SUFFOLK & MOZZA

[2018] FamCA 536

FAMILY COURT OF AUSTRALIA

SUFFOLK & MOZZA [2018] FamCA 536

FAMILY LAW – CHILDREN – Where the mother seeks an orders for sole parental responsibility and for the children to spend no time with the father – Where the father seeks orders for equal shared parental responsibility and reintroduction to the children with the aid of a therapist – Where there are allegations of physical violence, intimidating behaviour and verbal abuse of the children by the father – Where interim orders for supervised time were not implemented by the mother or father – Where the children have not seen the father since June 2014 and a situation of ‘realistic estrangement’ exists between the father and the children – Where the father has been excluded from participation in any decisions concerning the children – Where the children have expressed the view that they are strongly opposed to contact or communication with the father – Where forced reintroduction to the father might jeopardise future prospects of reconnection – Court finds the presumption of equal shared parental responsibility is rebutted – Orders made for the mother to have sole parental responsibility – Orders made for the children to attend therapy – Orders made allowing the father to send letter to the children’s therapist for them once every twelve months – No orders made for the children to spend time with the father.

FAMILY LAW – CHILDREN – Relocation – Where the mother seeks an order for relocation – Where the mother provided no evidence in relation to order sought for relocation – No order made.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 65DAA

MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Suffolk

RESPONDENT: Mr Mozza

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 5905 of 2014

DATE DELIVERED: 20 June 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 20 and 25-26 July 2017 and 1-2 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Brien

SOLICITOR FOR THE APPLICANT: Campbell Paton & Taylor

COUNSEL FOR THE RESPONDENT: Ms Bridger with Ms Webb

SOLICITOR FOR THE RESPONDENT: Baldock Stacy & Niven

INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW

Orders

1. All existing orders in relation to the children:

   ·X born on … 2003 and

   ·Y born on … 2016

   (“the children”) are discharged.

2. 2.1      The mother has sole parental responsibility for the children.

   2.2Within seven days of her making any decision in relation to the long-term care, welfare and development of the children, the mother will advise the father by email of such a decision.

3. The children will live with the mother.

4. The mother will consult a therapist (“the children’s therapist”) agreed by her and the Independent Children’s Lawyer (“ICL”) for the purpose of providing therapy for the children in relation to the following matters:

   (a)to assist the mother in the raising of the children

   (b)to allow each of the children to express any concerns they may have independently of the mother and the other child

   (c)to address any developmental or other issue that may arise

   (d)to advise each of the children that they are at liberty to communicate with the father but that they will not be compelled to communicate if they do not wish to do so

   (e)to assist either of the children with such communication in the event that they wish to do so

   (f)to receive and hold any letters or other correspondence that the father may forward to the children

   (g)to advise the children that they are at liberty to read any correspondence sent by their father if they wish to do so

   (h)any other matter pertaining to the children’s welfare at the discretion of the therapist.

5. The children’s therapy will take place at a frequency and for a duration as determined by the therapist.

6. The court notes that the children’s therapist will be at liberty to liaise with the ICL who has leave to provide the children’s therapist with a copy of:

   (a)       the orders and judgment herein

   (b)       the report of the Single Expert, Dr B.

7. The mother will facilitate the children’s and her attendance upon their therapist at such times and places as may be requested by the therapist.

8. The mother will advise the ICL and the father’s solicitor of the date of the children’s first appointment with their therapist.

9. The father will have no contact with or communication with either of the children other than in accordance with these orders.

10. The father is at liberty to send to the children’s therapist any letters or cards for the children once in every 12 months.

11. The court notes that the father is at liberty to engage with the children’s therapist if he wishes to do so.

12. In the event that the father elects to consult his own therapist in relation to parenting matters, he has leave to provide the therapist with a copy of the following:

    (a)       the orders and judgment herein

    (b)       the report of the Single Expert, Dr B.

13. In the event that the mother elects to consult her own therapist in relation to parenting matters, she has leave to provide to the therapist:

    (a)       the orders and judgment herein

    (b)       the report of the Single Expert, Dr B.

14. 14.1    Within seven days of these orders or within seven days of the children’s enrolment at a new school, the mother will do all things necessary to authorise the principal for the time being of the school to provide the father with copies of the children’s school reports, newsletters and photographs.

    14.2The father is restrained from approaching the children’s school without the prior written consent of the mother.

15. The mother is restrained from changing the children’s names from “Mozza” or permitting the children to use any other name.

16. Each of the parties is directed to file and serve written submissions within 21 days in relation to the application of the ICL that the father pay her costs of $6,590.27 and the mother her costs of $8,240.27 and the court will then determine this issue in chambers.

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 Suffolk & Mozza 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: SYC5905/2014

Ms Suffolk

Applicant

And

Mr Mozza

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The proceedings

1. Ms Suffolk and Mr Mozza are the parents of two children:

   ·X born in 2003 (14) and

   ·Y born in 2006 (12).

   The children’s parents refer to them as “X” and “Y” and I will do likewise in these reasons.

2. The mother and the father are also parties to litigation concerning financial issues, arising from a breakdown of their de facto relationship.  This litigation also involves members of the paternal family and will be heard and determined independently of the parenting proceedings.

3. The applicant mother sought the following orders:

   1.That the mother have sole parental responsibility for the care, welfare and development of the children, [X] (dob …2003) and [Y] (dob …2006).

   2.That the mother keep the father informed of any major decisions respecting the children.

   3.The children live with the mother.

   4.The children spend time no time with the father.

   5.On two occasions each year, at or around each child’s birthday and in the lead up to Christmas, each child, assisted by the Child’s therapist with input from the mother or written by the therapist and the mother if the child refuses to take part, send a letter to the father providing relevant news about the child’s development and life and to include a photograph of the child.

   6.The father be at liberty to send a letter to each of the children in response to the letters referred to in paragraph 5 above.

   7.The mother be at liberty to relocate with the children.

   8.One year after the date of these orders, and in the event the father continues to be in communication with the children by writing, each child be informed of the option for them to increase their communication with or time spent with the father if they wish provided any therapist the children is seeing at the time deems the staging of that to be appropriate.

   9.The mother and the children consult a therapist (psychologist or clinical social worker of child and adolescent psychiatrist) skilled in providing parenting advice and family and individual therapy and the therapist receive a copy of the final orders made and the report of [Dr B] dated 24 March 2016.

4. The respondent father sought the following orders:

   1.That the Father and the Mother retain equal shared parental responsibility for the long term care, welfare and development of the children:

   FULL NAME(S)  DATE(S) OF BIRTH

   [X]  … 2003

   [Y]  … 2006

   (“the children”)

   2.That the long term care, welfare and development of the children includes:

   (a)education including primary, secondary and tertiary;

   (b)health care, medical, psychological and other therapeutic care

   (c)dental issues;

   (d)religious observance;

   (e)sporting, cultural and social activities; and

   (f)travel including the obtaining of a passport

   (g)Surname by which each child is called and known.

   3.That in respect of each issue concerning the long term care, welfare and development of the child the Father and the Mother shall:

   (a)consult with the other person by way of text message and/or email in relation to the decision to be made; and

   (b)make a genuine effort to come to a joint decision about that issue.

   4.That the Father may communicate forthwith with each child:

   (a)by way of letter, email or other electronic means including social media and the Mother is to provide the address and/or email address to which the Father may send letters or other written communication to the children as well as access in relation to social media which the children use.

   (b)by telephoning the children each Wednesday at 6.00 pm by making the call to the Mother’s mobile phone number and that the Mother is to provide forthwith to the Father her mobile phone number.  The Mother is [to] provide all reasonable assistance to enable such communication to take place.

   5.That the Mother is restrained from not providing to the children any letter or other written correspondence sent by the Father to the children.

   6.That the Father and the children attend counselling with a therapist who is skilled in providing family and individual therapy twice a week for a period of 8 weeks, with such therapist to be arranged by the Independent Children’s Lawyer.

   And the Court Notes:

   That the therapist is not to be a person who has had contact with the Mother and/or children or is otherwise known to the Mother and/or children and

   7.That the Father and children attend counselling until such time as the therapist, in his/her written opinion (such opinion to be provided to the parties and the Independent Children’s Lawyer and the conclusion of 8 weeks), considers necessary.

   8.That the Mother is restrained from attending upon, speaking to or having any contact whatsoever with the therapist.

   9.That the Mother is to ensure that the children attend upon the therapist at all times and places as arranged by the therapist.

   10.That the Father is to be solely responsible for the payment of the costs of the therapist.

   11.That the children spend time with the Father as follows:-

   (a)After a period of 8 weeks from the date of the Orders, for a period of 8 weeks for 3 hours each Sunday and for 2 hours each Wednesday afternoon from the conclusion of school.

   (b)That the time referred to in 11(a) take place at the home of and be supervised by the Father’s sister-in-law [Ms C Mozza].

   (c)Thereafter for a further period of 8 weeks from 10 am to 4 pm each Sunday and for 2 hours each Wednesday from the conclusion of school at the father’s home.

   (d)Thereafter for a further period of 8 weeks:

   (i)in weeks 1 and 3, each Sunday from 9 am to 5 pm

   (ii)in week 2, each Saturday and each Sunday from 12 noon to 6 pm

   (iii)in week 4, each Sunday and each Saturday from 9 am to 5 pm.

   (e)Thereafter for a further period of 8 weeks:

   (i)in weeks 1 and 3, from 4 pm Saturday to 5 pm Sunday

   (ii)in week 2, on a Saturday from 12 noon to 6 pm

   (iii)in week 4, from 9 am Saturday to 6 pm Sunday.

   13.That at the conclusion of the period of 42 weeks referred to in orders 6 and 11, the children live with the Father as follows:

   (a)Each alternate week from after school Friday to the commencement of school on the following Friday

   (b)For half of each school holiday period including the Christmas school holidays at times to be agreed between the parties or in the absence of agreement to commence at 5.00 pm on the date that the school term ends and to conclude at 5:00 pm on the day half way through the holidays.  During the school holidays the arrangements in sub-paragraphs (a) will be suspended.

   (f)[sic]Such further or other times as agreed between the parties from time to time.

   14.That notwithstanding anything stated in paragraph 13, the Father and the Mother shall each spend time with the child on each of the following special days:

   (a)If the Father would not otherwise spend time with the child on Father’s Day, with the Father from 10 am to 4 pm on Father’s Day or otherwise as agreed.

   (b)If the Mother would not otherwise spend time with the child on Mother’s Day, with the Mother from 10 am to 4 pm on Mother’s Day or otherwise as agreed.

   (c)for half of Christmas day at times to be agreed or in the absence of agreement:-

   (i)in 2017 and each odd year thereafter:

   (A)with the Father from 5 pm Christmas Eve until 2 pm Christmas Day.

   (B)with the Mother from 2 pm Christmas Day until 5 pm Boxing day.

   (ii)in 2018 and each even year thereafter:

   (C)with the Mother from 5 pm Christmas Eve until 2 pm Christmas Day.

   (D)with the Father from 2 pm Christmas Day until 5 pm Boxing day.

   15.That the children live with the Mother at all other times.

   16.That the Mother have sole responsibility for making decisions about the children’s day to day welfare, care and development when the child is in her care.

   17.That the Father have sole responsibility for making decisions about the children’s day to day welfare, care and development when the child is in his care.

   18.That the Mother is restrained from taking the children to or permitting the children to attend upon any psychologist including but not limited to [Ms D], psychiatrist or other therapeutic health professional who the Mother has consulted, spoken to or with whom she has had dealings in the past in relation to the children.

   19.That the Mother is restrained from taking the children to any doctor or other medical/health professional unless such medical or other health professional is by way of referral from either [Dr E] or [Dr F], Paediatrician, and in consultation with both the Father and the Mother.

   20.That the Father and the Mother are to arrange for a referral for the children to consult with [Professor G], Psychiatrist, for the purposes of an assessment in relation to an assessment of each child.

   21.That the Father and the Mother are to make all necessary enquiries jointly in relation to the children attending mainstream school at the commencement of Term 1 in 2018 and jointly make all arrangements in regard to the school(s) the children are to attend and failing agreement on the school then the Father and the Mother are to ensure that the children are to be enrolled at the nearest State primary/high school to the Mother’s place of residence.

   22.That the Father pay for a tutor(s) to assist the children to be ready to attend the agreed mainstream school at the commencement of Term 1 in 2018.

   23.That the Mother is restrained from contacting, speaking to or having any dealings whatsoever with the engagement of, and each child’s attendance with, the tutor(s) engaged by the Father to assist the children.

   24.That the Mother is to ensure that each child attends the tutor(s) at such places and times as arranged by the tutor(s).

   25.That the Mother is to consult with a therapist to address her own personal, relational and mental health issues.

   26.That each party shall forthwith notify the other of any medical or other emergency affecting the children or either of them.

5. The Independent Children’s Lawyer (“ICL”) proposed the following orders:

   1.The children of the marriage namely, [X] born … 2003 and [Y] born … 2006 shall live with the mother.

   2.The mother shall have sole parental responsibility for the children.  However within 7 days of making any decision in relation to the children’s long term care, welfare and development, the mother shall advise the father via email of the decision she has made including in relation to any medical matters.

   3.The mother shall consult an agreed therapist (‘the children’s therapist’) nominated by the Independent Children’s Lawyer for the purpose of providing therapy for the children in relation [to] the following matters:

   a.to assist the mother in the raising of the children;

   b.to allow each of the children to express any concerns they may have independently of the mother and the other child;

   c.to address any developmental or other issue that may arise;

   d.to advise each of the children that they are at liberty to communicate with the father but that they will not be compelled to communicate if they do not wish to do so;

   e.to assist either of the children with such communication in the event that they wish to do so;

   f.to receive and hold any letters or other correspondence that the father may forward to the children;

   g.to advise the children that they are at liberty to read any correspondence sent by their father if they wish to do so;

   h.any other matter pertaining to the children’s welfare at the discretion of the therapist.

   4.Such therapy shall take place every 6 months or more frequently at the discretion of the children’s Therapist and shall continue for each child until they attain the age of 16 years.

   5.The court notes that the children’s therapist shall be at liberty to liaise with the Independent Children’s Lawyer who has leave to provide the children’s therapist with a copy of:

   a.the orders and judgment herein,

   b.the report of the Single Expert, [Dr B].

   6.The mother shall facilitate the children’s attendance upon their therapist at such times and places as may be directed including attending personally if so requested.

   7.The mother shall advise the Independent Children’s Lawyer and the father’s solicitor of the date of the children’s first appointment with their therapist.

   8.The father shall have no contact with either of the children other than in accordance with these orders.

   9.The father shall be at liberty to send to the children’s therapist any letters or cards for the children and such communication shall take place every 12 months.

   10.The court notes that the father is at liberty to engage with the children’s therapist if he wishes to do so.

   11.In the event that the father elects to consult his own therapist in relation to parenting matters, the father shall have leave to provide the therapist with a copy of the following:

   a.the orders and judgment herein,

   b.The report of the Single Expert, [Dr B].

   12.The mother shall consult a therapist (hereafter ‘the mother’s therapist’) to address the personal, relational and mental health issues identified by [Dr B] in his report;

   (a)the mother shall attend upon her therapist on at least a monthly basis for a period of 12 months from the date of these orders and thereafter every 2 months for further period of 1 year and thereafter, as may be recommended by her therapist;

   (b)The mother shall be at liberty to provide her therapist with a copy of:

   a.the orders and judgment herein,

   b.the report of the Single Expert, [Dr B].

   (c)The mother shall authorise her therapist to consult with the children’s therapist in relation to her treatment.

   13.The mother shall have leave to relocate the children’s residence outside the L Town area.

   14.Within 7 days of these orders or within 7 days of the children’s enrolment at a new school, the mother shall sign the appropriate authority to authorise the school to provide the father with copies of the children’s school reports however the father shall be restrained from approaching the children’s schools without the written consent of the mother.

   15.That each parent be and is hereby restrained from:

   a.discussing with the children the options they may have pursuant to these orders;

   b.discussing these proceedings with or in the presence or hearing of the children and they shall use their best endeavours to ensure that no other person does so;

   c.showing the children any document pertaining to the proceedings;

   d.denigrating the other parent to or within the hearing of the children.

   16.That the mother be and is hereby restrained from changing the children’s names from ‘Mozza’ or from permitting the children to use any other name.

   17.That the mother pay to Legal Aid NSW the sum of $8,240.27 (eight thousand two hundred and forty dollars and twenty-seven cents), being the mother’s share of the costs of the Independent Children’s Lawyer, within 28 days of the date of these Orders.

   18.That the father pay to Legal Aid NSW the sum of $6,590.27 (six thousand five hundred and ninety dollars and twenty-seven cents), being the father’s share of the costs of the Independent Children’s Lawyer, within 28 days of the date of these Orders.

   19.That the order for the appointment of the Independent Children’s Lawyer continue of a further period of 12 months.

1. Regrettably, the children last saw the father in June 2014, in circumstances which must have been stressful and very upsetting for them and both parents.  During the trial, much time and effort was devoted to each parent’s attempt to blame the other for the breakdown of the relationship between the children and the father.

Background

1. The mother and the father, who are aged 54 and 50 respectively, met in 2001 and began to cohabit in 2002.  They separated on 6 June 2014, after having lived together for approximately twelve years.  The parties had separated previously for a period of approximately three months in 2007.  The children have lived with the mother at all times since the separation and, as noted, they have not seen the father for approximately four years.

2. The mother has three children from previous relationships:

   ·Ms H born in 1980 (38)

   ·Mr J born in 1985 (32) and

   ·Mr K born in 1997 (21).

   Mr K lived in the household of the parties from the age of 4 years and uses the surname “Mozza”.  Mr J also lived in the parties’ household for a period.

3. Initially, the parties lived at a home in L Town which was owned by the mother.  In 2007 they moved to a rural property at M Town, where the father’s family conducts a business of fruit growing and farming.  The paternal grandparents live in a house which is close to the home occupied by the parties, the children and Mr K during the relationship.

4. There was no issue that both X and Y are special needs children.  In his report of 24 March 2016 the single expert, Dr B, described the special needs of the children and their implications as follows:

   178.There are two extreme possibilities here, and a range between these two, in terms of defining the degree to which ASD is a factor in the outworking of the child-parent relationships.

   179.At one extreme, it would be the view that both boys have quite significant ASD and related developmental difficulties, and that the boys’ behavioural, emotional and relational difficulties and difficulties with adaptation to life, all arise from that ASD, and that the mother’s responses are sensitive and appropriate in that context, having maximised the wellbeing and functioning of the boys, and will be expected (gradually over time) to ameliorate and address each child’s difficulties.

   180.At the other extreme, would be the view that the boys are neurotypical, that is they do not have significant ASD features, and that their behavioural, emotional and relational difficulties arise from adverse life experience, including from relative maternal incapacity and specifically from poor maternal emotional containment, poor boundary-setting, low maternal expectations, and the maternal accommodating approach.

   181.I note that the mother does not ascribe to the first extreme.  Whilst she asserts that both children have significant ASD, she also recognises the impact upon them of environmental factors, specifically the children’s past adverse experience of the father.

   182.I think it is likely that the two boys do have ASD, though of a lesser severity and with less direct impacts than is the mother’s formulation of the issues.  Specifically, in my view the children’s aggressive and violent behaviour at home, and their “school refusal” and reactivity upon return from school or other societal obligations outside the home, has to a large part been precipitated and perpetuated by the children’s experience of maternal relative incapacity and by insecure attachment styles in the child-mother relationships, in the context of paternal influences also and the negative impacts of the parental relationship.

   183.Both children have been diagnosed with ASD after professional assessment.

   184.[X] was diagnosed with Asperger’s Disorder (high functioning ASD) at age 4 ½  in December 2007 by [Dr F], paediatrician.  [X] was described at that time as antisocial, irritable and aggressive, particularly if approached or if there was a change of routine.  He had restricted interests.  ‘time out’ and reward programs were said not to work.  This diagnosis was made mostly upon the mother’s report.

   …

   187.[X] had psychometric testing (Stanford Binet) in October 2008, suggesting average intellectual capacity, but learning difficulties, in expressive communication.  Further psychometric testing (WIAT-II) in August 2013, with [Ms N], psychologist, finding overall low average academic capacity, but variability in terms of a strength in written and oral expression and vulnerability in reading comprehension and pseudoword decoding.  This type of “patchiness” or variability in test results is common in children with neurodevelopmental difficulties such as ASD.

   188.[Y] was diagnosed with Asperger’s Disorder (ASD) at age 4 ½ in November 2010 by [Ms O], psychologist.  This is a detailed report, that includes report from the mother, but also observations at playgroup, and the ADOS structured observation of the child.  In the ADOS, abnormalities are noted in [Y’s] eye contact, nonverbal communication, social verbalisation, reciprocal conversation and social responsiveness.

   189.[Y] had psychometric testing (WPSI III) in October 2011, showing average intellectual capacity.  There is reference a letter [sic] from [Dr F] in September 2013 to [Y] having “mild intellectual disability” identified in “testing by [Ms P] 3 months ago”, but I did not see this actual testing in the documents.

5. Dr B made the following observations:

   193.At interview, I did not find either [X] or [Y] showed overt evidence of autism.  Neither showed qualitatively unusual patterns of posture, body movement or eye contact.  Both appeared quite reciprocal and responsive and contextual in conversation, in the family group and also one to one.  Neither appeared notably concrete in their responses, or perseverative in their interests.

   194.But, such a “negative” finding in single interview is not uncommon in higher-functioning ASD, and does not discount the diagnosis.

6. In 2009 X began to attend M Town School.  He was a pupil at the L Town School in 2012 and 2013 and then commenced a distance education program.  Mr K and Y also participated in the distance education program.

7. In 2011 Mr K became ill, which caused him to spend three months at Q Hospital.  During that time X and Y stayed with the father on the farm.  The father received assistance from a family friend, Mr R, during the final two weeks of that period.  Mr R is a retired clergyman who has known the mother since 1988.

8. When the parties began to live together in 2002, the mother’s son Mr J was part of their household.  He began to use illicit drugs in 2003 and stole money from the mother to fund his addiction.  Mr J moved out of the parties’ home in mid-2003, allegedly after numerous disputes with the father.  The father maintained that he tried to help Mr J to deal with his difficulties.

9. The mother alleged the father subjected Mr J, Mr K, X and Y to physical violence, intimidating behaviour and verbal abuse.  Largely, the father denied these allegations although he admitted that he shouted at X and Y and smacked them through their clothing.  In final submissions, counsel for the father contended that “no finding is available that [he] perpetrated violence”.  I will consider these allegations and the availability of such a finding below in these reasons.

10. Early in 2014 X and Y attended upon a psychologist, Ms D.  It appears that they made statements in relation to alleged violence on the part of the father to Ms D and other health care professionals.  As required by statute, these mandatory notifiers informed the Department of Family and Community Services (“FACS”) of these allegations.

11. On 6 June 2014 police officers and FACS workers attended the family home.  With no prior notice whatsoever, the father was informed by police that he was required to leave the premises.  It appears that the father went to stay at the home of his parents.

12. On 6 June 2014 a provisional Apprehended Violence Order (“AVO”) was taken out against the father for the protection of the mother, Mr K, X and Y.  On 16 June 2014 the order was varied such that the mother was the only protected person.  X and Y subsequently were added to the order as persons in need of protection.  The Order was varied so as to provide that the father was permitted to enter the farm property for work purposes.

13. On 27 June 2014 the father was arrested at the home of his parents, after the mother alleged that he breached the AVO.  There was a dispute between the parties as to the events on 27 June 2014 which led to the arrest of the father.  He contended that he attended the farm and found that a padlock had been cut off a shed which contained farm machinery, chemicals and the children’s motor bikes.  He claimed that he simply secured the shed with a new padlock and left the property, without any contact with the mother or the children.  The mother alleged that she saw the father throw the children’s bikes out of the shed in their presence.

14. The father defended the charge of breach of AVO, which was withdrawn by police on 12 December 2014.  At the same time the father consented, on a “without admissions” basis, to a final AVO for a period of twelve months.

15. In August 2014 the mother and children moved into a “safe house” and the father returned to the home at the farm.  The mother now seeks an order which would permit her to relocate with the boys away from the area of L Town.  There was little or no evidence as to her proposals for this contemplated relocation.

16. In October 2014 the mother was diagnosed with cancer.  In 2014 and 2015 she underwent treatment which consisted of surgery and radiotherapy.  At various times, the father cast doubt upon the genuineness of the mother’s statements that she had been diagnosed with cancer.

17. On 17 November 2014 the father filed an Application in a Case, by which he sought interim orders that the children spend time with him for two hours per week at the S Contact Centre.  Such orders were made by the Federal Circuit Court on 15 December 2014 but the parties failed to complete the intake process.  The mother maintained that she expected that Interrelate staff would contact her but conceded “I received the orders but did not do anything”.  The father conceded “Yes, I did nothing about the order for supervised contact”.

18. The Child Support Agency has assessed the father’s liability at $35 per month for both of the children.  The mother complained in her affidavit “I am not sure why he has chosen to not properly support his children for the last three years.”  That assertion was incorrect, apparently to the knowledge of the mother.

19. The father deposed that he first offered to pay a total of $100 per week as child support in September 2014.  The father’s proposals to pay child support in excess of the assessed amount were set out in solicitors’ letters dated 9 September 2014, 3 March 2015 and 17 May 2017.  When asked to comment on these letters, the mother said only “I was not aware that it was an option.”

The evidence and witnesses

1. The applicant mother relied on the following affidavits:

   1.        Ms Suffolk (the mother) sworn on 12 July 2017

   2.        Mr K (the mother’s son) sworn on 3 July 2017

   3.Mr R (friend of the mother) sworn on 4 July 2017

   4.Mr T (friend of the mother) sworn on 5 July 2017.

   All of these witnesses gave oral evidence by way of cross-examination.  With respect to Mr T I was not assisted by his evidence, which was historical and related to events which took place prior to 2014.

2. The respondent father relied on the following affidavits:

   1.        Mr Mozza (the father) sworn on 17 July 2017.

Approach To These Proceedings

1. In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests. 

2. The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1)).  If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5) of the Act. There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:

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

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

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

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

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

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

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

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

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

   Subsection (3) explains what is meant by the phrase “substantial and significant time.”

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

   …

   13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

   …

   15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …

The best interests of the children:  Section 60CC considerations

Section 60CC(2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section 60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

1. In reality, the children have no meaningful relationship with the father at this time.  Aside from incidental encounters in the city of L Town, the children have not seen the father since 6 June 2014.  On that occasion, the father was removed from the family home by police officers and FACS workers.  Understandably, the father was very angry on this occasion as he had no forewarning and was required to leave the premises immediately.

2. In my view it is highly likely that the children have been left with a memory of their father in a very angry and aggressive state when they last were in his presence.  In an application for an AVO dated 6 June 2014, police officers included the following:

   Whilst in the presence of police [MOZZA] has became [sic] abusive towards the two female community services workers.  His demeanour changed dramatically at this time and he was acting much more aggressively towards the two females than he had to any of the police during the evening.

3. Dr B addressed directly the likely effect upon the children of an ongoing estrangement from the father and the paternal family.  He reported as follows:

   570.The children are already adapted to their current separation from the father and paternal family.  But, this absolute separation contributes to the elaboration of fear, awkwardness beyond what may be necessary.  In my view, some reconnection with the father and the paternal family over time, if only by letter, but hopefully progressing to some time spent, on the boys’ terms but with adult guidance and facilitation, would be a positive thing for the boys.

1. The mother made serious allegations that the father subjected her, X, Y and Mr K to family violence.  Mr K swore an affidavit and gave oral evidence in relation to the father’s alleged treatment of himself, X and Y.  Notably, however, Mr K acknowledged some positive conduct and attitudes on the part of the father in his oral evidence.  Overall, Mr K was an impressive and persuasive witness.

2. Mr K deposed that the father hit and swore at him and threatened to hang him by his ears to a clothesline.  In my view, he was not shaken in his evidence in cross-examination.

3. In his affidavit Mr K deposed inter alia:

   17.Dad would regularly be losing the plot at one of us kids.  When he did, he would pick up the closest object to him and start screaming and try to hit us.  When he did hit us, it was usually wherever on the body he could get to, it would at the time leave bruises/welts or red marks.

   This evidence was not challenged in cross-examination. 

4. Mr K deposed further:

   8.Dad was often verbally abusive and threatening.  When I was younger, I had large ears and dad’s most frequent threat was “If you don’t fucking stop I’ll hang you up on the clothesline by your fucking ears”.  I was always fearful that dad would act on this threat.  The threats and emotional abuse continued even after I got too big for dad to physically discipline me.  He would still come up behind me and give me a “clip around the ears” essentially a smack to the back of the head.

   When asked about this evidence in cross-examination Mr K said:

   I remember vividly dad holding me by the ears and threatening to pin me to the clothesline by my ears.  It hurt a lot.

5. Mr K deposed that the father hit and swore at X and Y and, in my view, he was not shaken in this evidence in cross-examination.  For example Mr K deposed as follows:

   20.The greatest issues in the household, however, involved dad and [X].  I recall one time when [X] got into one of the sheds and dad lost the plot.  [X] was always trying to get into the shed and dad’s solution was to put a padlock on the shed.  This was not a viable solution however as he left the keys in the same spot which was known to, and accessible by, [X].  [X] also managed to get into the shed from other points which could not be padlocked.  Each time that [X] went into the shed, dad would yell at him and hit him.  I recall that on one occasion, when [X] was about 9 dad threatened him “If you go in there again, I’ll fucking booby trap it so you die!”  At no time did I ever see dad explain to [X] why he was not allowed to go into the shed or the dangers that the shed presented.  Despite knowing of [X’s] obsession with the shed, dad would never let him go into the shed and help out.

6. When asked about this evidence in cross-examination, Mr K said “Neither mum or dad liked us going into the sheds.  I often went in to get my motorbike.  I agree it was reasonable for dad to get angry but it was the way he handled it.  Dad said this – it has stuck with me.”

7. Mr K gave oral evidence as to his perception of the nature of the father’s relationships with himself, X and Y.  He said:

   I thought dad and I had a relationship where we loved each other but it was never said

   and

   My perception was that [Y] was quite scared of dad, the relationship was rarely positive

   and

   [X] idolised dad but it was much the same relationship as [Y].

8. As noted, Mr K acknowledged some positive aspects of the father’s attitude and behaviour during his oral evidence.  For example he said:

   I agree that he has a strong work ethic, I admire that.

   and

   He took me driving once and paid for a lesson.

   and

   He paid for my ute’s rego on the farm’s bulk insurance.

9. Mr R deposed that the father swore at and smacked X, when the child’s problematic behaviour made him angry.  Mr R deposed to an alleged incident when the father struck Y, while the mother was in Sydney during Mr K’s hospitalisation, and he was in the family home to assist with the care of the children.  He stated:

   49.One night during this period, I was lying in bed in the room adjoining the bathroom.  [Y] was sick with diarrhoea and I could hear [Mr Mozza] try and get him to the toilet.  [Y] did not make it in time and defecated on the floor.  I heard [Mr Mozza] yelling at [Y], telling him not to move and so poor [Y] was standing in his faeces.  When [Y] tried to move, [Mr Mozza] hit him with full force to the bottom and the legs, with his hands which left marks on [Y’s] body.

   50.I remember that night vividly and the assault on [Y] has left a lasting imprint on me.  I felt so powerless to help [Y].  I considered calling the police but did not do so because I thought they would side with [Mr Mozza] as the father.  I was also concerned that if I became involved, [Mr Mozza] would order me out of the house which meant that I would no longer be able to help [Ms Suffolk] and care for the boys.

10. In cross-examination, however, Mr R said of this incident:

    When [Y] had diarrhoea I did not get out of bed.  I don’t know whether [Mr Mozza] put him in the shower.

    Mr R said also:

    I heard a hand smacking a backside only once.  The father said not to be a sook.  Next day I did not look to see if [Y] had any marks on him.

11. With respect to Mr R, he appeared to suffer from a memory impairment as he gave his oral evidence.  In fact, he said at one point in his
    cross-examination:  “I have a memory problem.”  The accounts he gave of this incident involving Y in his affidavit and oral evidence did not fit comfortably together.

12. The mother deposed that “During the course of our relationship I was subjected to emotional, verbal and psychological abuse” by the father. She made no complaint that the father subjected her to physical abuse. The mother’s allegations as to her treatment by the father would fall within the statutory definition of family violence as set out in section 4AB of the Act.

13. The mother attended a health care facility known as U House between approximately 2002 and 2010.  The notes made by U House staff (Exhibit 26) contained repeated reference to the mother’s unhappiness in the relationship with the father.  For example, on 1 May 2009 Dr E noted “She gets little understanding or empathy from [Mr Mozza] and feels totally emotionally isolated.”  The notes of 18 March 2008 stated “Marriage problems issues with de facto relationship deteriorated and they are no longer able to communicate.  Fighting with each other ↓ self-esteem mood but functioning well.”  These notes contained references to the father’s emotional abuse of the mother.

14. On 30 May 2014 psychologist Ms D noted:

    [Ms Suffolk] reported that [Mr Mozza] has been very verbally abusive towards her in front of the children.

    [Ms Suffolk] reported that she has seen a solicitor to try and get an order for [Mr Mozza] to leave the house but has been told there are no guarantees that they can do this.  [Ms Suffolk] reported she has asked [Mr Mozza] to leave but [Mr Mozza] says “it’s his fucking house”.  [Ms Suffolk] reported she believes that [Mr Mozza] knows that she is stuck there.

15. It seems to me that past incidents of conflict between the mother and the father are now of only historical significance and probably were indicative of the dysfunctional nature of their relationship.  I consider that the mother was unhappy and dissatisfied in her relationship with the father for several years prior to the separation and that the father was oblivious to her feelings.  I am of the view that findings in relation to the allegations of family violence perpetrated upon the mother by the father are unnecessary to the outcome of these proceedings.

16. I am satisfied, and I find, that the father struck Mr K, X and Y on occasions prior to the separation.  I consider that it is likely that the father struggled to deal with the children’s challenging behaviour, particularly that of X.  It seems likely that the father then resorted to swearing and inappropriate physical discipline.

17. On the proposals of the mother and the ICL, there would be no need to protect the children from abuse, neglect or family violence as there would be no
    face-to-face contact or direct interaction with the father.  His proposal would culminate in unsupervised time in his care.  The children, however, are now some four years older than was the case in 2014 and it might be expected that they are much more capable of protecting themselves from any physical and/or verbal aggression on the part of the father.  Additionally he proposed that the boys are reintroduced to him in a therapeutic context, which would ensure their safety.

Section 60CC(3) considerations

1. I will refer only to those considerations set out in section 60CC(3), which are relevant to the present proceedings. Some of these matters, such as section 60CC(3)(h), obviously have no relevance as the children are not of Aboriginal or Torres Strait Islander descent.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The children have told the mother, Mr R and Dr B that they do not want to spend time with the father.  Emails sent by X to the ICL between November 2017 and 23 February 2018 express in very strong terms their opposition to communicating or spending time with the father.  Extracts from these emails are set out below in these reasons.

2. Mr R deposed as follows:

   58.[X] has repeatedly said to me that he does not want to see his father.  When I was driving in the car with [Y] recently, out of the blue he stated that he never wanted to see his father again.  The boys do talk to me from time to time about their experiences with their father.  I do not bring up these conversations with the boys, but will talk to them if they raise the topic.  It is my impression that these conversations are an attempt by the boys to make sense of their experiences.

3. This evidence is obviously defective as to form but is admissible, subject to weight, pursuant to Division 12A of the Act. Similarly, oral evidence given by Mr R as to his conversations with the children are admissible subject to weight. In his oral evidence Mr R said words to this effect:

   [X] has told me that he wants to kill his father.  [X] and [Y] told me that about six weeks ago.  It is not the first time they have told me that, also around the separation.

4. The mother deposed to various statements made by the children to her in which they expressed fear of the father.  For example, the mother deposed as follows:

   265.If the boys mention [Mr Mozza] and it is never positively.  I’ve tried saying things to them like “Okay now give me three fun things you did with dad”.  Sadly the boys respond with negative experiences.

   …

   269.The one thing that the boys have consistently said to me over the last 8 months is “Mum it’s still better than living with dad.”

   …

   271.[X] had devised a detailed plan of how and when he would kill [Mr Mozza].  [X] had worked out how he would get himself to [M Town], where and how he would kill his father, and then how he would kill the remainder of [Mr Mozza’s] family.  Regular emotional or environmental triggers will cause [X] to talk about this.  The boys become so angry and distressed if I mention [Mr Mozza’s] that I have found it is not helpful to their emotional state to talk about their father, unless the boy’s [sic] bring him up, and then it is usually better to divert the conversation to something more positive.

   This evidence of the mother similarly is defective as to form but admissible, subject to weight, pursuant to Division 12A of the Family Law Act.

5. Dr B reported as follows in relation to the stated views of the children:

   574.On the day of the interviews, [X] said to me of his upcoming afternoon interview with the father and myself “I just want to talk to dad … to say, ‘just leave us alone.”

   575.    With regard to arrangements, he said, “I never wanna see him”.

   576.If [X] did have to see the father (I put to him this hypothetical), he would prefer to do so somewhere where “there is a grown up watching him”.

   …

   578.[Y] was glad that the adults decided.  In fact, he would want mum to decide.  He would be worried, that if he has to go to dad, that would upset mum.  He would be sad.  He would miss mum a lot, and dad might not let him have a TV.

   579.If [Y] had to decide, he would live with mum, and not see dad, because “I don’t like him”.  I asked whether [Y] was frightened of the father.  [Y] said, “Yes … he’s mean … he’s terrible … I hate him … he’d never let us have the windows down in summer, in the ute.”

   580.If [Y] had to see his father, he would want to do so “with both of my brothers”.  He would whisper into his brother’s ear.

6. Dr B was of the view that the children’s stated wishes should carry some weight.  He opined as follows:

   581.In my view, the children’s developmental needs should outweigh their wishes.  But, if (as is my view) the children’s wishes are consistent with their developmental needs, then their views should be given weight.  In addition, if (as is my view) the children’s positive stance towards the mother arises mostly from their experience of kindness and adequacy in her care, and their negative stance towards the father arises mostly from their experience of abuse and neglect in his care, then their views should be given weight.

   In his oral evidence Dr B added that:

   The boys would be assisted if they perceived that the court attached significant weight to their wishes.

Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

1. Dr B observed X and the father together on 18 December 2015 and reported as follows in relation to their interaction:

   373.When [X] met the father in my office, the father came towards X with the physical offer of a hug.  [X] accepted this offer, with apparent awkwardness, but with some softness in his body.  One arm was holding a sick-bag, but the other gave the father a reciprocal pat on the back.  This was a brief hug of greeting, which the father initiated and also pulled away from, for each to take a seat.  I felt that this was an appropriate response from the father … not to linger too long in the hug considering [X’s] awkwardness.  This may have been a sensitive paternal response.

   374.Overall, I observed that the father was quite child-focussed, warm and gentle with [X] during the interview.  The father was patient with [X] even though [X] was rejecting of the father, and I did feel that [X] softened a little during the interview, in response to this approach from the father.

2. The mother informed Dr B that Y refused to get out of her car and enter his office.  Dr B thus was unable to observe Y’s interaction with the father.

3. The trial of this matter proceeded in two tranches, during July 2017 and March 2018.  By agreement reached in July 2017, the ICL attempted to deliver cards containing letters and gifts from the father to the children.  The boys refused to accept these cards, letters and gifts.

4. The ICL described her unsuccessful attempt to deliver the father’s cards, letters and gifts to the children in a letter dated 22 November 2017 to Dr B.  She wrote, inter alia:

   Upon handing over the cards, letters and gifts from the father to the children, the children tore up the letters and cards and declined to accept the gifts.

   The ICL indicated that she had received a further request from the father to pass on cards, letters and gifts to the children and she sought the advice of Dr B as to whether she should do so.

5. Dr B replied, inter alia, as follows:

   … a situation where a child is able to recurrently enact disrespectful destruction of a parent’s communication is not good for the child’s character development nor for the child’s current or any future relationship with the parent who is sending the communications.

   Dr B recommended that the father write to the children every six months and that the ICL not hand over these communications to the children if they “clearly have a hostile disposition … and speak of destroying them.”

6. On 14 November 2017, 8 January 2018, 17 January 2018, 22 February 2018 and 23 February 2018 X sent emails to the ICL and the paternal grandmother (Exhibit 22).  In these emails X expressed very firm opposition to any communication or contact with the father or the paternal grandmother.  These emails read inter alia as follows:

   14 November 2017

   We never want to have any contact with him what so ever and the only time I ever get mad, is when I talk about that coward of a man.  Can you please forward this to [Mr Mozza] and can you please stop trying to get [Y] and I to read his stupid letters.  We are tired of having to see people and tell people that we don’t want to see him.  I have been to three people about this and I am never going to anyone again not even you because none of you listen to us and for the last time tell him to leave me alone please.

   8 January 2018

   It disgusts me to be related to such a horrible person let alone be known as his son  I want to make this VERY CLEAR I don’t want to be known as his son  I never want to be his little boy and I don’t consider him AS A DAD  he is selfish and as for you do your job and stop him.  It is the most annoying thing in the world to be related to him you said to me you would tell him to stop and take those Facebook posts down but you didn’t they are still up there I am very upset with you because you told me you would do something.  I feel betrayed by you because you lied and did nothing to stop him.

   17 January 2018

   Mum had told me that he knew he had to stop doing it because he knows we don’t like it at all, but he hasn’t stopped or taken them off.  He does not care how any of this makes me feel, and I feel so angry I want to smash a table over his head because he won’t listen to me.  He is the biggest joke on this earth because if he really cared about me he would stop.  The only reason he puts this stuff on Facebook is so people feel sorry for him.  HE DOES NOT LISTEN TO HOW HE IS ALWAYS HURTING MY LIFE BY THE STUFF HE KEEPS DOING.

   22 February 2018

   Dear Nona

   …

   This isn’t [Europe] it’s Australia, and in Australia we respect women and children.  Now that I am bigger I can say what happened to us, that you and the rest of the bunch were never there for us, and you never told them to stop.  Everything that they were doing to us and to you was wrong, and it’s domestic violence which is not okay … Why can’t you understand this I never want to see you because you are people that think abuse is okay.  Please leave me alone and never call me, never write to me and never come up and try to TALK TO ME in the shops because I don’t want to see you and I never will.  Goodbye forever and NEVER EVER contact me.

   P.S:  I never want to be known as a [Mozza], I am [X Suffolk] not a [Mozza], because I don’t want to be related to people who think that domestic violence is okay.

   23 February 2018

   I want you to show my emails to the judge I want the judge to know how [Y] and I feel and what this has done to us.  We are so sick of having to think about this stuff or talk about it.  Me and [Y] haven’t had a normal childhood and we just want to grow up like other kids.  We don’t want to see [Mr Mozza] or any of the family ever and we are sick of people trying to make us and we get angry and feel sad about this stuff because no one listens to us.  Domestic violence is not okay and no one can force me and [Y] to see people that hurt us.

7. It appears to me that X had adult assistance with the composition of these emails.  In my view it is most unlikely that he crafted his statements concerning “domestic violence” and “abuse” without input from an adult.  Dr B agreed with that proposition and commented as follows:

   I think it unlikely that [X] wrote [the email of 14 November 2017] unaided but there is an element of immature petulance.  At a minimum he has had adult input in putting it together.

1. Dr B offered a similar view in relation to the emails of 8 January 2018 and 22 February 2018.  Likewise, Dr B considered that “it is unlikely that [X] wrote this unaided” in relation to the email of 22 February 2018.  He added that “it is consistent with what I met in [X].”

2. Dr B assessed that a situation of “realistic estrangement” exists between the children and the father.  He opined as follows:

   113.It is my impression overall that this is a case of the “realistic estrangement” of children from a father who at a minimum was disengaged from and intolerant of the children and unresponsive and disrespectful to their mother, but who probably also was emotionally and physically abusive towards and neglectful of the children.

   In his oral evidence Dr B elaborated that “realistic estrangement arises from a child’s lived experience”.  He explained that the result is “a total rejection of that parent”.

3. Dr B offered these opinions as to the nature of the relationship between the children and the mother:

   116.This is an attachment relationship, as the children look to the mother to meet their needs and to protect them from harm.

   117.There is some foundation of security in these child-mother attachment relationships, as the children have experienced the mother over time as reliably and intensely committed to them, having positive intention in relation to them, responsive to and kind to them, and able to meet their basic needs for food, shelter, acknowledgement and engagement.

   118.But, I observed that there is also significant insecurity in these child-mother attachment relationships.  This insecurity has arisen from maternal personality and mental health vulnerabilities, from developmental difficulties in the children making them harder to raise, and from the impact upon the mother and children of the father’s personality vulnerabilities and (I think likely), from paternal abusive and neglectful behaviour towards the children, and from the children’s experience of the difficult parental relationship.

4. Dr B opined further as to the nature of the relationship between the children and the mother:

   213.I think it likely that in a context of maternal incapacity and inconsistency, the children (particularly [X]) developed
   anxious-ambivalent attachment patterns of relating to the mother.

   214.In an anxious-ambivalent attachment relationship, the child adapts to inconsistently attuned or adequate parental care by amplifying the signal of need and thus coercively engage in the parent, in order to meet the child’s needs.  This often involves escalation of negative emotion in the child, and coy/needy or demanding/aggressive behaviour.

5. It is thus well evident that the children currently harbour a very negative view of the father and that they have a non-existent relationship with him, albeit that X displayed some “softness” during the meeting with Dr B.  The children look to the mother exclusively to meet their needs but Dr B identified problematic aspects to the maternal relationship.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

1. The mother levelled considerable criticism at the father for his alleged failure to involve himself in the children’s health problems and developmental difficulties prior to the separation.  It does appear that the father was challenged by the diagnosis of ASD and did not participate adequately in decisions concerning the children’s medical and developmental issues.

2. Since the separation, however, the father effectively has been excluded from participation in any decisions concerning the children’s care, education and general wellbeing.  The boys have refused any contact or communication with him and the mother largely has failed to provide this information to the father.

3. The mother did send a letter to the father in December 2016, via their respective solicitors (Exhibit 8).  This letter provided the father with comprehensive information concerning the children’s education, extracurricular activities and health during 2016.  Regrettably, there was no evidence of any similar correspondence from the mother to the father during the previous three and-a-half years since the parental separation.  Notably, the mother wrote to the father that “This letter is not for the purposes of the court, nor do I wish it to be used in that arena”.  Nonetheless, the letter was tendered in evidence in the case for the mother.

4. The mother wrote directly to the father on 1 June 2015 (Exhibit 3).  Essentially, the mother castigated the father in this letter over a number of issues but provided him with very little information in relation to the children.  Notably, this letter was written by the mother to the father at a time when he was subject to a final AVO for her protection.

5. In my view, both parties can reasonably be criticised for their failure to implement the Orders for supervised time made on 15 December 2014.  Neither the mother nor the father gave any satisfactory explanation for this failure to implement an Order of the court.  It is a matter of speculation whether implementation of these Orders would have resulted in more favourable family dynamics at the present time.  There is no doubt however that the parties and the children lost that opportunity because of the conduct of the parents.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. I have referred above to the disingenuous evidence given by the mother in relation to the father’s willingness to provide proper financial support for the children.  It seems abundantly evident to me that the mother was content to leave the court with the impression that the father was prepared to allow her to shoulder almost the entire burden of the children’s financial support after the separation.  As noted above, however, the father has been prepared to pay $100 per week per child from approximately September 2014.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. I have referred above to the expert evidence of Dr B in relation to the likely effect upon the children of an ongoing estrangement from the father and the paternal family.  In summary, Dr B opined that this “absolute separation” is contrary to their interests and that a degree of reconnection would be “a positive thing for the boys”.

2. In his oral evidence Dr B said “It is hard to find a foundation on which to start a relationship with the father”.  Dr B explained that he felt conflicted between a recommendation for no communication at all between the father and the boys and the undesirability of allowing a 14 year old to assume an absolute position of resistance to any form of contact.  Dr B said ‘It is not necessarily a good thing for a 14 year old to be told “yes, you got everything you want”’.

3. I have referred above to the opinions expressed by Dr B in relation to the children’s reaction to the attempt by the ICL in November 2017 to pass on cards, letters and gifts from the father to the children.  Dr B was asked about the implications for the children if they were to accept the father’s gifts but reject him as a figure in their lives.  He said words to the effect “It is very bad for the kids to reject [the father] but take his gifts”.  He said that, conversely, “tearing things up every six months makes the potential for reconnection worse”.

4. Dr B was asked to comment on the father’s proposal for a graduated reintroduction of time for the children with him in conjunction with therapy.  He opined as follows:

   ●With the children’s current partisan stance, it is highly likely that something like this will fail

   ●if you did this, the mother would have to meet the therapist

   ●my concern is that it is likely to be an enactment against the father, it is likely to damage future prospects of re-attachment

   ●these kids are hardwired now, to amp against adult systems.

5. The mother proposed the significant change of a relocation of the children away from the L Town district.  There was no evidence as to her proposals for a new life for the children in a different location.  No submissions were put on behalf of the mother in support of this vague proposal, although Dr B supported a relocation from L Town.

6. A move away from L Town would mean that the children would be separated from their current treating health professionals.  In the past, however, the mother has proved adept at securing proper professional assistance for the children and I am confident that she would do so effectively in a new location.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. While the mother and the children continue to live in the L Town area, there are no practical difficulties with communication and time with the father.  It is impossible to make any findings as to practical difficulty or expense, if the mother and children live elsewhere.

Section 60CC(3)(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

and

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The father is untested as a sole carer for the children, other than for the three month period in 2011 when the mother was in Sydney during Mr K’s hospitalisation.  Overall, it seemed to me that the father is well-intentioned toward the children but lacks the necessary interpersonal and parenting skills to deal sensitively and effectively with their needs.  Although Mr R conceded that he has memory problems, I accept largely his account of the difficulties which the children encountered with the father during this period in 2011.

2. In my view, some concerns arise from the incident in 2009 when Y suffered a fractured arm while in the father’s sole care.  The mother deposed that she left the family home for approximately 40 minutes and returned to find Y crying and in pain.  She deposed that the father told her that he had fallen off a stool and hurt himself but “he was ‘just sooking’”.  Mr R was present and deposed that the father said to him “he’s just tired and sooking”.

3. The father denied that he made these statements and deposed that he, the mother and Mr R together decided to take Y to hospital.  The father conceded in his oral evidence that Y was “distraught” and “cried for about an hour”.

4. Investigations carried out at the hospital reveal that Y had suffered a greenstick fracture to his arm.  In my view, it is concerning that the father did not see fit to take Y to the hospital until the mother returned to the home.  I consider that his own evidence indicates that the father failed to deal sensitively and effectively with Y’s injury and his pain and distress.

5. I have referred above to Mr K’s evidence as to the father’s threats to pin him to a clothesline by his ears.  In his affidavit the father conceded that he touched Mr K’s ears and said “If you’re not going to listen to me I’ll pin you to the clothes line”.  I found Mr K’s evidence in relation to these threats to be compelling and I am inclined to the view that the father frightened him and acted very insensitively on these occasions.

6. My overall impression that the father is well-intentioned toward the children but lacks the skills to cater sensitively and effectively for their needs was supported by certain opinions expressed by Dr B.  In his report Dr B opined as follows:

   526.The father appeared to carry positive intentionality towards the mother and the children at one level, but at another, to profoundly let them down through his mix of on the one hand aggressive/demanding/entitled behaviour and on the other hand dismissing/withdrawn/disengaged behaviour.

   …

   533.My impression is that the father demonstrates an extreme of a dismissing attachment style, which means that he operates in the pragmatics and cause and effect of family relationships, without pausing to consider the emotional experience of the other.

   534.Associated with this dismissing attachment style, I observed in the father significant immature personality functioning.

   535.The father showed poor reflective functioning, that is the capacity to step back and think about his own thoughts, feelings, motivations and actions, and the thoughts, feelings, motivations and actions of others.  He also showed only limited capacity for empathic attunement, that is an ability to pause and to notice the feeling state of another person, and to respond sensitively to that feeling state.

   (Original emphasis)

7. I wish to make clear that I accept entirely that the father loves and misses the children.  I do not accept that there is any valid basis for criticism of the father for posts on his Facebook page in which he expresses his love for the children and deep regret that he does not currently have a role in their lives (Exhibit 20).  I have no doubt that the father has a heartfelt wish to resume a relationship with the children.

8. I accept that the mother also has a sincere desire and determination to do what she perceives to be best for the children.  Unfortunately, the mother seems to believe that the children’s best interests dictate that they have no relationship with the father and most of the paternal family.

9. Dr B opined as follows in relation to the mother:

   517.I observed that the mother has a strong and enduring commitment to the children, and to her responsibilities of parenthood.

   518.In my view, the mother is able to meet the children’s basic needs for food, shelter and protection from harm, and their more complex emotional, intellectual, relational and developmental needs.

   Dr B opined further in relation to the mother:

   485.I observed that the mother has reasonable capacity for reflective functioning, that is an ability to step back and think about her own thoughts, feelings, motivations and actions, and the thoughts, feelings, motivations and actions of others.  She also has reasonable capacity for empathic attunement, that is an ability to pause and to notice the feeling state of another person, and to respond sensitively to that feeling state.

   486.The mother has in some ways greater-than-ordinary capacity to calmly and sensitively assist a troubled other to settle, and to move forward.

   487.But, I observed that the mother has developed some patterns of immature personality functioning, including a vulnerability to ending up in coercive or abusive partner relationships, and a vulnerability to the use of the immature coping strategies, including denial, avoidance and externalisation of blame.  The mother has had trouble with taking charge of her own and the family’s priorities and routines.

   (Original emphasis)

10. It is thus apparent that there are defects in the capacity of each of the parents to provide for the needs of the children.  As indicated above, I conclude that each of the parents wants the best for the children, according to his and her perception, but both are handicapped by these limitations in their parental capacity.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

and

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter

1. I have referred above to the allegations that the father subjected the mother and the children to family violence.  I have made reference also to the family violence orders which existed between June 2014 and December 2015.

2. I am of the view that family violence is not a current issue in these proceedings.  As noted above, since June 2014 the children have had only brief and incidental contact with the father.

The presumption of equal shared parental responsibility

1. The ICL and the mother proposed that she have sole parental responsibility for the children, provided that she keep the father informed of major decisions in relation to their care, welfare and development.  The father proposed that he and the mother have equal shared parental responsibility.

2. I am satisfied that there is little realistic prospect that the parties could consult with each other constructively and make appropriate decisions jointly concerning the children.  Prior to their separation, they were at odds frequently in relation to the children’s medical and developmental issues and proper intervention by health care professionals.  There has been no consultation between the parties concerning the children for approximately four years, although I accept that the father would have wished to be involved in these matters.  Additionally, the expert evidence of Dr B persuades me that it is likely that the children would resent input by the father into decisions concerning their care, welfare and development.

3. For these reasons, I find that the presumption has been rebutted by evidence that equal shared parental responsibility would not be in the best interests of the children.  I will order that the mother have sole parental responsibility on condition that she keeps the father informed in a timely manner of all major decisions in relation to the care, welfare and development of the children.

Conclusion

1. As there will be no order for equal shared parental responsibility I am not obliged to undertake the artificial exercise of considering whether it would be in the best interests of the children, and reasonably practicable, that they spend equal or substantial and significant time with each parent.  I am at liberty to proceed directly to a determination of what parenting orders are in the best interests of the children.

2. Sadly, there can be no good outcome to this litigation.  The expert evidence of Dr B indicated strongly that any attempt to force face-to-face contact or direct communication between the children and the father is likely to fail and place in jeopardy future prospects of voluntary re-connection.  I appreciate the father’s strong wish to start a re-establishment of his relationship with the children immediately.  I appreciate also that the father probably believes that he has been excluded from the lives of the children by the mother and that the breakdown in their relationship with him is not a result of conduct on his part.  I am conscious of the comment of Dr B:  “I agree that the mother places little value on the paternal relationship.”

3. The fact remains that I must determine what parenting orders are in the best interests of the children in their present circumstances.  They are in a situation of “realistic estrangement” from the father and strongly opposed by any form of contact or communication with him and the paternal family.  There was compelling expert evidence to the effect of a forced reintroduction to the father at this point is likely to fail and jeopardise future prospects of reconnection.  In these circumstances, I can see no benefit to the children of a regime in the terms proposed by the father.

1. I will accede to the recommendations of Dr B and the proposals of the ICL as to a mechanism for preservation of a channel of communication between the children and the father.  This process will consist of the father sending cards and letters to the children’s therapist once per year.

2. I will make orders as proposed by the ICL in relation to therapy for the children, which are supported by the expert evidence of Dr B.  I will not order that the parents undertake therapy, as I consider that this is a decision for them to make for themselves.  I will order that the parents be at liberty to provide to any therapist whom they choose to engage copies of the report of Dr B and the orders and judgment of the court.

3. I will not make the injunctive orders sought in paragraphs 8, 18, 19 and 23 of the Minute submitted on behalf of the father.  I will not order that the children spend time with the father or that they participate with him jointly in therapy.

4. The issue of a relocation of the children away from the L Town area is troubling because of the absence of evidence of her proposals.  This lacuna prevents me from considering this part of the mother’s application in accordance with

   
   

   well-established authority.  It seems to me, however, that the mother is at liberty to determine the place of residence of the children, if she has sole parental responsibility and there are no orders that they spend time with the father.

I certify that the preceding one-hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 20 June 2018.

Associate: 

Date:  20 June 2018