Theodore & Theodore - [2021] FamCA 321

FAMILY COURT OF AUSTRALIA
Theodore & Theodore [2021] FamCA 321

File number(s): PAC 5789 of 2014

Judgment of: FOSTER J

Date of judgment: 21 May 2021

Catchwords:
FAMILY LAW – CHILDREN – best interests – where consideration of applicable principles – where significant issues of risk – where father has history of mental illness and or personality disorder – where no issue that children should reside with mother – where presumption of equal shared parental responsibility should not apply – where in children’s best interests that the mother have sole parental responsibility – where Independent Children’s Lawyer and Single Expert proposes that father has supervised time with the children – where opinion of Single Expert to be given significant weight – where father demonstrates little insight into the children’s circumstances as a consequence of his conduct – where orders to be made substantially as sought by the Independent Children’s Lawyer and supported by the mother.

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where oral adjournment application by the respondent father when proceedings part heard – where father the subject of outstanding criminal proceedings – consideration of the history of the litigation – whether the proceedings should be further delayed – best interests of the children – where application for adjournment refused.

FAMILY LAW – SUBPOENA OBJECTION – where a Notice of Objection on behalf of third party to a subpoena addressed to BB Company – where discussion of applicable principles – where subpoena struck out.

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Evidence Act 1995 (Cth) s 128

Cases cited:
Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905

Goode and Goode (2006) FLC 93-286

Langley & Tarelli and Anor (No 2) [2020] FamCAFC 126

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GRR [2010] HCA 4

Reeves & Grinter [2017] FamCAFC 19

Theodore & Theodore [2017] FamCA 588

Theodore & Theodore [2018] FamCA 188

Number of paragraphs: 184

Date of last submission/s: 8 April 2021

Date of hearing: 22, 23, 24 and 25 June 2020 and 27, 28 and 29 January 2021

Place: Parramatta

Counsel for the Applicant: Mr Schroder

Solicitor for the Applicant: Chapman & Smyth Family Law Pty Ltd

Counsel for the Respondent: Mr Batey

Solicitor for the Respondent: Madison Marcus Law Firm

Counsel for the Independent Children's Lawyer: Mr Braine

Solicitor for the Independent Children's Lawyer: Ms Rutkowska of Ark Law Lawyers

Counsel for the Objector to the subpoena addressed to BB Company: Mr Todd

Solicitor for the Objector to the subpoena addressed to BB Company: Williamson & Learmonth
ORDERS

PAC 5789 of 2014

BETWEEN:
MS THEODORE

Applicant

AND:
MR THEODORE

Respondent

AA PTY LIMITED

Objector to subpoena addressed to BB Company

MS MANSOUR

Independent Children’s Lawyer

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

27 JANUARY 2021 AND 21 MAY 2021

THE COURT ORDERS MADE ON 27 JANUARY 2021 THAT:
1.The Application for adjournment is refused.
2.The objection to the subpoena addressed to the Proper Officer, BB Company of CC Street, Suburb DD be upheld and the subpoena is struck out.
3.The objector file and serve any application for costs arising from the objection herein by no later than Friday, 19 February 2021 and that the father file and serve any submissions in response to the application for costs by no later than Friday, 5 March 2021.

THE COURT FURTHER ORDERS THAT:
1.All previous parenting orders be discharged.

Parental Responsibility
2.The mother has sole parental responsibility for the children B born … 2009 and D born … 2010.

Live With
3.The children live with the mother.

Children’s time with father
4.The children spend time with the father once per month until each of the children reach 14 years of age on a date to be agreed, failing agreement on the first Saturday of each calendar month, for a period of six (6) hours, from 9.00 am to 3.00 pm, such time to be supervised by Z Group supervising agency or in the event that Z Group is unable or unwilling to provide supervision then such professional supervising agency as may be agreed between the parties in writing, such writing may include SMS or email communication.
5.For the purposes of Order 4, the supervisor at Z Group is to collect the children from the mother's residence and deliver them to the father’s residence at the commencement of time and then return the children to the mother’s residence at the conclusion of time with the father provided that the mother shall not accompany the supervisor when transporting the children.
6.In addition to the time provided for in Order 4, the father shall have additional supervised time with the children, supervised by Z Group for a period of three (3) hours on Father's Day and each child's birthday if a non-school day.
7.The paternal extended family are permitted to attend the supervised visits between the children and the father.
8.The costs of the supervision by Z Group shall be paid by the father.

Other time with the father
9.That otherwise the children spend time with the father at such times and subject to such conditions as agreed to by the mother and father in writing, such writing may include SMS or email communication with the parties to have regard to the reasonably expressed wishes of the children.

Telephone communication
10.The mother shall facilitate the father having telephone/FaceTime communication with the children on a fortnightly basis on Wednesdays between 5.00 pm to 6.00 pm with the father initiating the communication by calling B's mobile number and the mother is to ensure the children are available to accept such call and the mother shall be permitted to monitor such call.

Ongoing Intervention
11.The father continue to attend upon Dr L, psychiatrist and his treating psychologist as reasonably directed by them on such occasions and for such periods as the therapists considers appropriate and to follow all treatment plans, medications and recommendations including, if necessary, recommendation for intervention by any other health or allied health practitioner.
12.The mother continue to attend upon her clinical psychologist, Ms EE, as reasonably directed by her on such occasions and for such periods as Ms EE considers appropriate and to follow all treatment plans, medications and recommendations including, if necessary, recommendation for intervention by any other health or allied health practitioner.

School Reports
13.Within 14 days of these orders and within 14 days of the children's enrolment at any school, the mother shall do all acts and things and give all authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of each child's school reports and merit cards, any written material pertaining to each child's academic and extra-curricular activities.

Restraints
14.Each party is restrained from physically disciplining or chastising the children or allowing any third parties to do so.
15.Each party shall be restrained from making any derogatory comments about the other parent and any member of that parent's household or any extended family in the presence of the children.
16.Each party is restrained from coming within 100 metres distance of each other or any other place they may be in unless by agreement in writing.

Communication
17.The parties are to keep each other informed of their current mobile telephone contact numbers and email addresses and will notify the other parent of any change to those details within 48 hours of such change occurring.
18.Each party will immediately notify the other in the event of an emergency involving either of the children including, but not limited to, either of the children suffering a serious illness or injury or being hospitalised while in their care.
19.For the purpose of facilitating these Orders the parties are to communicate with each other via email or text message, except in the case of emergency in which case the parties are to telephone the other parent as soon as practicable.
20.Each party will ensure the other party is kept informed of the following:
(a)any medical problems or illness suffered by the children whilst the children is in their care;
(b)any medication that is prescribed for the children; and
(c)the name of the children's treating medical practitioner.

21.Each party is permitted to liaise directly with any doctor, medical practitioner (including counsellors, psychologists and psychiatrists), therapeutic or health service provider or institution attended upon by either of the children to obtain information about the health of the children and the progress of any treatment the children may be receiving, and these Orders will be sufficient authority to authorise the release of such information, including copies of any medical reports, to each of the parents.
22.Each party is permitted to liaise directly with the children's school/s to obtain any information about the children's progress at school or information about school events and educational activities or to arrange for the sending out of newsletters, photos, progress reports and any other documents provided by the school and these Orders will be sufficient authority to authorise the release of such information to both parents.

Independent Children’s Lawyer’s Costs
23.That the mother and father file and serve any submissions sought to be relied on in response to the Independent Children’s Lawyer’s application for costs within 14 days and thereafter judgment as to such costs be reserved to chambers.

Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Theodore & Theodore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:

On the 21 June 2017, the applicant mother commenced proceedings by way of Initiating Application seeking parenting orders in relation to the children of her relationship with the father, B now aged 12 and D now aged 10 (“the children”).
In May 2018 the child D was diagnosed with ADHD by his treating child psychiatrist Dr FF. In February 2020, the child was assessed as suffering from dyslexia and having poor phonological development and an auditory processing disorder. Overall, he was assessed with a three-year deficit in learning. The mother thereafter implemented twice-weekly tutoring to assist.
In February 2019, the child B was diagnosed with ADD by her treating child psychiatrist Dr FF.
The mother, in summary, sought parenting orders in relation to the children as follows:
(a)that the mother have sole parental responsibility for the children;
(b)that the children live with the mother;
(c)that the children spend supervised time with the father with such time not to include overnight time.
On 13 July 2017 the father filed a Response to the mother’s application. In that Response the father sought an order that the mother’s Initiating Application be dismissed. Not surprisingly, the father was subsequently directed to file an Amended Response setting out with particularity parenting orders sought by him. At trial, his then Further Amended Response sought parenting orders, in summary, as follows:
(a)that the mother and father have equal shared parental responsibility for the children;
(b)that the children live with the mother;
(c)that the children spend unsupervised time with the father commencing on a defined day only basis and then expanding over a period of time to the children spending time with him on alternate weekends from after school Friday until before school Monday and in the other week from after school Wednesday until before school Thursday, half school holidays and defined time on special days including Father’s Day, the father’s birthday, the Christmas festive period and Easter.
The proceedings have had a significant litigation history with the final day of the trial being on 29 January 2021 and on that day directions being made for written submissions with those submissions to be completed by 2 April 2021. Submissions were delayed somewhat and judgment was finally reserved on 19 April 2021.
It is of some utility to consider the history of litigation in the light of an application at the commencement of day five of the trial by the father for the proceedings to be adjourned pending determination of certain Local Court proceedings in which the father was engaged.
The parties relationship in brief
The mother is presently 38 years of age and the father 39 years of age.
The parties commenced cohabitation in late 2007 and married in 2008.
The two children referred to above are the only children of the parties’ relationship.
The parties separated in early August 2014 on which date the mother and the children moved out of the then matrimonial home at Suburb F. The father remained in occupation of the Suburb F property until its sale pursuant to final property orders in September 2018.
On 2 December 2014 final orders as to parenting were made by consent that, in summary, provided for:
(a)the mother and father to have equal shared parental responsibility for the children;
(b)the children to live with the mother when they are not spending time with the father;
(c)the children to spend time with the father each week from 5.00 pm Tuesday until 8.00 am Thursday, from 5.00 pm Friday until 5.00 pm Saturday in each alternate week and from 5.00 pm Saturday until 5.00 pm Sunday in each other week;
(d)the parties were to share the mid-year school holidays on a week about basis;
(e)otherwise, specific orders were made as to the children’s time with each parent at Christmas, the children’s birthdays, the parent’s birthdays and Easter;
(f)orders were made providing for arrangements for changeovers, each parent’s communication with the children, overseas travel, medical circumstances and mutual non-denigration orders.
The orders required a number of changeovers and no settled circumstance for the children during the school week.
The Present Litigation
Prior to the commencement of the parenting proceedings the parties resolved the issue of property settlement by reason of consent orders made on 17 January 2017, in the context of what were then only property proceedings between the parties. The final property orders, in summary, provided that within 60 days from the date of orders the husband pay to the wife the sum of $350,000 and in consideration of that payment the wife transfer to the husband her interest in the real estate property GG Street, Suburb F and that within a further 14 months from the date of orders the husband pay a further sum to the wife of $50,000.
There was significant issues between the parties in relation to the father’s time with the children. On 17 July 2017 orders were made as follows following an interim hearing:
INDEPENDENT CHILDREN’S LAWYER
2.Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children, B born … 2009 and D born … 2010 and the Legal Aid Commission of New South Wales is requested to provide such representation.
3.The parties are to provide to the Sydney Central Office of the Legal Aid Commission of NSW at 323 Castlereagh Street Sydney NSW 2000, PO Box K847 Sydney NSW 2000 or DX 5 Sydney forthwith copies of all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
4.Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
5.Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.
6.The proceedings are adjourned to 9.30am on Wednesday, 30 August 2017 to facilitate the engagement of the Independent Children’s Lawyer in the proceedings.
7.The parties and the Independent Children’s Lawyer are granted leave to issue such subpoena as they consider relevant to the issues for determination before the Court with such subpoena to be returnable by no later than Friday 25 August 2017.
8.Pending further order the children’s time with the father as provided for in orders made 2 December 2014 be suspended.
9.Pending further order the children spend time with the father as agreed between the father and mother in writing such writing to include SMS or email communication and in default of agreement as follows:
(a)The child spend time with the father each Saturday for a period of not less than 2 hours between the hours of 10.00 am and 4.00 pm with such time to be supervised by W Group or Z Group or otherwise supervised by the paternal grandfather
10.The mother and father be restrained from administering physical chastisement or discipline to the children pending further order.
11. Judgment be reserved to a date to be fixed.
A significant issue at the interim hearing was the mental health history of the father.
Subsequent to a judgment being reserved in relation to the interim hearing, the father made an application to reopen his case. Proceedings were then again before the Court on 4 August 2017 and on that date orders were made as follows:
1.        The Applicant father have leave to re-open his case on interim hearing.
2.The Applicant father have leave to rely on evidence of Dr L affirmed on 31 July 2017.
3.The parties attend for the purposes of child and parents intake assessment interviews at 9.00 am on Tuesday, 26 September 2017 and obey all reasonable directions from the consultant as to such other people who may be relevant for the purposes of the interviews.
4.Each of the parents are to attend and the mother make the children available to Child Dispute Services at 9.00 am on Tuesday, 26 September 2017 for the purposes of a Child and Parents Issues Assessment.
5.        The listing date of 30 August 2017 is vacated.
6.        The proceedings are adjourned for delivery of reserved judgment.
On 11 August 2017 orders were made and reasons for judgment delivered in respect to the interim proceedings between the parties: Theodore & Theodore [2017] FamCA 588. Orders were made as follows pending further order:
1. That all previous parenting orders are suspended.
2.That the mother have sole parental responsibility for the children B born … 2009 and D born … 2010.
3. That the children live with the mother.
4.That the children spend time with the father as agreed between the father and mother in writing such writing to include SMS or email communication and in default of agreement:
(a)the children spend time with the father each Saturday for a period of not less than two hours between the hours of 10.00 am and 4.00 pm;
(b)that such time to be supervised by W Group or Z Group or otherwise supervised by the paternal grandfather or a person or entity agreed to in writing by the mother and father such writing to include SMS and email communication.
5.That, otherwise, the father be restrained from approaching or, otherwise, contacting the children unless agreed to by the mother and father such writing to include SMS and email communication.
6.That the mother and father be restrained from administering physical chastisement or discipline to the children.

These final reasons for judgment assume familiarity with the reasons for judgment given in the interim proceedings. There were at that time clear concerns as to the father’s mental health and his mental health history.
In reasons for judgment delivered 11 August 2017 the mother’s concerns in relation to the father and the objective evidence in relation to the father’s mental health history was considered as follows:
13.The mother asserts that almost immediately subsequent to their marriage the father was physically and emotionally abusive to her.
14.In about 2009 the mother was diagnosed with Post Traumatic Stress Disorder (PTSD), anxiety and depression and has been intermittently on medication to assist her with these conditions.
15.The mother asserts that whilst she was pregnant with the child, B in 2008 the father was diagnosed with bipolar disorder and his behaviour became increasingly erratic. The mother deposes to the following incidents in support of this assertion:
a)        the father damaging a banister in their home;
b)the father on one occasion throwing a beer bottle at the mother’s feet causing it to break in the presence of the children;
c)the father breaking a champagne bottle on the bench top and throwing a plate of food at the mother in the kitchen in front of the children and then throwing an apple at the mother;
d)the father pulling a large clock off the wall and breaking it in front of the mother and the children, then punching holes in the doors of the home and making various threats to the mother including “I will put a bullet in your head if ever you leave” and “if you leave me, you will have nothing, I’ll take you for all you have. You’ll have to live in [Suburb C]”.
16.The father’s behaviour was such, says the mother, that he attended a domestic violence counsellor in 2013 but dismissed the counsellor’s assistance saying “she is a load of shit”. The mother sought assistance from the same counsellor between June 2013 and November 2014 during which the counsellor caused notifications to be made to the Department of Family and Community Services (the Department) out of concerns relating to the father’s abusive and violent behaviour.
17.The parties separated, says the mother, on at least three occasions for a few days at a time as a consequence of the father’s conduct.
18.The mother says that subsequent to the birth of both children she was the primary caregiver with the father working full time and rarely being at home to assist her with the children. She says that his engagement with the children was mostly on weekends when the family would visit his parents or go on outings.
19.In January 2014 the father broke his back and was hospitalised for two weeks. Subsequent to his discharge, the mother asserts that the father’s behaviour and aggression escalated significantly.
20.The father thereafter attended a mental health program as an inpatient at E Hospital for about five weeks.
21.On 26 February 2014 the father was to be discharged from the Hospital. The mother expressed her concern to the father about him returning home and his behaviour. The father agreed to stay at his parents’ home. Yet on returning home on the evening of 27 February 2014 she found the father was inside the home. He commenced shouting and arguing with her and his behaviour became increasingly aggressive causing the mother to fear for her safety and the children’s safety. The mother called the police who attended at the home. The mother provided a statement to the police. The police contacted the father who had left the premises and the police were subjected to a tirade of abuse by the father.
22.The police sought an Apprehended Violence Order (AVO) against the father and on 4 March 2014 a final AVO was made for a period of 12 months for the protection of the mother and the children.
23.Subsequently, the mother asserts the father had no contact with the children from 27 February 2014 until September 2014 save for a family holiday in July/August 2014 in an attempt to fix the marriage.
24.The father’s conduct did not abate and on 8 August 2014 the mother and children moved out of the matrimonial home to a rental property at Suburb F.
25.It was agreed that the father would spend time with the children each Friday from 5.00 pm until Saturday 5.00 pm with changeovers to occur at the McDonald’s family restaurant at Suburb G.
26.However, the father’s aggressive conduct continued and the father was charged with a breach of the AVO arising from an incident on 27 September 2014. In January 2015 he was convicted of this offence.
27.Notwithstanding this background, final parenting orders were made by consent on 12 December 2014 that provided for the children to spend six nights a fortnight with the father together with block school holiday periods.
28.Subsequently, the mother made application through the police to vary the AVO so that the father could have time with the children.
29.The AVO was amended on 12 February 2015 for a further period of 12 months with further conditions added as follows:
a)that the father not enter the premises at which the protected persons (the mother and the children) may from time to time reside or work or other specified premises H Street, Suburb F;
b)that the father must not destroy or deliberately damage or interfere with the property of the protected persons;
c)that the father must not approach or contact the protected persons by any means whatsoever except through the father’s legal representative except every Monday, Wednesday and Friday between 6.00 pm and 6.30 pm by phone and every Sunday 9.00 am to 5.00 pm with children to exchange at McDonald’s family restaurant at Suburb G.
30.The mother has had recent concerns in relation to the behaviour of the child D. In November 2015 the child exposed his private parts in the playground at his preschool. The preschool informed the mother that they had become increasingly concerned about the child’s behaviour. The child had become disrespectful of the mother, calling her foul names and being physically aggressive towards her.
31. In November 2015 the father was charged with further breaches of the AVO and other offences including common assault on the mother.
32.On 10 June 2016 a further final ADVO was issued for the protection of the mother for a period of two years.
33.On 17 January 2016 the children returned home after spending time with the father. The child, B, reported that the father had hit D with a wooden spoon. The child, D, was questioned by the mother and showed to her a welt and large red mark on his left buttock.
34.In April 2017 the mother was spoken to by the child D’s teacher who expressed concerns about the child’s emotional behaviour in that he began to try to choke himself saying “I wish I was dead”.
35.The mother expresses concern in relation to the fact that the father’s new partner’s 13 year old son on occasion shares a bedroom with the child, D. The mother has observed that D’s behaviour has become increasingly sexual and inappropriate since sharing a room with this child.
36.The child, B, has complained to the mother about the father swearing at her and using foul language.
37.The mother has concerns about the well-being of the children who she has observed are displaying signs of sadness, anger and anxiety after returning from the father’s home. She has also observed that the children appear agitated and aggressive when their time with the father is about to commence.
38.The child, D, on 30 May 2017 reported to his teacher that he had been hit by the father with a metal spoon and that his sister, B, who was present, was upset and screaming. The teacher informed the mother that she had notified the principal and reported the matter to the Department. The child, B, also reported the matter to the mother, complaining that she had to step in between the father and her brother.
39.The mother on 1 June 2017 met with D’s school principal and class teacher. They reported to the mother that the child had been agitated, upset and emotional, disruptive in class and avoidant of discipline.
40.The mother has observed that the children are exhibiting signs of being enmeshed in the parental conflict, repeating the father’s abusive criticism of the mother and expressing concerns for her safety.
41.On 13 June 2017 the child, D, took a knife and stabbed the yard fence saying “I don’t want to go to daddy’s”. Both children have expressed wishes to the mother not to go to the father’s home for time with him. On 15 June 2017 the mother reported her concerns to the Department.
42.On 18 June 2017 the child, D, returned from the time with the father with red marks on the left buttock and complained of being smacked by the father.
43.On 28 June 2017 the father unexpectedly collected the children from school at 10.30 am. The school notified the mother that the father proposed to take the children to a psychologist “Ms J”. The mother was informed that the children were upset when they left. The mother enquired of the psychologist’s practice and was informed the children were not there and the father had not been seen for six months. The mother notified the Police and the Department. The children were located at the father’s residence.
44.The children were collected from school the next day and informed the mother that they were upset that the father had taken them from school and that the father had said that they might “never see the mother again”. The children, especially B, were upset and fearful that the father would again remove the children from school. They did not attend school on 30 June 2017, the last day of school term.
45.      The mother has not made the children available to the father since.
46.The mother says she has significant concerns as to the children’s welfare should they spend time with the father by reason of the father’s behaviour and anger issues….
The objective evidence
68.Colour photographs (Exh “B”) of the bruising on the child, D, show concerning bruises arising from both incidents (in January and June 2017) asserted by the mother.
E Hospital
69.The father was referred by his GP to the E Hospital for “mental health issues”. Documents produced by E Hospital (Exh “D”) show the father in March 2014 was admitted to its programs for a litany of issues: Bi Polar, Depression, Alcohol use, Relationship concerns, CSA, Anger and polysubstance abuse.
70.His admission notes are consistent with the history given by the mother and concerningly reveal some recent suicidal ideation, alcoholic binges, aggression, raging behaviour, belittling of the mother, punching walls at home, dangerous/reckless driving, driving whist under influence of alcohol, previous cocaine use and blackouts from alcohol.
71.The notes also reveal his five year engagement till 2013 with Dr M for “anger relationship (sic)” that included prescribing dexamphetamine and later other medications. Dr M attended on the father whist he was an inpatient. There is no evidence before the Court from Dr M.
72.On admission he was in possession of various medications: Endone, Lexapro, Lithium, Targan, Escitalopram, Oxycodone, Oxynorm and Dexamphetamine.
73.The father discharged himself from the E Hospital program against medical advice on 8 March 2014 but returned the next day. The father’s engagement with the hospital programs was not without incident.
74.On the basis of this subpoena material and in the absence of evidence from the father’s treating psychiatrist there is concern as to the father’s current mental health.
N School
75.The children’s school provided some documents (Exh “E”) to the mother on request. A meeting between the school principal and the mother after 20 June 2017 revealed the concerns held by the school for the child, D, who had complained to his class teacher of being hit by the father. The child’s behaviour had deteriorated with the child being at times aggressive, teary, scared and self-harming. The school reported the child’s disclosure to the Department of Family and Community Services.
76.      The school material is of significant concern.
77.      No documents were available from the Department.
78.Notwithstanding the consent orders it is clear that there has been a substantial change in the children’s circumstances, particularly the child, D’s recent deteriorating and concerning behaviour evidenced by the documents produced by the school and the fact that the children are not spending time with their father, necessitating the reopening of parenting issues.
Dr L
79.The father’s treating practitioner provides an undated report (Exh “F”) prepared after her last consultation with the father on 24 July 2017. She commenced seeing the father in February 2015 shortly after his admission to E Hospital.
80.She had seen the father on 13 occasions from 24 March 2015 to 28 July 2016, which is about monthly. Concerning, she did not see the father again until 24 July 2017, some 12 months later, presumably necessitated by the issues agitated at the interim hearing. She opines as to the reasons for his admission to E Hospital not withstanding he was not her patient at that time.
81.She reports that the father remains on a cocktail of medications but provides no diagnosis underlying the reasons for him being prescribed such medication save for a reference to ADHD symptoms.
82.      She says she has never had concerns as to his ability to care for children.
83.She refers to the father’s “presentation”, which as best can be determined, is a conclusion simply based on what the father has told her on interview. No objective assessment or testing was undertaken.
84.      In such circumstances little weight can be afforded to Dr L’s report.
Subsequent to interim orders being made on 12 December 2017, an order was made by consent for the appointment of a Chapter 15 expert. That expert was Dr Q, forensic and clinical psychiatrist, with the mother ordered to pay his fees to the extent of $7,000 plus GST and the father ordered to pay the balance.
Notwithstanding reasons for judgment delivered 11 August 2017, the father made further application for more expansive time with the subject children by way of Application in a Case filed 23 November 2017.
That interim application was heard on 19 February 2018 with reasons for judgment delivered 26 March 2018: Theodore & Theodore [2018] FamCA 188. An order was made that the father’s Application a Case be dismissed and directions were made for any written submissions as to costs. Reasons for judgment delivered 26 March 2018 included the following
12.The father’s primary affidavit of November 2017 is in some respects an ongoing reflection of the conflict between the parties and the father’s willingness to disparage and criticise the mother, this notwithstanding that he seeks that the children continue to live primarily with her.
13.There is no issue that the children have enjoyed their time with the father and that his time has by agreement been extended to be from 10.00 am to 4.00 pm each Saturday and otherwise by agreement. The children have also had significant interaction with the father’s extended family during the days that they have spent with him.
14.Regrettably, the father chose to absent himself from Australia from 24 December 2017 until 12 January 2018 notwithstanding orders that the children spend time with him each Saturday.
15.The father, otherwise, says that in September 2017 he completed a parenting course and in October and November 2017 attended the U Group parenting course at Suburb V.
16.He says that he has continued to attend upon his treating psychologist and psychiatrist. They are both on affidavit in the present application.
17.The father seeks to be able to spend overnight time with the children unsupervised or in the alternative that his time be supervised by his de facto partner, his sister or the paternal grandfather.
…
The father’s mental health
21.A consideration of the previous Reasons for judgment clearly reveal a concern as to the father’s mental health circumstances.
22.Dr L: On 17 November 2017 the father’s solicitors wrote to the father’s treating psychiatrist, Dr L, seeking a medico-legal report for the purposes of these proceedings. Dr L was provided with significant background in relation to the proceedings, although it appears not a copy of the Court’s earlier Reasons for judgment.
23.Dr L reports that she has been treating the father since February 2015 in relation to his Bipolar Affective Disorder (BPAD) and Adult Attention Deficit Hyperactivity Disorder (adult ADHD). The father had previously been treated by Dr M, psychiatrist.
24.Dr L reports (17 December 2017) that since she has been treating the father she has tried various treatments to address his mood. She says he settled well on a range of mood stabiliser, antidepressant, anti-anxiety agent and stimulant medications including lithium (that prevents the father from cycling into alternating manic and depressive episodes) and dexamphetamine (a stimulant treatment for the father’s adult ADHD).
25.She opines that the father’s current mental health is stable with his pain resulting from a trampolining accident in January 2014 controlled by Oxycodone medication.
…
30.Dr T, Psychologist: on 17 November 2017 the father’s solicitors wrote to the father’s treating psychologist seeking a medico-legal report. The psychologist was provided with significant background information although not a copy of this Court’s previous Reasons for judgment.
31.Dr T provided a report dated 19 December 2017. She commenced seeing the father only on 1 September 2017 for anger management counselling. As at the date of her report the father had attended for 10 sessions. Dr T reports that the father reported a history of emotional difficulties but has never presented as raging or aggressive in consultations. Surprisingly, notwithstanding the overwhelming objective evidence to the contrary, it appears that he asserted to the psychologist that his admission to E Hospital was related to childhood sexual abuse.
…
The Children’s and Parents Issues Assessment
35.Subsequent to the interim orders made in August 2017, the parties and the children attended for interviews with a family consultant for the purpose of the Child Responsive Program.
36.As part of this Court’s Less Adversarial Trial process the family consultant’s memorandum was released to the parties’ legal representatives on 3 October 2017.
37.The child, D, presented to the family consultant as a softly spoken, reserved boy who spoke positively about school and his peer relationships. The child reported that the father was nice “because he does not smack [me] any more”. He added that the father had chased him and yelled and he found this scary. However, he thought that the father was “a good dad”.
38.The child reported to the family consultant that he wanted to spend one day per week with the father but did not want to sleep over. He was clearly concerned about getting into trouble from the father for talking about the smacking. The child otherwise reported that the father had described the mother as a “drunk” with the child reporting that the paternal grandmother had spoken negatively about the mother and this had made him feel sad.
39.The child, D reported that he did not really remember his parents living together but did remember his mother bleeding when the father broke her telephone. He said that the father was “scary”.
40.The child B presented to the family consultant as an assertive, confident girl who at times spoke as a child older than her age. The child spoke positively of her mother.
41.The child was more circumspect about her father, being critical of him for smacking the child, D, and for his negativity in relation to the mother in calling her a liar. The child reported that the father “thought he was the boss” and told them (the children) to tell the Court that he was “the best in the world”.
42.B reported that she did not wish to spend any more time with the father than she was currently spending. She had a clear recollection of family violence and her father being taken away by the police. She reported that the father spoke negatively about her mother using “rude words”.
43.Concerningly, the child was worried about the father’s reaction if she said that she did not want to talk to him or see him.
44.The father acknowledged that he had struck the children with a wooden spoon. The father conceded to the family consultant that he had been at E Hospital for mental health issues of which anger management was a part. The father denied that he had any current substance abuse problems.
45.The mother reported to the family consultant that there was violence in her relationship with the father and that there had been three AVO’s made against the father with the current order for her protection in place until mid-2018.
46.Both parties reported to the family consultant that there was no effective co-parenting relationship.

Subsequently, on 4 May 2018 the father was ordered to pay the wife’s costs of and incidental to this further Application in a Case.
The Chapter 15 expert report of Dr Q was released to the parties on 19 December 2018, with proceedings thereupon listed for further judicial case management on 15 February 2019. Proceedings were later adjourned to facilitate the parties attending mediation in April 2019.
Mediation was unsuccessful and on 31 May 2019 trial directions were made to facilitate the matter proceeding to a final hearing as to parenting, noting that the parties estimated the final hearing would take five days.
On 15 August 2019 proceedings were listed before a Registrar for a compliance check in relation to trial directions. The father had not complied with directions for the filing and service of his primary evidence in chief and proceedings were adjourned for further compliance check on 19 September 2019. On that date the matter was remitted to the list clerk for the allocation of trial dates. Subsequently, proceedings were listed for final hearing for five days commencing 22 June 2020.
Regrettably, as a consequence of the COVID-19 pandemic it was necessary for directions to be made on 26 May 2020 for the trial to proceed by way of video link. On this day parties were granted leave to file short updating affidavits as to circumstances that may have transpired since the filing of their primary trial affidavit.
The final hearing commenced 22 June 2020 and on 25 June 2020 proceedings were adjourned part heard to 27 January 2021.
The interlocutory interim orders
On 25 June 2020 further interim orders were made by consent and without prejudice to any final orders sought by either party on final hearing as follows:
2.        Order 4 of the orders dated 11 August 2017 is discharged.
3.The children spend time with the father on alternate Sunday for a period of not less than four (4) hours commencing at 2.00 pm and such time to be supervised by Z Group supervising agency with the first visit commencing on 28 June 2020.
4.For purposes of Order 3, the supervisor at Z Group is to collect the children from the mother’s residence at JJ Street, Suburb F and deliver them to the father’s residence at KK Street, Suburb F at the commencement of time and then return the children to the mother’s residence at the conclusion of time with the father. The mother agrees not to attend during the transportation of the children.
5.The paternal grandparents, aunt and uncle are permitted to attend the supervised visits between the children and the father.
6.The father is to have telephone communication with the children on alternate Wednesday between 5.00 pm to 6.00 pm by the father initiating the telephone call on B’s mobile number and the mother is to ensure the children are available to accept such call and to monitor such call.
7.The father continue to attend upon Dr L and his psychologist as directed by the therapists on such occasions and for such periods as the therapists considers appropriate and to follow all treatment plans, medications and recommendations.
8.Within 7 days of the date of these Orders, the mother does all acts and things to obtain a Mental Health plan from her general practitioner to engage with a clinical psychologist and undertake counselling as directed by the clinical psychologist on such occasions and for such periods as the clinical psychologist considers appropriate and to follow all treatment plans and recommendations.
9.The mother shall provide the single expert report of Dr Q to her treating clinical psychologist.
Restraints
10.Each party is restrained from physically disciplining or chastising the children or allowing any third parties to do so.
11.Each party shall be restrained from making any derogatory comments about other parent and any member of that parent’s household or any extended family in the presence of the children.
12.Each party is restrained from bringing the children into contact with Mr O.
13.Save for facilitating family therapy as per Orders 21-23, each party is restrained from coming within 100 metres distance of each other or any other place they may be in unless by agreement in writing.
Communication
14.For the purpose of facilitating these Orders, the parties are to communicate with each other via email or text message, except in the event of an emergency, in which case the parents are to telephone the other parent as soon as possible.
15.The parties are to keep each other informed of their current mobile telephone contact numbers and email addresses and will notify the other parent of any change to those details within 48 hours of such change occurring.
16.Each party will immediately notify the other in the event of an emergency involving either of the children including, but not limited to, either of the children suffering a serious illness or injury or being hospitalised while in their care.
17.      Each party will ensure the other party is kept informed of the following:
(a)any medical or problems or illness suffered by the children whilst the children is in their care;
(b)       any medication that is prescribed for the children; and
(c)       the name of the children’s treating medical practitioner.
18.The mother shall provide to the father any medication required to be administered to the children during supervised time.
19.Each party is permitted to liaise directly with any doctor, medical practitioner (including counsellors, psychologists and psychiatrists), therapeutic or health service provider or institution attended upon by either of the children to obtain information about the health of the children and the progress of any treatment the children may be receiving, and these Orders will be sufficient authority to authorise the release of such information, including copies of any medical reports, to each of the parents.
20.Each party is permitted to liaise directly with the children’s school/s to obtain any information about the children’s progress at school or information about school events and educational activities or to arrange for the sending out of newsletters, photos, progress reports and any other documents provided by the school and these Orders will be sufficient authority to authorise the release of such information to both parents.
Family Therapy
21.The father does all acts and things to engage in family therapy with Ms LL or Ms MM at NN Group, or in the event of Ms LL or Ms MM being unavailable then such other therapist as approved by the Independent Children’s Lawyer, and the therapy shall include the children as directed by the therapist on such occasions and for such periods as the therapist considers appropriate.
22.      The costs of the Family Therapy shall be borne by the father.
23.The mother shall do all things necessary to ensure the children’s attendance at the therapy and to attend herself if requested by the therapist.
24.The Independent Children’s Lawyer is to provide a copy of the single expert report to the family therapist.
NOTATION
A.The parties request Z Group to use their best endeavours to retain consistency with the appointment of their supervisor.
Subsequent to these further interim orders, there were some issues in relation to non-engagement with the family therapist and the children not being made available for supervised time with the father.
On 16 November 2020 further interim orders were made as follows:
1.That the father’s supervised time is to occur at the residence of the father; and that there be present at the one time for the father’s supervised time either:
(a)The father, his partner Ms Stavrou, their baby PP and his partner’s children X and Y; or
(b) the father and the paternal grandparents.
2.Subject to Order 5, that the mother be restrained from taking the children to any counsellor, therapist or psychologist.
3.That the parties will be guided by any recommendation made by Ms MM in relation to any therapy she may recommend for the children or either of them, and they will facilitate same.
4.That Order 3 shall not prevent Dr FF (the children’s treating psychiatrist) from prescribing medications.
5.Noted that the Independent Children’s Lawyer has attempted to obtain further notes of Ms MM in relation to therapy she has provided to the children and interaction with the father but has been unsuccessful.
6.Order that the Independent Children’s Lawyer be permitted to obtain all notes of sessions involving the children, the mother and the father regarding family therapy on an ongoing basis.
7.That the parties be restrained from discussing or showing any documents to the children or third parties pertaining to the proceedings.
Subsequently, the final hearing resumed on 27, 28 and 29 January 2021. On 29 January 2021 orders and notations were made as follows:
1.The Independent Children’s Lawyer file and serve written submissions in outline form together with a minute of order proposed by the Independent Children’s Lawyer by no later than the close of business on Friday, 26 February 2021.
2.The Applicant wife file and serve an outline of written submissions and a minute of final orders proposed by her by no later than the close of business on Friday, 12 March 2021.
3.The Respondent father file and serve an outline of written submissions and a minute of final orders proposed by him by no later than the close of business on Friday, 26 March 2021.
4.The Independent Children’s Lawyer and the mother, should they wish, file short outline of any further submissions in reply by no later than the close of business on Friday, 2 April 2021.
5. On completion of submissions judgment will be reserved to chambers.
THE COURT NOTES THAT
6.There are outstanding proceedings pending at [the] Local Court and the resolution of those proceedings is expected in mid-March 2021.
7.The parties are at liberty to provide to the Court in chambers by agreement any further documents relating to those proceedings to be marked as an exhibit or to seek to have the proceedings relisted in relation to the issue.
8.There is an outstanding subpoena for production of documents to QQ Hospital and it is anticipated by the Court that by agreement those documents will be provided to the Court in chambers as an agreed exhibit if no agreement the parties are at liberty to relist the proceedings in relation to the issue.
On 12 February 2021 documents produced on subpoena by QQ Hospital were marked into evidence as Exhibit “JJ”.
Two Discrete Issues
Objection to Subpoena
On resumption of the hearing part heard on 27 January 2021 there was a discrete issue in relation to a Notice of Objection to Subpoena, a subpoena for production of documents having been issued by the father addressed to the Proper Officer, BB Company seeking production of documents, being records of calls between two mobile phone numbers in the period from November 2019 to date of the subpoena and details of MMS and SMS communications between the same two mobile phone numbers for the period from November 2019 to date.
It was common ground that one of the mobile phone numbers was that of the mother in these proceedings.
The Notices of Objection was filed on behalf of Ms B Stavrou, the Proper Officer of AA Pty Ltd, that company being the owner of the other mobile phone number. The subpoena was struck out with reasons to be published concurrently with primary reasons for determination. The reasons are set out below.
It was also common ground that the father in the present proceedings had subsequent to separation formed a relationship with Ms Stavrou, who also has proceedings current before the Court as between herself and her husband in relation to issues of parenting and property.
It was contended on behalf of the father in the present proceedings that the mobile phone records were sought in response to the mother’s denial that she had been in contact with Mr Stavrou, the husband in the other proceedings. It was further asserted by the father in the present proceedings that the mother had been providing to the husband in the other proceedings contact reports from Z Group, the institutional supervisor of the father’s time with the subject children and “other confidential information”.
It is asserted on behalf of the father that the corporate phone number, the subject of the subpoena, was a phone used by Mr Stavrou to communicate with the mother in the present proceedings. Mr Stavrou and AA Pty Ltd are not parties to these proceedings.
It was contended on behalf of the Objector that the purpose of the subpoena was in reality to seek to build a case against the mother asserting a breach of the provisions of section 121 of the Act. No such application was before the Court. As such it was properly contended that the issue of the subpoena was simply a fishing expedition to further an ulterior motive.
Counsel for the mother supported the submission made on behalf of the Objector.
In Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 McClelland DCJ set out a useful analysis of the well settled relevant legal principles (footnotes omitted):
26.The power of the Court to issue a subpoena is set out in Part 15.3 of the Family Law Rules 2004 (Cth) (“the Rules”). Equally, the Court has power to set aside a subpoena so issued: Hatton v Attorney General of the Commonwealth of Australia & Ors (2000) FLC 93 038 (“Hatton”).
27.The relevant stages of subpoenaing a third party to produce documents to the Court were described in Hatton at [38], by reference to National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372, as being a three step process:
The first [step] is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise…This application by the applicant companies concerns the first step referred to in Hatton (supra)….
28.Rule 15.26 relevantly enables a person or entity named in the subpoena to apply for an order that the subpoena be set aside in whole or in part (r 15.26(1)(a)).
29.Further, r 15.26(1)(c) enables a person or entity to which a subpoena is addressed to seek “to be paid for any loss or expense relating to … the production of a document in compliance with the subpoena”.
30.A subpoena must only be used for a legitimate forensic purpose. In considering this issue, it is unnecessary for the party issuing the subpoena to establish actual relevance. However, the party issuing the subpoena must “demonstrate [that] the documents have an apparent relevance to the issue or issues before the Court and in respect of which the subpoena was filed”. (emphasis added)
31.In that context, it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to “a train of inquiry” which might assist his or her case. This is to be distinguished from the process of discovery where such a motive may be permissible.
32.While it is the case that the bar for establishing relevance is not high, the party seeking to rely upon the subpoena must nonetheless establish that it is “on the cards” that the documents would bear upon and have relevance to the issues in the substantive proceedings.
33.Expressed in the reverse, it is not legitimate to issue a subpoena on the basis of “an outside chance” that something useful might turn up in the documents.
34.A subpoena may also be at risk of being set aside if its terms are so wide that “…it imposes an onerous task on a stranger [to the litigation] to collect and produce documents many of which have no relevance to the litigation”.
35.In terms of “fishing”, it is not legitimate for a party to issue a subpoena with a view to determining whether the issuing party has a case at all.
36.In Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476, Coleman J undertook a useful analysis of the relevant authorities and noted at 85,857:
There is a material distinction between seeking production of documents which, if they exist, can be readily identified and produced in circumstances where such documents may be admissible in evidence, and seeking the production of unspecified documents in the hope that, when produced, they may reveal something capable of being admissible in evidence. The former course is permissible according to general law, and… the Act. The latter offends both.
37.In that same context, in Ryder & Lee [2009] FamCA 531, Burr J adopted the following passage from the decision of Gray J in Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) (2005) 92 SASR 419 wherein his Honour said at 428:
It is not enough for the party issuing the subpoena to raise a speculative possibility that the documents sought would assist the resolution of the dispute. The party supporting the subpoena must demonstrate that the documents sought in the subpoena are of real relevance to the issues in the case. It must be more than an outside chance that something useful might turn up in the documents.
38.In summary, it is not enough for a party issuing the subpoena to raise a “speculative possibility” that the documents sought would assist the resolution of the dispute. While the bar is not high, the party supporting the subpoena must demonstrate that the document(s) sought in the subpoena are of an “apparent relevance” to the issues in the proceedings. It must be more than “an outside chance” that something useful might turn up in the documents.
39.To avoid being set aside as merely “fishing”, or as being oppressive, a subpoena must specify with reasonable particularity the documents which are required to be produced.
It is readily apparent that the subject matter of the impugned Subpoena has no apparent relevance to the issues for determination in the current proceedings and in all probability it was issued in the pursuit of an ulterior motive. The Objection was upheld and the Subpoena was struck out.
Application for Adjournment
Prior to commencement of the resumed hearing in January 2021, the father made application for the hearing to be adjourned. Following submissions the application was dismissed with reasons to be published concurrently with the primary reasons. These are those reasons.
Counsel for the father informed the Court that the father was the subject of certain criminal proceedings, being a charge of assault occasioning actual bodily harm and an ADVO application in the Local Court of NSW arising from domestic violence allegations in the context of his relationship with his post separation partner, Ms Stavrou.
It was contended that the continuance of the present proceedings may prejudice his defence in the Local Court where proceedings were listed for hearing on 22 March 2021, after being before the Court on 21 January 2021.
The application was opposed by counsel for the mother who informed the Court that the subject incident occurred on 21 December 2020. It was pointed out that the father’s updating affidavit sworn 25 January 2021 makes no mention of the incident or the court proceedings.

Such omission is concerning as one of the issues in the current proceedings is the father’s lack of emotional control.
These proceedings have been long standing with several interlocutory applications. They are part heard.
In Langley & Tarelli and Anor (No 2) [2020] FamCAFC 126 Ryan J. in the Full Court in considering a similar application said:
25.At first instance and before us, it is agreed that the question of whether proceedings under Part VII of the Act in relation to the welfare of a child should be stayed or adjourned until the completion of criminal proceedings against a party was authoritatively addressed in Re K (1994) FLC 92-461 (“Re K”) (mother’s Case Outline dated 21 February 2020, p.4; father’s Case Outline dated 20 February 2020, paragraphs 28, 36 and C(1) and the Lists of Authorities filed in this appeal). And that Re K is authority for the proposition that in deciding whether a stay of parenting proceedings should be given or refused, the welfare of the child is the paramount consideration (at 80,764), which it is. However, subsequent to Re K, Part VII was amended and the paramountcy principle changed from operating “in proceedings in relation to” a parenting order (s 64, now repealed) to “[i]n deciding whether to make a particular parenting order” (s 60CA). A stay of parenting proceedings is not a parenting order (s 64B) and therefore s 60CA is not expressly engaged.
26.The question which must therefore be considered is how, if at all, these legislative changes affect the principle stated in Re K. Given the consensus this morning that the appeal should be allowed and the father’s application to stay the parenting proceedings should be dismissed, we have not taken argument on the point, but I consider that the position is unchanged. Firstly, s 60B which contains the objects of Part VII, is designed to ensure that the Part operates to promote the best interests of the child. Secondly, this sentiment is echoed in s 69ZN of the Act which sets out the principles which govern child related proceedings.
27.Thirdly, in CDJ v VAJ (1998) 197 CLR 172, the High Court discussed the principles which govern the admission of further evidence on appeal and in the course of so doing considered the amendments made to the paramountcy principle set out earlier. The plurality (McHugh, Gummow and Callinan JJ) observed that an order admitting or rejecting further evidence does not constitute a parenting order pursuant to s 64B and therefore, does not directly invoke the application of the principle. However, the plurality agreed with the Full Court (VJ v CJ (1997) FLC 92-772 at 84,513–84,514) on this point and said that the Full Court was plainly right in concluding that the best interests of the child is a powerful matter to be weighed up against a competing principle such as finality [87]. The plurality continued:
87.… In an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter in issue, the principles which govern the resolution of that issue are the same for the Full Court as they are for the judge at first instance. Consequently, the Full Court is bound to have regard to the best interests of the child as the paramount consideration when determining the appeal. It necessarily follows that, in exercising its discretion to hear further evidence in respect of an appeal concerning a parenting order, the Full Court must have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order.
88.It is not to the point that the Full Court in this case was not asked to make a parenting order as such. An order admitting or rejecting further evidence is part of the appeal process in which the best interests of the child are the paramount consideration. In determining whether or not to admit that evidence, the effect that it may have in determining what are the best interests of the child is a factor of great weight. It will be one of the most important discretionary considerations to which the Full Court must have regard.
28.In other words, where the ultimate decision to be made is in relation to a parenting order, other decisions that arise in the course of the process require that the best interests of the child is given great weight. This does not require the Court to apply s 60CC, for example, which seems to have been implied by the Notice of Appeal as originally presented, in order to determine a matter of practice and procedure or case management. But it does require that the decision should serve and certainly not thwart the best interests of the child (see also Farmer & Rogers [2010] FamCAFC 253 at [197]). This also means that Re K should be followed.
…
31.As the Full Court said in Re K at 80,765, where there is a genuine contest between the parties in relation to the welfare of the child, it is generally inappropriate for the Court to make no orders and adjourn the proceedings. And, further:
… The exercise by a party of his or her right of silence or privilege against self-incrimination in civil proceedings is a matter of decision by that party. Its exercise should not ordinarily determine whether the proceedings in this Court should continue. It would not usually be to the welfare of the child for disputed proceedings about guardianship, custody or access to be delayed for a significant period of time because that person chooses to exercise that right or privilege.
32.I agree, and in my opinion, the statement of principle emerging from that paragraph could not be clearer. Any other approach would have the effect that the welfare of children involved in family law proceedings would be held hostage to criminal justice processes and may have the effect of discouraging victims of crime, including family violence, from taking their complaints to police.
The applicable principles are very clear. The application for adjournment is dismissed.
After the application was dismissed the father was granted a s 128 Certificate in the following terms:
A Certificate issue pursuant to s 128 of the Evidence Act 1995 (Cth) in respect of the evidence of MR THEODORE given by him willingly in these proceedings brought pursuant to the Family Law Act 1975 (Cth) in relation to any domestic violence incident on or about 21 December 2020 between himself and his then partner Ms Stavrou that may render him liable to a penalty that evidence being contained in his oral evidence given to this Court this day.
The Trial:
On final hearing the applicant mother relied upon the following documents:
(a)her primary affidavit filed 26 July 2019;
(b)her updating affidavit filed 9 June 2020;
(c)her further updating affidavit filed 13 January 2021;
(d)the affidavit of the maternal grandmother Ms SS filed 26 July 2019;
(e)the affidavit of Ms TT filed 26 July 2019;
(f)with leave the affidavit of Ms EE, Clinical Psychologist.
On final hearing the respondent father relied upon the following documents:
(a)his primary affidavit filed 11 September 2019;
(b)his updating affidavit filed 9 June 2020;
(c)his further updating affidavit filed 25 January 2021;
(d)the affidavit of Dr L filed 11 September 2019;
(e)the affidavit of the paternal grandmother Ms U Theodore filed 11 September 2019;
(f)the affidavit of the paternal grandfather Mr R Theodore filed 11 September 2019;
(g)the affidavit of the paternal aunt Ms WW filed 11 September 2019;
(h)the affidavit of Ms XX filed 11 September 2019;
(i)the affidavit of the father’s former de facto partner Ms YY filed 11 September 2019.
Background
The nature of the background to these proceedings is readily apparent from the history of the litigation as set out above. During the course of the trial it became readily apparent that the issues for determination comprised the allocation of parental responsibility and what order should be made as to the children’s time with the father.
The mother gives a history of her relationship with the father subsequent to marriage. His conduct over the period of years from May 2008 until separation in 2014 exhibited lack of emotional regulation and physical abuse of the mother, on occasions in the presence of the children. Otherwise, the father was financially controlling of the mother.
In 2008 the father was diagnosed with bipolar disorder, the mother having observed the father’s behaviour to become increasingly erratic and violent from that time. On various occasions early in the relationship the father had smashed the mother’s laptop screen, smashed a kitchen knife into the kitchen bench and attempted to break the knife and pulled the stairway banister loose in the home.
As a consequence of the father’s behaviour the mother was diagnosed with post-traumatic stress disorder, anxiety and depression and was medicated on Effexor for her anxiety.
In 2011 the parties moved to their new matrimonial home at Suburb F. At those premises, in the years before separation in 2014, the father continued to exhibit violence towards the mother in the presence of the children, including throwing and smashing a beer bottle at her feet, smashing a champagne bottle on the kitchen bench and throwing a plate of food at the mother in the presence of the children, throwing an apple at the mother in the presence of the children, pulling a large clock off the wall and smashing it on the floor, forcibly endeavouring to remove the mother from the home and in anger punching a hole in the child B’s bedroom door in the presence of the child causing the child to become hysterical.
The father made verbal threats to the mother including “I’ll put a bullet in your head” and “if you leave me, you’ll have nothing, I’ll take you for all you have. You’ll have to live in Suburb C”.
The father’s aggression and violence became increasingly unpredictable and the father would at times scream and become enraged, alleging that the house was not spotless.
In March 2013 the father consulted a domestic violence counsellor only to assert that “she’s a load of shit”.
During 2012/2013 the mother and children left the matrimonial home on three occasions as a consequence of the father’s conduct.
In January 2014 the father broke his back in a trampolining accident and was admitted to QQ Hospital for about two weeks. Subsequent to his discharge, the father’s behaviour became more violent and his aggression increased. The mother threatened to leave with the children unless the father sought some intervention in relation to his behaviour.
On 27 February 2014 the mother returned to the home with the children to find the father inside the home. The father began shouting and arguing with the mother, causing the mother to fear for herself and the children. The mother called the police and the father left the home. The father thereafter forwarded to the mother a number of abusive text messages. The police spoke to the father who was immediately aggressive and abusive towards the police. The father used foul and offensive language to the police.
An apprehended domestic violence order was taken out by the New South Wales Police against the father. On 4 March 2014 a final apprehended domestic violence order was made for the protection of the mother and the children for a period of 12 months.
E Hospital and thereafter
In March 2014 the father was admitted to a rehabilitation program at E Hospital. His admission details are referred to above but bear repeating as they are supportive of the mother’s assertions as to the father’s aberrant conduct:
69.The father was referred by his GP to the E Hospital for “mental health issues”. Documents produced by E Hospital (Exh “D”) show the father in March 2014 was admitted to its programs for a litany of issues: Bi Polar, Depression, Alcohol use, Relationship concerns, CSA, Anger and polysubstance abuse.
70.His admission notes are consistent with the history given by the mother and concerningly reveal some recent suicidal ideation, alcoholic binges, aggression, raging behaviour, belittling of the mother, punching walls at home, dangerous/reckless driving, driving whist under influence of alcohol, previous cocaine use and blackouts from alcohol.
71.The notes also reveal his five year engagement till 2013 with Dr M for “anger relationship (sic)” that included prescribing dexamphetamine and later other medications. Dr M attended on the father whist he was an inpatient. There is no evidence before the Court from Dr M.
72.On admission he was in possession of various medications: Endone, Lexapro, Lithium, Targan, Escitalopram, Oxycodone, Oxynorm and Dexamphetamine.
Subsequently, it appears that the mother facilitated the children having some time with the father and in early August 2014 the parties and the children holidayed in the South Pacific in an endeavour to repair the family relationships. The family returned from the South Pacific on 6 August 2014 and on returning to the home the father became enraged and sent a message to the mother “you have 48 hours to get out”.
On 8 August 2014 the mother and children left the then matrimonial home and the mother obtained rented premises nearby in Suburb F. At separation the child B was aged five years and five months and the child D three years and nine months.
There is no issue that throughout the parties’ cohabitation the mother was the primary carer of the children, as she has been since separation in August 2014.
On 27 September 2014, a further incident occurred when the mother attended at the former matrimonial home to collect the children. The father sought to prevent the mother leaving with the children, removing the keys from the ignition of her car and striking her on the arm. He then stomped on her mobile phone and threw it on the ground causing it to shatter. The father then threw the mother forcefully on her back against the motor vehicle, then pushed her away causing the mother to strike the garage door. The father then continued to smash the mother’s phone with a hammer. A neighbour called the police.
Further ADVO proceedings were commenced by the police and the father was, otherwise, charged with offences arising out of his behaviour, including breach of the earlier ADVO order. The father was convicted of the offence of destroy or damage property and fined $500 and convicted of the offence of contravening ADVO and placed on a recognisance to be a good behaviour for a period of two years, conditional upon complying with the ADVO order and not assaulting, molesting, harassing or intimidating the mother.
Notwithstanding this turbulent background, on 2 December 2014 final orders as to parenting were made by consent as referred to above.
On 12 February 2015, the ADVO order of 4 March 2014 was varied to extend it for a further period of 12 months with additional orders that the father not enter any premises at which the mother might be present, that the father not destroy or deliberately damage or interfere with the property of the mother, and that the father not approach or contact the mother by any means, except through the mother’s legal representatives, save for changeovers in relation to the children.
In late November 2015, following further abuse of the mother and threats to her by the father, the father was arrested and charged with a further breach of the ADVO order and other offences, including using a carriage service to menace/harass/offend and common assault. The father was called up before the court in relation to the breach of the earlier recognisance and fined $400. In relation to the fresh charge of breach of ADVO he was fined the sum of $800 and placed on a further recognisance dating from 25 November 2015 to be of good behaviour and comply with conditions of the ADVO order: Exh “L”.
Historical incidents relating to the father’s behaviour were in part corroborated by the mother’s friend Ms TT. She remains close to the mother and they assist each other as required.
It is of note that in February 2005 the father was convicted of various offences, including assault police officer in execution of his duty, resist or hinder police officer in the execution of his duty, destroy or damage property, and use of offensive language in or near a public place or school. In all, the father was fined the sum of $1,800 and placed on a recognisance to be of good behaviour for a period of 12 months: Exh “L”.
Subsequently, in January 2016 the children returned home after spending time with the father. The child B complained that the father had struck the child D with a wooden spoon. The child D confirmed that was the case. On examination the mother observed a significant red welt on the left buttock cheek of the child. The child pleaded with the mother to not tell the father of his complaint. In oral evidence the mother said that she spoke to the child psychologist about the incident and was advised to speak to the father about it but she did not do so. In late May 2017, she was informed by D’s school teacher that the school had made a mandatory report to the child welfare Department of Communities and Justice after D had complained at the school of being struck by the father with a spoon. At that time the mother saw no marks on the child.
In June 2017, the child B reported to the mother that the father had been abusive of the mother to the child. Otherwise, the child D commenced expressing significant reluctance to spend time with the father, on one occasion taking the knife from the kitchen and running into the backyard stabbing the wooden fence.
On 18 June 2017, the child B again reported that the father had struck D with his hand. The mother observed red bruising on the child’s upper leg.
The current proceedings
Subsequently, on 21 June 2017 the mother commenced the present proceedings in relation to parenting.
Thereafter, notwithstanding orders for the children to spend time with the father as referred to above, the mother expresses concerns that the father has inappropriately engaged the children in issues in these proceedings. Otherwise, on various occasions the father has cancelled or not availed himself of supervised time with the children, including a period of 10 weeks between late June 2018 and late September 2018.
The mother expresses concerns that notwithstanding supervised time being ordered, the father has on occasions sought to denigrate the mother in the presence of the children and/or attended on occasions outside the scope of current orders. The children on some occasions have appeared anxious during periods of supervised time.
The mother observed that the children have progressed well in her care, receiving numerous awards at school and significantly improving their school performance since separation.
The mother is self-employed and works flexible hours subject to her obligations as to the children’s needs. Her income varies to the extent that she had to access $10,000 of her superannuation under early access rules.
There is no issue that the children should primarily reside with the mother. This notwithstanding the father’s criticisms of her and her asserted behaviour in his primary affidavit.
The mother has appropriate accommodation for the children. She has made appropriate schooling arrangements for the children, including tutoring. Both children engage with their school counsellor. The mother appropriately attends to the children’s day-to-day needs, including medication as required. The child D, who has some auditory processing issues, is on medication for ADHD which manages the condition. Both children are engaged by the mother in extracurricular activities. The mother has assistance from the maternal grandmother and friends if required.

The mother sought final orders, similar to those of the ICL, as follows:
1.        That all prior parenting Orders made be discharged.
2.That the mother have Sole Parental Responsibility for the children B born … 2009 and D born … 2010.
3.        That the children Live With the mother.
4.That the children spend time with has the father once per month on a date to be agreed, failing agreement on the first Sunday of each calendar month, for a period of six hours, from 9 a.m until 3 p.m, such time to be supervised by Z Group agency or in the event that Z Group is unable or unwilling to provide supervision then such professional supervision agency as may be agreed between the parties, until the child B attains the age of 14 years.
5.That upon the child B attaining the age of 14 years, Order 4 and Order 9 are discharged and thereafter time shall occur as agreed between the parents and in accordance with the children’s wishes.
6.For the purposes of Order 4 and Order 9, the supervisor at Z Group is to collect the children from the mother’s residence and deliver them to the father’s residence at the commencement of his time and then return the children time to the mother’s residence at the conclusion of time with the father. The mother is restrained from attending during the transportation of the children.
7. That the paternal extended family are permitted to attend the supervised visits between the children and the father.
8.        The costs of the supervision are to be paid for by the father.
9.In addition to the father’s time set out in order 4 the father shall have supervised time with the children, supervised by Z Group for a period of up to 6 hours on Fathers Day and for up to 3 hours on each of the children’s birthdays.
10.The father is the have telephone communication with the children on a fortnightly basis on Wednesday between 5.00 pm to 6.00 pm by the father initiating the telephone call on B’s mobile number and the mother is the ensure the children are available to accept such call and to monitor such call.
11.Within 14 days of these Orders , in the event that she has not already done so, and upon the children’s subsequent enrolment at any school the mother shall do all acts and things and give all authorities as may be required for the father to be able to receive at his own cost copies of all the children’s school reports, awards, and written material that parents ordinarily receive in relation to the children’s academic progress and school activities. The mother is to ensure that a copy of these Orders are provided to the children’s school so as to give authority if required by the school to comply with such requests by the father.
12.Each of the parties be and are hereby restrained from physically disciplining or chastising the children or allowing any third parties to do so.
13.Each of the parties are hereby restrained from making derogatory comments about the other parent and any member of that parent’s household or any extended family in the presence of the children.
14.Each of the parties is restrained from coming within 100 metres distance of each other or any other place they may be unless by agreement in writing.
15.For the purposes of these Orders the parties are to communicate with each other via email or text message, except in the event of an emergency or hospitalisation, in which case the parents are to telephone each other as soon as practicable.
16.Each of the parties are to keep each other informed of their current mobile telephone contact numbers and e-mail addresses and will notify the other parent of any change to those details within 48 hours of such change occurring.
17.The mother shall ensure that she keeps the father advised in relation to any major medical issue that may arise and the name of such treaters in relation to same, so as to allow the father to make his own arrangements to consult with such treater at his own expense and receive at his own expense a copy of any specialist treater’s report. For the purpose of this order the mother is to ensure that such treater is authorised to provide such information to and consult with the father.
18.The mother will ensure that she keeps the father advised in relation to any medications that the children are prescribed. She shall provide such medication to the father and the father shall ensure that he complies with any dosage requirements of same whilst in his care, and thence return the medication to the mother at the completion of his time.
The father in submissions sought orders as follows:
1.That the parties have equal shared parental responsibility for B (born … 2009) and D (born … 2010) (together “the children”) including but not limited to matters in relation to:
1.1.     The school which the children shall attend;
1.2.     The religious instruction and upbringing of the children;
1.3.     The medical treatment which the children shall receive;
1.4.     The sporting and other activities that the children engage in.
2.        That the children live with the Mother.
3.That the children spend unsupervised time with the Father (unless otherwise noted in these orders) as agreed in writing between the parties or, in the absence of agreement, as follows:
3.1.     From the date of orders for a period of two months:
3.1.1.Each Sunday from 9 am until 5 pm, with this time to be supervised by the paternal grandfather;
3.2.From the expiry of the time in order 3.1, for a further period of two months:
3.2.1.   Week 1: Sunday from 9 am until 5 pm;
3.2.2.Week 2: Wednesday from 3 pm or the conclusion of school until 8 pm on the same day;
3.3.From the expiry of the time in order 3.2, for a further period of two months:
3.3.1.   Week 1: Saturday from 9 am until Sunday 5 pm;
3.3.2.Week 2: Wednesday from 3 pm or the conclusion of school until 8 pm on the same day;
3.4.From the expiry of the time in order 3.3, for a further period of two months:
3.4.1.Week 1: Friday from 3 pm or the conclusion of school until Sunday 5 pm;
3.4.2.Week 2: Wednesday from 3 pm or the conclusion of school until Thursday 9 am of the commencement of school;
3.5.     From the expiry of the time in order 3.4:
3.5.1.Week 1: Friday from 3 pm or the conclusion of school until Monday 9 am or the commencement of school;
3.5.2.Week 2: Tuesday from 3 pm or the conclusion of school until Thursday 9 am or the commencement of school;
3.6.In the event that the Father’s time is followed by a public holiday or day when the children do not have school, the children’s time with the Father will be extended to 5 pm on the public holiday.
3.7.     During gazetted NSW school holidays following terms 1, 2 and 3:
3.7.1.Until the expiry of the time in orders 3.1, 3.2, 3.3 and 3.4, time is to continue as anticipated in those orders;
3.7.2.   Following the commencement of the time in order 3.5;
3.7.2.1.In even years, the children spend the first half of the school holidays with the Father, with changeover to occur at 5 pm on the midpoint of the holiday;
3.7.2.2.In odd years, the children spend the second half of the school holidays with the Father, with changeover to occur at 5 pm on the midpoint of the holiday;
3.7.3.   During the gazetted NSW school holidays following term 4:
3.7.3.1.In a three week-about arrangement as agreed between the parties;
3.8.On the children’s birthdays, if not already spending time with the Father:
3.8.1.If a weekday, for a minimum of two hours and a maximum of four hours;
3.8.2.If a weekend, for a minimum of four hours and a maximum of eight hours; and
3.8.3.   As otherwise agreed between the parties;
4.That the time in orders 2 and 3 be suspended and the parties spend time with the children on special occasions as follows:
4.1.On Mother’s Day, the children spend time with the Mother from Saturday 5 pm the day before Mother’s Day until 5 pm on Mother’s Day;
4.2.On Father’s Day, the children spend time with the Father from Saturday 5 pm the day before Father’s Day until 5 pm on Father’s Day;
4.3.On the Mother’s birthday, if not already spending time with the Mother, from 3 pm or after school until 8 pm if on a weekday and from 10 am until 6 pm if a weekend;
4.4.On the Father’s birthday, if not already spending time with the Father, from 3 pm or after school until 8 pm if on a weekday and from 10 am until 6 pm if a weekend;
4.5.From Christmas 2021 and each odd year thereafter, the children spend time with the Father from 5 pm on Christmas Eve until 2 pm on Christmas Day and with the Mother from 2 pm on Christmas Day until 5 pm on Boxing Day;
4.6.From Christmas 2022 and each even year thereafter, the children spend time with the Mother from 5 pm on Christmas Eve until 2 pm on Christmas Day and with the Father from 2 pm on Christmas Day until 5 pm on Boxing Day;
4.7.From Easter 2021 and each odd year thereafter, the children spend time with the Father from 2 pm on Easter Sunday until 5 pm on Easter Monday;
4.8.From Easter 2022 and each even year thereafter, the children spend time with the Mother from 2 pm on Good Friday until 2 pm on Easter Sunday.
5.Where changeover does not occur at the children’s school, the parent with whom the children are spending time is to facilitate changeover at the residence of the other parent.
6.That both parties be at liberty to contact the children by telephone, FaceTime or other electronic method of communication when not spending time with the children as agreed between the parties in writing or, failing agreement, between 6 pm and 8 pm every other day for no longer than thirty minutes.
7.That the parties communicate with each other by telephone for urgent matters in relation to the children only.
8.That all other communication between the parties be by way of SMS, email or such co-parenting app as is jointly agreed by the parties.
9.        That both parties:
9.1.Attend upon a clinical psychologist forthwith upon the making of these orders and notify the other party when this has been completed;
9.2.Both parties inform the other in writing upon each subsequent attendance at the psychologist; and
9.3.Comply with all reasonable suggestions and directions of the psychologist.
10.That both parties do all acts and things to enrol in and complete courses with ‘1, 2, 3 Magic’, ‘PPP’ and ‘HH Program’, with both parties to provide proof of completion within 6 months of the making of these orders.
11.That, in the event of a medical emergency involving the children, the parent with whom they are spending time notify the other parent of any serious illness requiring medical attention and/or hospitalisation at the earliest available opportunity and in any event no later than 2 hours following attendance on a doctor or hospital.
12.That both parties do all acts and things to provide at least one week’s notice prior to any medical, therapeutic or psychiatric appointments for the children and that both parents be permitted to attend on such appointments.
13.Both parties do all acts and things and sign all documents to permit the other party to receive all medical, educational and co-curricular records of the children, including but not limited to, school reports, medical diagnoses and treatments plans and records of achievement.
14.That both parties be permitted to attend any sporting or extracurricular activity in which the children may be involved from time to time, without giving notice to the other party.
15.That both parties provide at least twenty-one days’ notice prior to any change of home address, email or contact telephone number.
16.That both parties be restrained from relocating the children outside of a 50-kilometre radius of the parties’ addresses as at the date of these orders unless agreed in writing by both parties.
17.That both parties be restrained from denigrating each other in the presence or hearing of the children or permitting any third party to do so in their presence or hearing.
18.That both parties be restrained from physically disciplining the children or permitting any third party to do so in their presence or hearing.
19.That both parties be restrained from causing or permitting the children to be or remain in the physical presence of Mr O.
In considering the father’s proposed orders, it might be suggested that he propounded orders without regard to the evidence before the Court and more particularly without regard to the evidence of the single expert.
Parenting: The applicable principles
The relevant principles in relation to parenting and interim proceedings are well settled: see Goode and Goode (2006) FLC 93-286. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (subsection (2) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption relevantly does not apply where:
(a)There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
(b)if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA, which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In this matter clearly the presumption does not apply by reason of the father’s perpetration of family violence as discussed above and as conceded by him. The poor relationship between the parties and poor communication are indicative of the mother having sole parental responsibility for the children. The father’s own evidence is supportive of such a conclusion:
88The father concedes that he has no issue with any decisions made by the mother about the children’s schooling and medical issues. He expresses doubt that he and the mother could make joint decisions about such issues: If it’s left up to just the two of us, I think it’s very unlikely. But if we had a mediator I think it could work.
The single expert was clearly of the view that the mother for the reasons expressed by him should hold parental responsibility. Otherwise, in considering the best interest considerations discussed below they are also supportive of the contentions of the ICL and the mother’s conclusion that such an order is in the children’s best interests. The order will be made.
Best Interests
The Primary Considerations: s 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.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship:
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The mother has been the primary carer for the children throughout their lives. It is conceded by all parties that the children should primarily reside with the mother. The mother suffers from emotional and psychological issues arising from the relationship with the father as discussed above. She is medicated and continuing with mental health intervention. It is clearly appropriate to fashion orders that ensure that the children remain in the mother’s primary care in circumstances that do not impact adversely on her parenting ability and emotional stability. Such would provide to the children a meaningful relationship with their mother.
The question of the children’s relationship with the father is more problematic. It is clear that they value him in their lives but they are suffering from anxiety arising from their father’s behaviour towards them and his demeaning conduct in relation to the mother. The single expert warned above:
Bearing in mind the number of situations which I have outlined earlier in the report where Mr Theodore has essentially given a self-serving account and also attempted to shift the blame, usually onto his wife, this lends weight to the children’s accounts of them being afraid of their father, both for themselves and for their sibling.
I note the material that I have reviewed elsewhere in relation to Mr Theodore’s own admitted conducted as well as Ms Theodore’s allegations in relation to his conduct during and after the relationship. It is my view that there is a significant risk to the children of physical abuse in terms of excessive corporal punishment and probably also physical harm during other explosive outbursts, as well as frightening verbal abuse, and finally of emotional abuse in terms of intimidation and leaving the children fearful of retribution if they disclose their father’s conduct.
It is clear that the children’s relationship with the father must be circumscribed so as to mitigate the risk identified by the single expert but not so as to reduce the relationship down to “identification time” only. The single expert was of the view that the children could tolerate less frequent time but for a longer period than at present so as to preserve the relationship with the father. The nature of the children’s relationship with the father going forward is inextricably mixed with the protective considerations discussed below.
Section 60CC(2)(b) – need to protect
In Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 the Full Court said:
[94]A finding by a trial judge in a children’s case under the Act that a party has assaulted another party or a person can have significant impact on the findings made on the matters the court is required to consider under s 60CC of the Act. The provisions of ss 60CC(2)(b), 60CC(3)(f),(i),(j) and (m) would require a consideration of the impact of any finding of fact as to violence perpetrated by a party seeking a children’s order.
[95]The best interests of a child the subject of an application for a parenting order must require that the court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation…
[96]It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the court to make findings where the evidence enables that to be done.

This is an overwhelming consideration and must be given priority over issues as to relationship as discussed above. This consideration is in itself almost determinative of the present proceedings. The significant issue of issue of risk, arises from the father’s historical aberrant conduct involving family violence in his relationship with the mother, the children, his significant mental health history and his ongoing conduct post separation. He continues to be significantly medicated for pain and exhibits ongoing mental health and/or personality deficits.
The risks to the children are apparent and significant. The protective considerations are clearly indicative of any relationship at present between the children and the father being on a limited and carefully controlled basis. Subject to future developments, it will be a matter for the mother to consider whether she agrees to an expansion of any arrangements as ordered by the Court.
This consideration, which is to be given primacy, is in itself supportive of orders substantially reflecting the minutes of orders sought by the ICL and the mother.
The additional considerations: s 60CC (3)
Section 60CC(3) sets out the additional considerations:
(a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
At best the evidence is supportive of the children being ambivalent in relation to their views as to the father. This is not surprising having regard to the background circumstances discussed in detail above. Both children were interviewed by the single expert who concluded:
I felt that both children expressed rather qualified views in relation to resumption of visits with their father and that D described a genuine apprehension about staying overnight with him. Bearing in mind what both children said to me and also to the Family Consultant, I formed the view that this was due to fear of not just his father’s behaviour but also of the possible consequences of them saying things to their mother which might be detrimental to the ongoing visiting regime. In relation to B, while she did describe her father severely punishing D and the behaviour which led to that, her fear was less for herself than it was for D, I also note that she is a child who is very eager to please and I think it is likely that she harbours more apprehension about spending time with her father than she has expressed. Although both children have significant emotional immaturity, nevertheless I formed the view that their own account as well as various corroborative materials indicate that significant weight should be accorded to these views and that in general they should be regarded as understatements rather than overstatements.
The children have coped with more recent supervised time as evidenced by the supervision reports. Yet by reason of the protective issues little weight can be attached to this consideration in the context of this matter overall.
(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);
As to the parties this has been discussed above. The children clearly have a primary attachment to the mother. The children’s relationships with the father are circumspect for good reason as discussed above. Their relationship with the father is anxious and emotionally disorganised. The children, otherwise, have a good relationship with the maternal grandmother. The children historically have a relationship with the paternal grandparents that may resume in the context of orders to be made.
(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;
In the background of this matter this consideration is of little utility by reason of the history as discussed above.
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;
The mother has provided primary financial support for the children since separation. The father has provided little in the way of ongoing support for the children financially. Indeed, significant arrears of child support were paid only recently, it appears, by way of garnishee from his accounts. His current child support obligation can be seen as minimal. He is self-employed and able to manage his affairs, it appears, to minimise his child support obligation. The father has made no attempt to meet some of the children’s outstanding school fees with arrears necessitating the children moving schools.
(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;
Currently the children have a limited supervised relationship with the father. Both the ICL and the mother propose that such an arrangement continue. The continuation of a limited protective relationship with the father would see them able to identify with a paternal figure and have an ongoing relationship with their father. The father proposes orders that see the children’s time with him expanding out to substantial and significant unsupervised time. Such presents as a risk to the children as discussed above and a risk to the mother’s psychological stability that may impact on her parenting capacity. This consideration is clearly indicative of there being no significant change in the children’s circumstances. Supervision is proposed for a finite period to address the various issues of risk as discussed. Thereafter, with the children at more mature ages the mother will be able to manage the relationship with the father.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a significant consideration in the context of this matter.
(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;
All parties propose orders that the children live with the mother. She has had her difficulties as discussed by the single expert:
I note my reservations about Ms Theodore’s attitude towards the responsibilities of parenthood outlined above. Arising from that, I felt that she probably has an adequate array of parenting skills however my concern is that they have been in evidence rather inconsistently over the children’s lives. Each of the children is quite troubled and while each of them has had peaks and troughs in their problems, both seem to have a quite extensive and consistent pattern of attention seeking behaviour, poor self-esteem and poor social relationships. While it is possible that these may all be due to the ongoing impact of Mr Theodore on the children’s lives, I might have expected a greater degree of recovery than has occurred since unsupervised visits stopped, and I am concerned that one of the reasons for the persistence of these problems is that in addition, there have been things going on in Ms Theodore’s life which have impaired her capacity to exert the level of care and control of the children to which she probably aspires.
This notwithstanding the mother has addressed issues as to the child D’s ADHD properly and in a timely manner. She has organised appropriate interventions for both children, including intervention at school. Otherwise, she provides all of the children’s needs.
The father’s capacity is overshadowed by mental health and/or personality issues and lack of emotional regulation. Overall, as opined by the Single Expert he presents as a risk to the children.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The subject children are still of primary school age, the eldest 12 and the youngest 10. They live with the mother, having been exposed to a background of family violence at the hands of their father. As to the child B the single expert said:
B is a tall, moderately obese child. She seemed anxious and eager to please, particularly in the presence of both of her parents, although she seemed a little more relaxed when I saw her with her brother and alone. She appears to have a significant history of feeling quite insecure, and I note that both parents report particularly regressed and babyish behaviour in the previous 12-18 months which underscores this. In addition she has required educational support, and I note that her mother has arranged for tutoring in core subjects. In my view it is quite possible that she has some specific learning difficulties, however I am not aware that a formal educational assessment has been conducted to identify areas of special need and remediation.
As to the child D the single expert said:
D presented as quite restless, fidgety and distractible. Although he was able to respond to questions, he quickly became diverted into digressions. Both parents give a history of him being like this with them as well as at school, and both also indicate that he is not a child with a good capacity for concentrating on activities for very long and that his preference is to keep quite active. I formed the view that it is likely that a significant element of his behaviour is due to Attention Deficit Hyperactivity Disorder. As commonly occurs in such children, his behaviour can fluctuate according to how settled he feels in a particular context and in particular, the extent to which he is experiencing any anxiety or insecurity. In my view it is likely that his behaviour has been amplified for quite some time due to ongoing tensions between his parents, probably more or less since 2014 if not before, as well as fear of his father. Clearly there have been several peaks in the tensions between his parents which have flowed on to him including in early and late 2014 as well as in late 2015 and again in the first half of 2017. Again, I am of the view that direct and indirect trauma due to his father’s conduct plays some part.
(h)…
(i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
This factor must be seen in the light of the history as discussed above. The mother has continued to exhibit strong characteristics in this regard. The father has not. His behaviour both before and after separation has been aberrant. He has failed to provide any financial assistance for the children, save for modest support payments in arrears. The orders proposed by him exhibit in him little capacity to reflect properly on the needs of his children in the light of his ongoing mental health and emotional issues and his past conduct. His misguided sense of entitlement simply demonstrates his lack of understanding of the issues that confront these children.
(j)Any family violence involving the child or a member of the child's family;
This aspect of the parties’ relationship is discussed in detail above. There is no issue as to the perpetration of family violence on the mother and the children by the father, it is appropriately but begrudgingly acknowledged by him in his oral evidence. His candid history given on his admission to E Hospital in 2014 reveals explosive anger and violence. He still remains a risk to the children.
(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.
There is no current family violence order. Pervious orders were made as set out above with the father’s consent.
(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
Whilst finality is a noble ambition in the context of parenting litigation it is trite to say that circumstances may change into the future. As best as can be fashioned orders will be made that hopefully will see an end to the litigation between these parties.
As was properly contended by the ICL:
“that the orders the court may contemplate which may benefit the children, should be focused on maintain the stability of care provided by the children's mother as their primary carer. The court should contemplate orders which reduce the stress upon the children of the litigation and provide a regime which will bring litigation to a conclusion and minimise the likelihood of future litigation, which may have the effect of destabilising two vulnerable children who will remain in care of their mother”
(m)Any other fact or circumstance that the court thinks is relevant.
There is no other relevant fact or circumstance.
A consideration of the above best interest considerations clearly demonstrate that orders for equal time or substantial and significant time are not in the best interests of these children.
The orders to be made must reflect the protective considerations discussed above and the maintenance of the mother’s primary care of the children in a manner that presents as a meaningful relationship for the children with the mother.
It is not proposed to make orders for ongoing therapy. The mother contended that such would be a recipe for further conflict. The children’s relationship with the father will be regulated by supervised time. Both parties are appropriately agreeable to continuing with their mental health practitioners.
It is the best interests of the children that orders be made substantially in terms as proposed by the ICL. There is no utility in continuing the ICL appointment for any further period as the ICL will have no role to play as it is not in the children’s interests to maintain ongoing therapeutic intervention in the light of the nature of the orders proposed. As contended on behalf of the mother, proscribing ongoing therapeutic engagement simply provides a mechanism for further litigation.
Orders will be made accordingly.

I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster.
Associate:
Dated: 21 May 2021

File number(s):	PAC 5789 of 2014
Judgment of:	FOSTER J
Date of judgment:	21 May 2021
Catchwords:	FAMILY LAW – CHILDREN – best interests – where consideration of applicable principles – where significant issues of risk – where father has history of mental illness and or personality disorder – where no issue that children should reside with mother – where presumption of equal shared parental responsibility should not apply – where in children’s best interests that the mother have sole parental responsibility – where Independent Children’s Lawyer and Single Expert proposes that father has supervised time with the children – where opinion of Single Expert to be given significant weight – where father demonstrates little insight into the children’s circumstances as a consequence of his conduct – where orders to be made substantially as sought by the Independent Children’s Lawyer and supported by the mother. FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where oral adjournment application by the respondent father when proceedings part heard – where father the subject of outstanding criminal proceedings – consideration of the history of the litigation – whether the proceedings should be further delayed – best interests of the children – where application for adjournment refused. FAMILY LAW – SUBPOENA OBJECTION – where a Notice of Objection on behalf of third party to a subpoena addressed to BB Company – where discussion of applicable principles – where subpoena struck out.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Evidence Act 1995 (Cth) s 128
Cases cited:	Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 Goode and Goode (2006) FLC 93-286 Langley & Tarelli and Anor (No 2) [2020] FamCAFC 126 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR v GRR [2010] HCA 4 Reeves & Grinter [2017] FamCAFC 19 Theodore & Theodore [2017] FamCA 588 Theodore & Theodore [2018] FamCA 188
Number of paragraphs:	184
Date of last submission/s:	8 April 2021
Date of hearing:	22, 23, 24 and 25 June 2020 and 27, 28 and 29 January 2021
Place:	Parramatta
Counsel for the Applicant:	Mr Schroder
Solicitor for the Applicant:	Chapman & Smyth Family Law Pty Ltd
Counsel for the Respondent:	Mr Batey
Solicitor for the Respondent:	Madison Marcus Law Firm
Counsel for the Independent Children's Lawyer:	Mr Braine
Solicitor for the Independent Children's Lawyer:	Ms Rutkowska of Ark Law Lawyers
Counsel for the Objector to the subpoena addressed to BB Company:	Mr Todd
Solicitor for the Objector to the subpoena addressed to BB Company:	Williamson & Learmonth

PAC 5789 of 2014
BETWEEN:	MS THEODORE Applicant
AND:	MR THEODORE Respondent AA PTY LIMITED Objector to subpoena addressed to BB Company
MS MANSOUR Independent Children’s Lawyer

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	27 JANUARY 2021 AND 21 MAY 2021