissions where he informed the Court, in so many words, that if he could not have a meaningful relationship with his children then life ceased to be meaningful for him and he may choose another path. It was clear that the father was referring to the possibility that he could take his own life.

2. I spoke to the father about the impact upon the boys of their father dying by his own hand and I urged him to reconsider any such action. I urged him to seek professional support for his wellbeing.

3. The requirement to put the best interests of the children as the paramount consideration in the determination of a parenting case does not eliminate all other relevant considerations. The health and wellbeing of the children’s parents is a matter which the Court can and does take into account if it is relevant to the determination of a particular parenting case.

4. The psychological makeup and condition of a primary caregiver for small children is frequently a very relevant matter to which the Court has to have regard. The ability of the parent who will, of necessity, have the predominant care of the children, to emotionally cope with interaction with the other parent, will often impact upon the orders the Court will make because the children’s emotional wellbeing may be seen to be inexorably connected with the emotional wellbeing of that parent. Consequently, it is not uncommon to see orders framed which provide for the children to spend time with the other parent in circumstances where there is no actual contact (face-to-face) by the parents with each other and where there is limited or no communication directly between the parents. The orders which have operated in this case are a good example of how the Court can craft orders to avoid parental conflict.

5. I have a very clear understanding of the emotional pain the father feels arising from his inability to spend time with and have a meaningful relationship with his children. He has told me in a number of different ways how difficult and sad he finds that circumstance. It is a matter which I will take into account in a significant way when framing orders. It cannot, however, have greater importance than the culmination of all the matters the Court is required to take into account as prescribed by Part VII of the Act.

6. Even if it be the case that the father is not able to have face-to-face time with his children as a result of the orders I will make, there are still other ways that he will be able to ensure the children remain cognisant of his existence. The father could continue to write to the boys and provide them with information about his life. If that is done sensitively it could have the effect of softening the boys’ attitude to him and also that of the mother who already has shown a significant shift in her understanding of the importance for her sons of being able to know and enjoy a relationship with their father. Other orders can be made to support the children in progressing to a point where they are willing and able to have an enlarged form of contact with the father.

What conclusions should be drawn, if any, from the mother persuading the children to provide to the father a Father’s Day card between the conclusion of the hearing of the evidence in this matter and the final addresses from the parties?

1. I have referred to the circumstance of the mother delivering the Father’s Day card to the father on the last day of the hearing of the evidence in this matter and the day the Independent Children's Lawyer presented his submissions. As I have said elsewhere, I am very encouraged by what occurred. I am further, and perhaps more, impressed by the fact that the mother was able to have the boys speak to the father by telephone. In the circumstances of this case I consider that to be a major milestone.

Conclusion

1. Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified herein.

2. Given that the ambition of the legislation, and consequently this Court, is that the children have a meaningful relationship with each of their parents, it is to that end that the Court must seek a sustainable result. I have concluded that it is presently not a viable option to order the children to spend significant and substantial time with their father. I accept the evidence of the Family Consultant and the submissions of the Independent Children's Lawyer and the mother that the best interests of the children dictate there be a cessation of face-to-face time with the father. I am satisfied that any order which required such time to be spent would be unlikely to be complied with because the boys would rebel against their mother’s efforts to comply with the order.  The Court should not make orders which are doomed to failure as it will probably lead to further litigation and I conclude it will have a significant psychological impact upon the children.

3. The only tenable conclusion which can be reached at this time and which can be said to be in the best interests of the children is that they cannot presently tolerate any further face-to-face time with the father. I conclude that this circumstance has arisen not solely because of the actions and words of the father but also because of the words and actions of the mother. Both the parents share responsibility for the circumstances in which these children have found themselves. Those circumstances have been significantly canvassed in these reasons.

4. I conclude that the personalities and resolves of each parent are such that it is not possible in the foreseeable future to undo the damage they have each done to their children even if they were desirous of doing so. I am satisfied that the mother has allowed the children to have such a negative view of their father that Z is in fear of him. The father has been demonised in the mother’s household. In so finding I also find that the father has provided the foundation for such a circumstance to arise. His relentless negative view of the mother and her husband has caused actions which have given them cause to be vocal about him in the hearing of the children. B has become effectively an ally of the mother and her husband in what has become a battle between the parental groups. In those circumstances, even the strongest bonds which may have existed between the father and the children are unlikely to last.

5. I find that the only reasonably available conclusion to be reached is that while the children reside in a house with both their mother and Mr MacDuff and their sister, it will be not possible for them to express a desire to spend time with and to know their father and at the same time feel they remain an integrated part of the MacDuff family unless there is a radical change on the part of the mother.

6. The mother said that she experienced difficulties in having the boys attend upon supervised time with the father after B no longer had to attend. They would ask her why they had to go and B did not. She said she would suggest to the boys some activities she knew they enjoyed and which they might ask their father to participate in with them. She said after the April 2016 incident at Town U J said he would not go to supervised time any longer. Z said he was afraid his father would take him away. Over a three year period prior to April 2016, Z had said to his mother he had seen his father at his school. He also told police he had seen “that car” (referring to the car the father and Ms DD were travelling in) at the skate park where he had been the morning of 15 April 2016.

7. In response to questions about what J had told Mr BB where he said that the father “had stabbed a pregnant woman” the mother said she had since told J that was not true. She also denied she had told J that the father had breached orders on 15 April 2016 by coming within 15 kilometres of their home. She said that he may have heard her tell police that. She did not say she has since had told J the father had not broken the Court Orders on that day, nor had she told J that his father did not know the family had moved to that townhouse complex. I am satisfied that it has remained the mother’s view (at least until the hearing before me) that the father had, by surveillance or searching of some kind, ascertained she had moved residence and deliberately approached that residence.  I have found that was not the case. The mother’s level of suspicion of the father poses a significant problem for the boys who may well feed from what the father has referred to as the mother’s anxiety.

8. In paragraph 22 of Mr BB’s report, J is reported to have said “most of my family don’t want me to see Dad.” The mother said that was not true of either she or her parents. She conceded he would know what B’s view was. She said she has heard B speak about the father in the presence of the boys. B was also at the Town U townhouse on 15 April 2016 and the mother said she was very upset about the father being there. This evidence adds to the picture of the emotional environment in which the boys live with their mother and adds to the difficulty they will have being able to spend time with their father and still maintain the close relationship they have with their mother who is their primary caregiver and financial supporter.

1. In relation to Z’s concern that his father might take him away, the mother said she has not told Z that she could “get him back” if that occurred. That circumstance may well have added to Z’s insecurity.

2. In paragraph 26 of Mr BB’s report, Z is reported to say that both his “mum and step dad hate his dad and the feelings were mutual”. The mother denied she had told Z that. The mother has not told Z she does not hate his father.

3. In paragraph 11 of Mr BB’s report, B said that her father was referred to as “shithead” in the mother’s home. This was put to the mother. She admitted that was the case. It is noted that in the mother’s own affidavit she said that on 15 April 2016 when Z entered the unit and spoke to her he said “shithead is here”. The mother was asked how often the father is referred to by that name. She said it happens when they are upset. She said they have called her husband that name as well. The mother said she has banned the use of the word in her house. She denied B’s suggestion that the father was commonly called “shithead” in her house. In relation to that evidence it must be said that a household which permits the children’s father to be referred to by that very destructive appellation creates an obstacle to a relationship which is very difficult to overturn. The mother will now have to convince the boys, clearly over time, that they have a father of whom they are entitled to be proud and who has faced massive obstacles in life which he has now been able to overcome. It is probable that the children will be perplexed by a sudden change of attitude by the mother to their father and that will take some time for the mother to deal with.

4. The mother’s reaction to the appearance by the father at the Town U townhouse on 15 April 2016 in the presence of Z satisfies me she reacted as the father and Ms DD stated and that she did so oblivious to the presence of Z. That evidence, when added to all of the other evidence from the children illustrating they are privy to aspects of the disputes between the mother and the father, satisfy me that the mother has been prepared to make statements and engage in conversations which cast negative aspersions upon the father where she has been unrestrained by the presence of the boys and the impact that behaviour would have upon their relationship with him. I am satisfied the children now clearly understand it is not possible for them to have a relationship with their father and still remain loyal to their mother. I also have to draw the conclusion that Mr MacDuff has been unrestrained in his conversations in the presence of the boys about his adverse opinion of the father and that he is probably displeased by any mention of the father in his home. 

5. Added to the above, I also accept that B has no restraint on her statements made in the presence of the boys which statements illustrate her lack of respect for the father.  B appears to have felt she was able to tell her father to “fuck off” on the two occasions she met with him, one in March 2016 when she attended at supervised contact for the sole reason of confronting him about his failure to sign the passport forms, and on the occasion in December 2016 when the father saw her in a restaurant with her grandmother and wished her happy birthday. There was no suggestion by the mother that she spoke to B and chastised her about the use of that language when addressing her father. One conclusion may be that the mother approved of or accepted that behaviour as appropriate.

6. At one point during the hearing I challenged the mother as to how B felt empowered to speak to her father in that manner. The mother denied she had encouraged or authorised the use of that language.

7. There is now an inescapable conclusion that B has become an ally of the mother in the conflict between the mother and the father. As such, it seems most unlikely she would ever encourage either of her brothers to pursue a relationship with the father. Further, should either brother elect to do so, it is probable that B would consider such action with disdain.

8. Given all that has been said which is critical of the mother’s parenting of the children, what then of the prospect of changing residence or moving to substantial and significant time for the children with the father in an unsupervised manner.

9. It should firstly be said that continued strict supervision, as has been experienced to date, is not a viable proposition into the future because of its cost, the impact upon the father’s emotional state and self-esteem and the fact that it would have to be very limited. Also, as I have said, it creates an artificial environment for all concerned. If there is to be time with the father it needs to be significant, overnight and regular. It would also need to include time during school holidays. The alternative is to change residence so the children lived predominantly with their father.

10. The evidence convinces me that either a change of residence or an extension of time as envisaged in the prior paragraph would not be in the children’s best interests. The reasons for that decision can be summarised as follows:

    ·The father has not put forward a firm proposal as to where the children would be housed.

    ·The father’s final position in the hearing about schooling is that he would keep the children at their current schools for the time being, however, he would want to move them to a private school in the future and that could be in the North Shore area or at least in the Sydney metropolitan area. The children would have therefore to adapt to a new school and new friends. The father did say they would have friends from their prior associations, however, it has been some considerable time since the children were at school in the Sydney area.

    ·The father has not established that he has the financial ability to support the children. He is studying for a degree and has a limited ability to earn income at the present time. He believes that may change in the near future, however, nothing was in place at the time of the hearing.

    ·I am satisfied that to move from the Central Coast to Sydney would be disturbing for each child who appears to be happy with their present schools, sporting arrangements and friendship groups.

    ·I am satisfied the move would create a degree of trauma for each child, however, for Z that would probably be almost overwhelming. He has, I accept, a genuine, yet unnecessary, fear of his father. He was very young when he last lived in a house with both his parents and as such, given the relatively small amount of time he has spent in the care of his father, I am satisfied it will take significant time to build the type of loving, secure and trusting relationship that Z will need to have with his father.

    ·At this time it is not possible to reasonably be satisfied the father is capable of interacting with the boys in a manner which will not draw them into the conflict which still exists between himself and the mother and Mr MacDuff. I am concerned that the father still harbours a desire to “straighten the record” by making sure the boys know “the truth” about matters of family history which the father understands they have been misinformed about. Such an educative process may well be very destructive to their psychological wellbeing as, if accepted by them, would paint their mother and Mr MacDuff in a very bad light.

    ·There is a high probability both boys would run away from the father at the first opportunity. It is probable that force would now be required to physically move J from the mother’s care to that of the father.

    ·If the orders were only for contact there is a high probability neither boy would cooperate by voluntarily attending.

    ·If there was a change of residence it would of necessity require a period of time where the boys would have no contact with the mother so that they could settle into a new relationship with the father. I am satisfied that would be traumatic for both boys but in particular Z.

11. The above sets out a summary of the main reasons it would not be in the best interests of the children to live with the father or spend unsupervised time with him. There are other reasons set out throughout these reasons which I have not specifically included in the dot point list above, however, they do add weight to my decision.

Section 61DA

1. This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.

2. The presumption does not apply where there has been family violence.  In this case there has been family violence as has been set out earlier.

3. Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.

4. The section further provides in sub-section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.

5. In this case I have concluded that there are reasons why the best interests of the children require that there be a continuation of the order made 19 June 2013 that the mother have sole parental responsibility for the children.

6. The same reasons which led Justice Ryan to conclude an order for sole parental responsibility was required, dictated by what she assessed as in the children’s best interests, still exist at this time, with perhaps in some areas less intensity.

7. I conclude that the parents have no current capacity to be able to discuss reasonably and in a child focused manner the types of considerations which cooperative, well intentioned parents are able to do, even though they chose to be no longer cohabiting.

Section 65DAA

SECTION 65DAA(1)-(4)

1. This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.

2. I have resolved not to make an order for equal shared parental responsibility rather I have concluded an order for sole parental responsibility is required.

3. I will next look at the statutory requirement to make orders for the children to spend time with each parent.

SECTION 65DAA(5)

1. This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility. The section also requires the Court to consider other configurations of time for the children to live with and spend with each parent or relevant person.

2. As has been seen in the earlier parts of these reasons, both the Independent Children's Lawyer and the mother press for the Court to make an order that the father spend no time with the children, and also make orders which prevent the father contacting the children of his own motion even where he might come across the children in an unarranged or intended manner.

3. I have concluded that in order to ameliorate a circumstance where the wrongs which have been perpetrated against these children by each of their parents and other significant persons, it is in the children’s best interests that a raft of orders be made which I consider will give the children the best chance they have (if any) on restoring a proper parent/child relationship with their father. I will consider the orders I have been asked to make by each parent and the Independent Children's Lawyer below and from that consideration formulate and determine what orders the Court will make to fulfil its mandate under Part VII of the Act.

The Orders to be made

1. I propose to craft orders, some of which are sought by the parties and some of which I consider are necessary to promote the best interests of the children by creating an avenue for them to have a meaningful relationship with their father in the future.

2. I propose that the order for sole parental responsibility, which the mother currently has, will continue. Given the parents’ inability to be able to communicate at a reasonable level, I consider this to be the only viable alternative. Lest it be said by the father that the unsatisfactory level of communication only exists because the mother refuses to communicate directly with him, I find that even if she changed her position at this time, it is still unlikely the parents will be able to communicate effectively so as to ensure a workable level of communication to enable shared parental responsibility of any nature. Such is the result of a very lengthy period of extreme parental hostility and distrust.

3. I propose that the children live with the mother. I propose to order the children have no time with the father otherwise than may be specifically permitted by the orders. Such an order, although being the worst of outcomes for the father, is, I am satisfied, absolutely necessary in order to allow the children to develop in an emotional environment which is not inculcated with tension and hatred arising from parental conflict and continuing litigation between the parents. Further, I consider it is very much in the interests of the children as it will create the best environment for them to be able to change their views or concerns about the father and/or their stated intentions not to spend any time with him.

4. Should either of the children seek from their mother any form of contact with their father, then I propose to craft orders which will require the mother to facilitate that contact. Such contact will need to be bounded with clear terms of how, where and when such contact will be facilitated and the mother will need to set out those matters in writing. The father will be required to confine his contact with the child/children within those specific written terms.

5. I am satisfied that if the children are to have any chance of changing their position about seeing their father or communicating with him then both the children and the mother will need professional assistance in the nature of therapy. I propose to order that to occur.

6. There will need to be restraints and safeguards surrounding the order for the children to participate in counselling/therapy and the involvement of the children in that interaction with professional assistance is not to be labelled as “restoration therapy” or “family therapy”. The children’s best interests require that the person providing the service determine what areas/subjects should be canvassed. The professional will need to have some background information to be able to work efficiently with the children. To that end I will order the mother to provide to the professional specific documents.

7. It is important that the father be provided with copies of school reports and other documents which emanate from the children’s schools to parents. That will continue to provide the father with information about the progress of the children both socially and academically. It will provide the father with a connection with the children and be a foundation of knowledge which will be important should the children be able to seek out their father after they become adults.

8. For the same reasons as above outlined, I propose to require the mother to provide the father with a written report on the first day of each month, which report will provide the father with information about the activities of the children and general progress in life. Again, this will enable to father to have a slight connection with the children and will mean that should contact occur in the future it will not be in a circumstance where the father has no knowledge of the children’s lives during the period of absent relationship.

9. I am satisfied that unless the children are shielded from future conflict between the parents during their childhood, the prospect of them wanting to seek their father and have a relationship with him in the future will be limited. Even accidental or incidental meetings can have far reaching consequences for the children as has been seen in this case. Thus an injunction will be made restraining the father to ensure incidental meetings do not escalate.

10. A point of dispute between the parents in the past has been whether the mother should be able to take the children out of Australia for holidays. The father says the dispute has been narrower than that. He says his concern has been about the place the mother has chosen to take the children. That is he says it is a matter of safety. Whatever the case, there have been applications made to the Court by the mother to have orders made permitting her to take the children outside Australia. As the mother will have sole parental responsibility, I propose to make an order permitting her to remove the children from Australia for the purpose of overseas holidays. There will be restrictions on the places she can take them, those restrictions governed by Australian Government warning levels.

11. Alongside the ability to take the children out of Australia on holiday the mother will be able to renew their passports without the formal consent of the father. That will remove a further point of potential conflict.

12. I propose to restrain the mother from allowing the children to be privy to or overhear derogatory statements about the father. Further, I propose to make orders which will require the mother to obtain from her husband an undertaking not to make derogatory statements about the father within his interaction with the children or within their hearing. I also propose to order the mother to use her influence to try and ensure that B does not infect the children with her adverse opinion about the father.

13. The Independent Children's Lawyer has agreed to continue to be appointed in order to assist the Court with the implementation of the Court’s orders. I propose to so order.

14. Should the children request a meeting or communication with their father the mother is to facilitate same. An order will be made to ensure that occurs.

15. It is important, given the age of the children and otherwise, that the children have an independent avenue to contact their father. To that end the father is to provide contact details to the Independent Children's Lawyer who is to meet with the children and provide them with those details.

16. I propose to order that the father may communicate by mail with the children on one occasion each month. He will also be permitted to send the children birthday and Christmas presents. The mother will have the capacity to withhold any letter which she considers will upset the children or expose them to parental conflict. Should the mother withhold any letter during the currency of the continuing role of the Independent Children's Lawyer then she is to send to the Independent Children's Lawyer a copy of that correspondence which she has withheld.

17. I propose the Independent Children's Lawyer will see the children following the making of the orders to explain the orders and provide a simplified and age appropriate description of the reasons contained herein. The Independent Children's Lawyer is further to answer, where appropriate, any questions the children might have about the orders or the reasons or any other aspect of future contact with their father.

18. I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding six hundred (600) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 13 October 2017.

Associate:

Date:  13 October 2017