Timmins and Leonard

FAMILY COURT OF AUSTRALIA

TIMMINS & LEONARD

[2011] FamCA 649

FAMILY LAW - CHILDREN - Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT:

Ms Timmins

RESPONDENT:

Mr Leonard

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

1121

2007

DATE DELIVERED:

7 October 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

10-12 August 2010, 1-2 December 2010, 31 January 2011 and 23 August 2011

REPRESENTATION

APPLICANT:

In person

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gardiner

Orders

All prior parenting orders in relation to the following children of the parties namely, M born on … August 1998 and J born on … November 2000 be discharged.
The mother have sole parental responsibility (subject to the requirements of order (3) hereof) for the said children of the parties namely, M born on … August 1998 and J born on … November 2000.
The mother shall inform the father of any decision she proposes to make in the exercise of her sole parental responsibility for the long term care and welfare of the children in relation to religion, education or health or place of residence. The father shall be invited to offer an opinion which the mother is to take into account but the determinative decision shall nonetheless remain as between the mother and the father that of the mother.
The children live with the mother.
The children spend time with the father during term time as follows:
(a)in Sydney for a period of seven hours on the third weekend of each month commencing at 11.00 am and continuing to 6.00 pm
(b)additionally in the Newcastle area providing the mother is given by the father seven days’ notice of his intention to spend time with the children, for a period of seven hours commencing at 11.00 am and concluding at 6.00 pm on one other occasion per month on a weekend and in the absence of other agreement on the first weekend of the month
(c)
for a period of two days commencing at 10.00 am on Saturday until

6.00 pm on Sunday on one weekend in each four month period as agreed between the parties. In the absence of agreement, on that weekend of which the husband gives to the wife 30 days notice in advance. If the nominated weekend is a long weekend then the time spent with the father is to extend until 6.00 pm on the Monday.

(d)during each school holiday period (during the first half thereof in the even numbered years and the second half thereof in odd numbered years) additionally for one weekend commencing on Saturday morning at 9.00 am, and concluding on the following Sunday at 5.00 pm. The relevant weekend will not be a time otherwise hereunder specially provided for as a special day when the children are to be with their mother and in the absence of agreement as to the appropriate weekend, on that weekend during the period of school holidays specified above of which the father has given the mother 45 days’ notice.
(e)the time spent by the children with their father will be supervised by the father’s mother in Sydney and in the event that the time is spent in the Newcastle area with the children by the mother’s mother or the father’s mother
(f)it is noted that the parties may by agreement made between them in writing specify another person to supervise the time spent by the children with the father and after a period of twelve months from the date of these orders can if they so agree in writing dispense with the requirement of supervision on such terms as they agree

Special days
(g)notwithstanding any other order herein made save as to supervision the children are to spend:
(i)time with the father on Father’s Day from 11.00 am to 6.00 pm
(ii)Mother’s Day with the mother
(iii)from 4.00 pm Christmas Eve until 11.00 am Boxing Day with the mother
(iv)
from 11.00 am Boxing Day until 11.00 am on the morning of

27 December with the father.

The above spend time arrangements in Sydney are to be facilitated by the mother or her nominee delivering the children to the father and supervisor at the home of the paternal grandmother at … at the commencement of the time, and the mother or her nominee collecting the children from the same address at the conclusion of the time.
Such spend time arrangements which are to be supervised by the mother’s mother shall commence at the Newcastle Railway Station at 11.00 am and conclude at the same place at 6.00 pm.
The father is restrained from discussing M’s school reports and progress at school with M. The father is only permitted to discuss the school reports and progress of M with the mother or the school teachers.
The passports of M and J be returned to the mother when the children attain the age of 16 years.
The names of M and J be removed from the Airport Watch List when they attain the age of 16 years.
Neither party is to take or permit to be taken the children out of the Commonwealth of Australia without first giving 28 days’ notice in writing to the other party or procuring the other party’s agreement in writing or a further order of the Court permitting such travel.
The mother is to facilitate telephone communication between the children and the father four times per week. Such communication is either to be initiated with the children calling the father, the father calling the mother’s mobile telephone or the father sending a text message to the mother’s mobile telephone indicating that he would like the children to call him and the mother thereafter causing a call between the children and the father to take place as soon as is reasonably possible. The mother will ensure that her mobile phone is charged and switched on for the purpose of receiving such a message.
The father be permitted to procure copies of the school reports and any other school-related correspondence relating to M and J from the children’s school. A copy of this Order may be provided by the father to the school if that is required to facilitate the implementation of this Order.
The father consult with Dr N for a period of two years from the date of these Orders on a two-monthly basis or such other intervals as Dr N recommends. At the end of that two year period the father is to procure a report from Dr N detailing his state of health, which is to be provided to the mother and the Independent Children’s Lawyer.
The father initiate contact with the children through Skype two times a week at times to be agreed to between the parties or with such further frequency and at such further times as may be agreed.
The mother provide the father with the mobile telephone number of M so as to facilitate contact between the father and the child on this number.
The mother obtain a mobile telephone for J and provide the father with the telephone number so as to facilitate contact between the father and the child on this number.
The father is restrained from drinking alcohol or smoking when the children are spending time with him.
The father is restrained from abusing the children; physically disciplining the children; forcing the children to eat all the food he provides for them at meal times; and insisting that the children attend activities/tasks beyond their capabilities.
Both parties are restrained from denigrating the other party, the other party’s family and friends, the area in which the other party lives, to, or in the presence of, the children and/or allowing other persons to do so.
Both parties are restrained from discussing the party’s relationship with the other party and the alleged reasons for the breakdown in their relationship to, or in the presence of the children.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 1121 of 2007

Ms Timmins

Applicant

And

Mr Leonard

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are parenting proceedings between parents, who have residences in different parts of New South Wales, with respect to their children M Leonard (“M”), born in August 1998 and now 13 years of age, and J Leonard (“J”), born in November 2000 and now 10 years of age.
There is another child to the marriage, R Leonard, born in January 1993 and now 18 years of age.
The father has previously been arrested and convicted of abducting his child, from another relationship, taking her overseas for approximately six months in October 2006. During that time the father had no face-to-face contact with his children of this marriage, which has been said to have affected them emotionally. The father recommenced contact with J and M following the abduction in June 2008.
The mother has expressed concerns about her children’s safety especially in respect to the father’s verbal tirades and abuse, and is seeking that the father’s time with the children be supervised by the paternal or maternal grandmother. The mother expressed concern that the father will subject the children to this abuse if he is not supervised.
The proceedings were ones in which both the applicant and respondent were self-represented.
The mother commenced these proceedings by the filing of an Amended Initiating Application filed on 12 July 2010 in which she sought the continuation as final orders certain interim orders then made providing for time to be spent with the father by the children M born in August 1998 and J born in November 2000, one day in each calendar month under the supervision of one of five nominated supervisors from 11.00 am to 5.00 pm.
The child M has special needs. She has been diagnosed with Pervasive Development Disorder-Not Otherwise Specified (“PDD-NOS”) on the Autism spectrum, and also has Obsessive Compulsive Disorder and Attention-Deficit Disorder. She has an intellectual disability and an IQ of 80.
J also has Pervasive Development Disorder-Not Otherwise Specified; however he has an IQ of approximately 140, and is in the gifted program at school.
The interim order required the mother (who lived in the Newcastle area) to deliver the children to the home of the paternal grandmother in Sydney at the commencement of the time to be spent into the hands of the father and supervisor and pick up the children from the father and his supervisor at the conclusion of the period from the same place.
The time spent by the children with the father could be taken away from the paternal grandmother’s home providing the supervisor was present and driving the vehicle in which the child is transported.
Provision was made for the father to have on notice to the mother a further four hours on a weekend to be nominated by the father in the presence of the maternal grandmother in Newcastle. For the purpose of such time the commencement point was to be Newcastle Railway Station.
Provision was also made for further time to be spent by agreement of parties.
Those interim orders provided that the father was bound by injunction not to drink alcohol whilst the children were spending time with him.
He was restrained from shouting at the children and physically disciplining them, or forcing them to eat all the food he provides for them at meal times, or insisting that the children attend to activities or tasks beyond their capabilities.
The father was restrained from smoking around the children.
Mutual injunctions were made restraining discussion of the proceedings with the children or denigrating the other party or their family or friends or their place of abode in the presence of the children or permitting others to do so.
The parties were further restrained from discussing the party’s relationship with the other party and any alleged reason for the breakdown of the parties’ relationship to or in the presence of the children.
In those interim orders permission to take the children to the United States for a holiday was granted to the mother with the consent of the father on conditions.
The mother also sought further orders which would give the child M authority to make her own decisions as to the time which she spent with the father from the age of 13 years.
The mother sought orders that the father not engage the child M in discussions as to her progress at school, but not to the detriment of his right to have those discussions with the teachers of the child or the mother.
The mother sought financial support for the child and orders in relation to the children’s passports and that their placement on the watch list be removed when they attain the age of 16 years.
The father, who was self-represented, sought orders set out in a response filed in 2007 which he clarified on the first day of the hearing.
In the response the father sought orders that the children live with the mother and spend time with him each alternate weekend from Friday evening to Sunday evening, and during the school term each long weekend when that weekend did not occur on a weekend where the children would otherwise spend time with him.
He sought orders that the children spend time with him during school holiday periods and at Christmas and on Father’s Day. He sought orders for mutual telephone communication between the children and the parent with whom the children were not then residing.
He sought the use of the landline telephone number of the mother and his mobile telephone number for this purpose. He sought orders which made provision especially for Mother’s Day to be spent with the mother.
It was a significant matter in the consideration of arrangements which might be made that he sought from the Court an order that the mother be responsible for the travel involved in the delivery and return of the children. In that application the father said that he would be responsible for their return.
The father sought orders that the children be placed on the Airport Watch List and non-denigration orders, together with orders which provided for him to procure reports as to the health and treatment of the children and their schooling and permission to attend school functions. Orders were sought that the party with whom the children were residing have the responsibility for the day to day care, welfare and development of the children whilst the children were residing with that party.
On being invited to indicate whether the orders sought on trial were different to those sought in his application the father said he was flexible as to times but what he wanted was for the mother to bring the children to Sydney each alternate weekend on a Saturday and pick them up the following Sunday, thus imposing the sole responsibility for travelling on the mother.
The times he said could be at the convenience of the mother.
When it was put to the father that this would involve a round trip twice each second week for the mother the father with some insouciance said that the mother could stay overnight in Sydney at the home of either her father or friends.
He then went on to say that he was flexible about frequency and that maybe it could be every third weekend rather than each alternate weekend. He also sought that there be no requirement for supervision of his time with the children.
He also sought the provision of the children’s landline home telephone number and the ability to call the children at reasonable times. He said that the Court might consider limiting the number of telephone calls and the times at which they might be made, although that was not, it seemed, his preference which was for an ad hoc arrangement. He felt he should be able to ring his children once per day.
The father accepted as a reality that the children would continue to live with the mother. He accepted that a proposal which might be considered in relation to the exercise of parental responsibility was one where the mother had the sole parental responsibility but coupled with an obligation to inform him of important events in relation to matters of health, education, religious upbringing and extracurricular activities.
He confirmed that it was his view that the children could not spend half the school holidays with him but he would like them to come down for two days in the holidays other than Christmas, and three days during the Christmas holidays which he then orally amended to two periods each of two days “or something like that”.
He also sought if possible that the children spend Father’s Day with him and Mother’s Day with the mother. He also asked that the children contact his mother on Mother’s Day. The father wanted specific provision for Christmas Day to be shared between the parents, but noted that an alternative might be for Christmas Day and Boxing Day to alternate.
The father sought an order that the mother provide to him copies of school reports. He also sought copies of photographs in the possession of the mother of himself and the children together.
The father sought an order that the children attend Mass once per week or perhaps fortnight or once each three weeks.
The father sought an order that he be able to communicate with the children’s teachers.
The mother opposed fortnightly contact pointing out her inability to do more travelling than she presently did bringing the children down to Sydney from the Newcastle area once each month. The mother said she would be prepared to consider overnight time with the father during holidays and indicated some flexibility otherwise providing that such time was supervised by the father’s mother. She otherwise sought that the existing orders continue. She noted however that the children have expressed that they do not want overnight contact, however did acknowledge that six hours was a lot of travel for them to do in one day.
In relation to telephone contact the mother said she did not wish to provide her landline telephone number but was prepared to facilitate telephone calls from the children to their father, and if the father cared to text her on her mobile telephone she was prepared to arrange for them to ring him. She did not want a frequency of five times per week, although she said that such frequency depending on what was occurring might be the frequency of such telephone calls. It was noted by the mother that M was affected in her telephone communication with the speech consequences of her disorder.
The mother said that she sought the injunctive orders in relation to the discussion with the child M of her school progress because this child had an IQ of 80 and was behind in her education.
The child J, although suffering from ADHD, had an IQ of approximately 140 and was achieving well and liked going through his school reports with the father. This child had benefited, the mother said, from a recent change of school. M did not like going through her reports and the father needed to respect the difference between the children so as not to cause M distress.
The mother said that overnight time for J was a possibility in the school holidays provided, she said, the paternal grandmother supervised for the whole of the period. J indeed had previously expressed a desire to do that and M, she said, had expressed a desire not to do that. It was her perception that the nature of the children’s relationship with their father was different and that to force M to come against her wishes was something that she would not feel comfortable with. According to the social work report provided by

Ms Y in January 2011, it appears that both J and F have expressed a desire not to have overnight contact. Nevertheless, the mother in her submissions stated that she considers that overnight contact would not be inappropriate if supervised by the paternal grandmother, but that the children’s views regarding such contact need to taken into account.
The mother opposed the children ever spending Christmas Day with the father. She agreed that the children should spend time with their father before or after this day. She was content for special arrangements to be made for Father’s Day and Mother’s Day.

The mother said that she was prepared to provide additional time in the Newcastle area but noted that the father had not availed himself of that offer previously and, although complaining that he could not by reason of injury, travel, he had travelled to New Zealand and Switzerland, and she felt it would not be the challenge the father said that it would be.
She proposed that the time in Newcastle would be supervised by her mother who was a former worker in the then Department of Community Services. She pointed to a number of indoor activities which would be available in the event of inclement weather. She noted that the father, being in receipt of a disability pension, would be able to travel relatively inexpensively and that the time for train travels from Sydney to Newcastle was about 2.5 hours.
The Independent Children’s Lawyer proposed a minute of orders, which supported the orders sought by the mother in part and additionally required an order to be made that if after a period of 12 months a certificate from a treating psychiatrist on whom the father had regularly attended indicated that he was inter alia no risk to the children, that the Supervisor might then be, rather than one of the nominated persons, “an adult known to, and approved of by, the mother”.
The father said that he was not computer literate and could not communicate by that means with his children. Later in the hearing there was some consideration of contact by Skype.
The task for the Court is to determine what arrangements, given the issues created in the case, will best promote the welfare of the children.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1968 the father was born and is now aged 43 years.
In 1972 the mother was born and she is now aged 39 years.
In mid 1991 the mother and father met.
In July 1992 the mother and the father were married.
In January 1993 the child R was born and is now aged 18 years.
In August 1998 the child M was born and is now aged 13 years.
In September 1998 the mother and the father separated and the children continued to live with the mother and the father commenced living with one Ms A.
In July or August 1999 the father and Ms A separated.
In November 1999 the parties reconciled and the father returned to the matrimonial home.
In November 2000 the child J was born and is now aged 10 years.
On 23 November 2000 the mother and the father separated and the children continued residing with the mother.
Between 2002 and 2005 the parties engaged in litigation in the Family Court.
In May 2003 the father commenced living with Ms T.
In May 2004 a child of the father and Ms T, H, was born.
In January 2005 the Family Court of Australia made orders that the children lived with the mother and spend defined time with the father, together with some specific issues orders including placing the children on the Airport Watch List.
In January 2006 the mother asserts that the father took the three children on a round Australia journey without informing her.
In March 2006 the father and Ms T separated.
Proceedings were commenced by the mother in August 2006 when she sought the Court’s permission to take the children for a holiday in New Zealand. The father opposed the order.
The parties were divorced on 21 September 2006.
In October 2006 the father left Australia with his child H. The child was retained by the father overseas without the consent of her mother.
In March 2007 the father was arrested overseas and returned to Australia where he faced charges of kidnap and attempted extortion. On conviction he served a relatively short period of time in prison.
In April 2007 the mother filed an application in the Federal Magistrates Court commencing the present proceedings. The Federal Magistrates Court suspended the operation of the parenting orders and the matter was transferred to the Family Court of Australia at Newcastle.
To that application the father filed a Response on 1 October 2007.
An Independent Children’s Lawyer was appointed. Subsequently on 16 June 2008 interim orders were made by consent in the terms summarised above.
On 17 November 2008 further interim orders were made which varied the times spent by the children with their father in Sydney and in the Newcastle area and providing for supervision.
In the procedural processes prior to trial, a Family Report was prepared by a Court Family Consultant who recommended that a report be procured from a psychiatrist however such a report was regrettably unable to be funded. It is an unfortunate fact that the Court, in cases where it has to determine what is best in a child’s interest and where there are said to be issues of psychiatric impairment of parenting ability, cannot procure independent expert evidence to assist it in making its determinations by reason of the absence of appropriate funding for this purpose.

The Issues

There is no issue that the children should reside with the mother.
There is no issue that there should be no orders with respect to the eldest child of the marriage, namely R, spending time with the father and it appears agreed that having regard to her age that is a matter which will be determined by her.
There is an issue as to how much time the children M and J should spend with the father and whether that time should be supervised. The father seeks time being spent with him overnight on two weekends a month unsupervised (the time hitherto by order having been required to be supervised). In addition, the father seeks time during the school holiday periods, likewise unsupervised.
Each of the relevant children has disabilities. J has Attention Deficit Hyperactivity Disorder and Pervasive Development Disorder, and M has Pervasive Development Disorder-Not Otherwise Specified (“PDD-NOS”) on the Autism spectrum, Obsessive Compulsive Disorder and Attention-Deficit Disorder.
The mother seeks orders which would in large measure reflect the present situation of time spent by the youngest children once per month from five to six hours on a Sunday, such time being supervised by any one of a number of the father’s relatives.
The mother further seeks relief from previous requirements that she provide school reports, but does not oppose the father procuring copies of those reports from school which her evidence asserts will be agreed to by the school.
In addition, the mother seeks certain injunctive orders which she says will protect the child M from harm she perceives arising out of the father’s interrogation of the child about her school report in circumstances where she says that the child, who suffers certain disabilities, is in some areas struggling to achieve a standard commensurate with her chronological age and thereby prevent damage to her self-esteem.
In addition, the father seeks orders in terms similar to those made which would require of the mother travel from the Newcastle area, where she and the children live, to Sydney, where the father lives, both for delivery and pick up of the children on each occasion on which they spend time with him.
The father seeks a continuation of the orders that the mother be required to provide him with certain information in relation to schooling.
The mother asserts that the father’s health and personality, having regard to his history of conduct, require in the interests of the children their time to be supervised in order to protect them from possible harm emotionally or otherwise.
The mother asserts that prior expert opinion given in this matter that the time could be unsupervised was dependent on the continuing relationship between the father and his then new partner, a relationship which has not in fact continued.
The father asserts that the mother has sought to distance the children from him by her words and conduct including, he says, a failure to obey the orders of this Court, and the mother says any failure to comply with an order was made in circumstances where the father implicitly accepted what she had done as a compliance with the order. She says otherwise she has at all times attempted to comply with orders, although on her evidence that has run foul of technical difficulties in relation to communication or in the case of failure to supply school reports for the greater good of M who was suffering because of the father’s interrogation of her on them.
The father and mother have been in litigation in relation to these matters for some time, and in this situation of conflict the Court has to seek a path which provides for the maintenance of a relationship between the two youngest children and their father which is meaningful on the one hand, but which does not put them at potential risk of emotional or other harm.

The Hearing

The father had not filed any up-to-date affidavits in support of his case. He claimed that he was unable to do so. He said at the time that the mother having parental responsibility was not in issue nor was the proposal that the children live with the mother.
Subsequently, on the second day of hearing, he sought leave to amend his application to seek orders for joint parental responsibility and equal time with the children. That leave was refused.
Over the course of the hearing the father’s mother filed an affidavit on behalf of the father on 11 January 2011, and was called to give oral evidence on two occasions.
The father also adduced evidence from his treating psychiatrist, Dr N, who gave oral evidence at the hearing on two occasions.
The mother, in addition to her affidavit, gave some evidence by leave orally and was cross-examined by the Independent Children’s Lawyer and the father at some length.

The Mother’s Evidence

In her oral evidence the mother explained that the present problems arose in the context of the father’s abduction of his child by a different relationship and holding her overseas. As a result of his conduct the children of the parties’ relationship had been deprived of their father (without warning) and this had had a significant effect on them.
She said that the two children had special needs. The issues surrounding their needs were complex and the children, she said, were complex. She said that she had fears for the children whilst in the care of the father. She observed that he could go on long tirades and be damaging to their emotional and mental health.
In the proceedings before the Court the father was at times emotional and his language was strong. He was longwinded. He made no threats. He was rancorous about the mother’s father and sought to vilify him. He sought to gain approval and merit by reference to his association with at least one well-known public figure rather than by what he was as a person or what he had done.
The mother said that the father required supervision not only when he was with the children but also when he was on the telephone. The children, she said, are easily affected and influenced. She added that if the time with the children was extended it should in any event therefore be fully supervised.
She observed that she had taken steps to allow the children to see the father whilst he was in a psychiatric hospital and also whilst he was in prison. This, she said, was the action of a mother who thought it best in the interests of her children to have a relationship with their father. The Court accepts that this mother indeed sees the value of a relationship between the children and their father and has, subject to significant practical difficulties, sought to procure that. Her concerns for the children have a basis in fact and are not frivolously held views. There is clear issue between the parties whether those concerns have currency.
She is, she said, prepared to be flexible. She said that if the father stabilises and is good for the children she is open to working with him to increase their time with him. She said, however, that she wanted minimum orders so that she could revert to those if the father’s behaviour became erratic or damaging to the children. During the course of the trial the mother did make some arrangements for the children to spend some, although limited, extra time with the father including overnight time which time was subject to supervision.
Under cross-examination by Mr Gardiner the mother said that she was concerned about the possibility of the children undergoing what appeared to them to be a further period of abandonment.
She was also concerned that the father would be denigrating of herself and her family, citing in support of this assertion conversations that he had had with R in which he had made comments about the mother, her family, and the Newcastle area in what is presumed to be critical terms.
He is said by the expert, she notes, as still having that negative attitude concerning herself, her family, and the place of residence of herself and the children. Indeed, as earlier pointed out, the father exhibited critical comment of the mother’s father. He however did say that he would not so comment in the presence of the children. The court notes that communication of an attitude does not have to be by the spoken word necessarily.
The mother gave evidence that the father lacked discernment of the children’s needs and did not display relevant capacities when dealing with them.
He sought for example to teach chess to M. Her IQ is significantly below average, and the attempt caused her distress. Equally to M’s distress he went through the children’s reports in the presence of each other.
The process took, it seems, over an hour and lacked an understanding of the differences between the children’s ability and the need, particularly of M, to have positive reinforcement of any achievement no matter how small.
The father, she said, forced the children to eat whilst the mother did not believe that that was the way in which to deal with the children. It was reported to her by her daughter that, “Dad yelled at me because I wouldn’t eat all my dinner”.
The mother said that the history of the father’s care of the children post separation included an incident when in 2006, when he was said to be living with Ms T, he returned the children dirty, without proper clothes and shoes, and their hair messy and M was becoming increasingly distressed and not wanting to go with her father any more and told her that he was shouting at her and being mean to her.
The mother subsequently found out that the father’s relationship with Ms T had ended and that he was attempting to care for the children himself.
It was at about this time that the father disappeared overseas without warning or prior communication with the mother. The mother first became aware of that when Ms T informed her that he had gone taking their child H.
The absence of the father was, the mother said, the cause of tantrums by J at school and sleeplessness at night at home. Despite initial panic attacks being suffered by R (the oldest child) these eased with time.
R declined, from the age of about 13 years, to spend time with the father and then for many years thereafter there was no contact. Some telephone contact occurred but to the distress of R. Now aged 18 years R says, it is reported that she misses some aspects of her relationship with her father but does not want the difficult, complex and damaging side of the relationship.
It did appear during the course of this prolonged litigation that R had reinstated to some extent her relationship with her father, although it seemed clear that she was the determiner of when and under what circumstances that relationship was experienced.
The mother said that J played soccer twice a week for training and on Saturday in competition. He also plays basketball on Friday nights. M was a Girl Guide and undertook art lessons at an art gallery.
The father cross-examined the mother about non-compliance with an order requiring her to provide school reports. The mother said that the order had been suspended but that in any event it was her understanding that the reports were provided by the school.
The father’s cross-examination which was lengthy covered a variety of his complaints about the mother’s conduct. Some of the matters are referable to a decision on the issues in this case but not all.
The father sought concessions as to the mother interfering with his contact with the children’s school and she conceded that when his communications were made to R’s school, she did say that the communications between R and the School Counsellor should be kept private to R. The Court accepts the mother’s view as being appropriate and proper given that the School Counsellor had a therapeutic role with R.
The father, she said, called the school constantly and they then rang her, otherwise the mother had given her permission for the schools to talk to the father.
The father in his cross-examination sought to explore events which occurred in 2004 or 2005 which were of little weight in the determination of the issues in this case.
The father did, it seems, agree to a change of school for M when the proposal for such change was made by the mother. The father had visited the child’s new school and had some involvement in school activities.
He raised the child M’s report which was tendered and which was positive. He then sought to cross-examine the mother but the mother’s evidence was that the father missed the point. It was not that the report was other than positive but:
“my objection is you not stopping. When she becomes distressed and doesn’t want to go through with something that is your indication to stop and even on her protests and your mother’s you didn’t stop and I only have it on [J’s] words that it went on for an hour.”
There emerged a clear difference between the parents as to how reports should be dealt with in M’s case with the father saying that it would be expected that the report would be discussed with the child, and the mother saying that in her case it was inappropriate; that the report was a communication between the school and the parent and that she discussed school matters with the child on a daily basis. The Court accepts the mother’s point of view as being correct.
The father took the view that his character had been assassinated and he wanted to demonstrate that the mother had acrimonious and bitter relationships with others. He did not by his cross-examination establish that fact.
The father sought to establish that the mother had breached an order that she ring reverse charges when overseas so that the children might speak to the father.
Her evidence was that she did not ring because the father had said not to reverse the charges. She nevertheless gave evidence of trying to call from the United States of America on Christmas Day but being unable to get through on the mobile phone that she had. The Court accepts the mother’s evidence that alternative means were not available because at the time she was in a snow hut in Colorado.
It is unfortunate that the father was not legally represented and time might have been saved. Some of his questions, although alleged to be put on the basis of background, sought to undermine the decision of Justice O’Ryan made in the matter and his findings. Despite being warned on a number of occasions that the Court was not a court of appeal from the decision of His Honour and that it like he was bound by those findings (there not having been an appeal from the decision), he continued to seek to investigate matters which did not have currency or which had already been the subject of determination.
It emerged that his case was that, although he had been a philanderer and had made many mistakes, he did nothing other than his best for his children and that the relationship between him and the mother did not deteriorate until after she was told by the father that he and his new partner were planning to have a baby.
He then portrayed a conspiracy involving the police and the mother’s father (then a public official) and the mother in a deliberate process of dissipating his assets and destroying his business.

This, he said, was also accompanied by an attempt by the mother to keep his children from him as he saw it.
He called in aid of his assertion that he was a good father evidence of events which had occurred prior to the parties’ final separation and since.
To give the father credit he was eager to put before the Court that the failure of the marriage was entirely his fault. He also conceded in fulsome terms that the mother was a good mother.
He then suggested that the children had not had to go to hospital whilst in his care but had to do so whilst in the mother’s care. There is nothing in the evidence which would allow me to draw any adverse conclusion against the mother or favourable conclusion in support of the father from the evidence on this assertion which is likely accurate.
The father conceded that he had been arrested overseas and charged with various offences to which he had pleaded guilty. The evidence was that he had been admitted to a number of psychiatric hospitals and it appeared from the reports that he suffered from psychiatric illness. He adduced evidence at his criminal trial as to his mental state as a mitigating matter in those proceedings. In these proceedings he adduced evidence from his psychiatrist referred to later in this judgment. The father acknowledged the stupidity of what he had done and contrition for doing it and regret at the effect it had had on those concerned including his children by the mother.
Dr Q in prior proceedings had reported in March 2004 that he was suffering from a bipolar disorder. In her report, however, she took the view that his time with the children need not be supervised, however that report was at a time when he was living with H’s mother and prior to his removal of the child H overseas without the consent of her mother and whilst the father was living with her. Supervision which had previously been ordered was reinstated.
The father sought to elicit in evidence he using public transport conveyance to travel to the Newcastle area was an unreasonable request and that the mother should continue to bear the burden of bringing the children to Sydney and returning them to the Newcastle area on each occasion that they spend time with him. The Court accepts that it is probable that whatever means are employed by the father to travel he suffers a degree of pain and discomfort.
Other cross-examination of the mother by the father sought to establish that she had breached orders of the Court and had not demonstrated that ability and willingness to foster that close relationship between the children and himself that is appropriate, and that she had exaggerated the effects of such behaviour as reading the reports and going through them with the children. The father sought to establish that the mother had “done everything to try and disqualify me, inhibit me, disadvantage me, with a relationship with my three children”. The Court on the evidence does not so find.
He said that the mother had cancelled piano lessons to remove a specific link between R and himself. The mother said that this was not so, although she had cancelled them because she could not afford them. The Court accepts the mother’s explanation.
There were other matters put to the mother of this nature and the Court accepts the explanations given by the mother in each case. There was cross-examination which covered the time when the father took the children to the outback without informing the mother and the whole of that cross-examination only cast a critical light on the father.
It is frequently difficult for litigants in person to conduct cases but there was in this case a degree of continuing repetition in questions asked and it continued despite a number of warnings. Some of the questions were of minimal relevance or weight in the ultimate determination of the issues in this matter.
Many of the allegations of the father were met by denial and, notwithstanding the submissions of the father, the Court accepts that the evidence of the mother was given in a truthful fashion. On the whole, the Court finds that where there is conflict between the mother and the father, unless otherwise specified, it prefers the evidence of the mother.
The Court finds on the totality of the evidence, taking into account some breaches of directions and non-compliance with orders, that the father’s assertion that the mother sought unreasonably to deny the father a relationship with his children is on the balance of probabilities in an overall sense not the case.
Indeed the mother has been particularly active in bringing the children to the father, in hospital, in prison, to Sydney and undertaking a significant burden in driving to achieve contact between the children and their father in accordance with the orders made.
She has offered additional time to the father when she has been late arriving and on a number of occasions such offers have not been taken up.
Although the father challenged the mother that she had cancelled times otherwise to be spent by the children with him she said, and the Court accepts her evidence, that it was by reason of his absence or the inability of the father’s mother to supervise which caused the cancellation on a number of occasions. That time was in any event, it seems, made up. Other changes in time have been at the request of the paternal grandmother, the nominated supervisor, of the time spent by the children with their father. In giving her evidence the father’s mother, with one exception, agreed with the propositions put by the mother as to these changes.
The father spent a time in cross-examination canvassing his involvement with the children. It seems that such involvement was in many respects agreed with by the mother. On occasions she said that the father’s alleged involvement was the subject of exaggeration. She conceded that she left the children in his care on occasions usually for short periods. She also conceded that the father’s mother cared for the children whilst she undertook some study.
The mother said that J and M were not particularly close and indeed did not get along on occasions. On some occasions they did play together.
The mother’s evidence was that she had stayed in Sydney overnight on some occasions with friends but not on a regular basis and ordinarily returned to her home on the Sunday evening.

The Father’s Evidence in Chief

The father’s evidence was given solely orally since he had not filed any affidavits in the proceedings.
The father was in the witness box for some time. His “evidence” was a mixture of evidence, submission, opinion and conclusion and some of it was relevant to the issues before the Court and some of it was not.
The father by way of background gave some evidence of his marriage and the birth of his children and relevantly said that he acknowledged that the mother was a good mother and, in his words, by and large a good wife.
The father conceded that he was a philanderer and was not a committed husband, although he asserted a good provider and protector and said that he had, during the marriage, provided emotionally, psychologically and physically for his children.
The father gave evidence that the children had been safe in his care.
He recounted his affair with Ms T. He had separated from the mother when he told her that he and Ms T planned to have children and the mother consulted solicitors. This, he said, was a turning point in his life.
He then gave an account of what he said were false allegations of violence and charges which he said were trumped up by the mother’s father and police. He described the process leading to the mother’s moving away from Sydney.
He gave evidence that his partner Ms T became pregnant and had a child.
He said that he became a nervous wreck and physically deteriorated. He had a grand mal epileptic seizure he said when he left the hospital after his child by Ms T, H, was born. He injured his back and shoulder as a result. His back he said was fractured in two places.
The proceedings between himself and the mother were resolved by a Judgment of O’Ryan J on 13 January 2005. This is a judgement with which he disagreed but no appeal was pursued and the father acknowledged that he and the Court were bound by its findings.
The father described promises that had been made by Ms T to him about the provision of accommodation, notwithstanding whatever vicissitudes might assail him and he said he accepted and relied on that promise. He asserted that Ms T went back on that promise at the time that their relationship deteriorated.
Ms T said, he asserts, that she was going to take their child to the United States of America and that he would not have a place to live.
He procured an agreement to be able to see their child and her Australian passport and bought a return ticket to Singapore for a period of three weeks. He however remained away for a period of five months. On his arrival in Singapore he telephoned Ms T and required of her that she put in written form (presumably binding written form) the financial promises that she had made to him. He sought undertakings as to the child’s continued residence in Australia and as to her religious upbringing. He said that he would not return to Australia until those matters were finalised. He moved with H from Singapore to Malaysia. He conceded in these proceedings that he had thereby done wrong. He had made, he said, a grave error of judgment. It was, he said, the wrong thing to do to all his children. The Court accepts that it certainly was, to look at it with the kindest view, a grave error of judgment.
It was, he said, the wrong thing to do to Ms T. He said that Ms T’s mother’s contact with him was recorded and scripted by the police. He left Malaysia and went to another country. He was supported financially by some family and friends who were charged subsequently with aiding and abetting a crime.
The father was arrested. Extradition proceedings were proposed but the father, on being advised, returned to Australia voluntarily.
He was arrested, imprisoned and refused bail. He was detained for about five months in Gaol when he was by Supreme Court order admitted to bail on conditions. Ultimately, on a charge of kidnapping he was sentenced to time served following a plea of guilty. It appears that the aiding and abetting charges were dropped he said, as a result of an agreement with the prosecution in return for the plea.
The father admitted himself to psychiatric hospitals he says as a voluntary patient. He came under the care of a Dr N who prescribed medication for him. He denied that he was depressed but said that he had taken anti-depressants and Valium to assist him cope with anxiety, and pain killers to help him with the pain in his back and legs.
He described his relationship with the children as being good. He described an outback trip he had taken with them. He said that at that time the mother (in his view, unnecessarily), contacted the police who pulled him over because he had a problem with his car which was overcome.
The mother did not allow the children to extend the holiday by any further time than was allowed by the orders and the father asserted that he had never broken an order of the Court and, although contrary to the children’s wishes, he had returned them on time. He observed that the mother had broken orders.
He said that he loves his children equally and that the two youngest should visit him together so that there can be seen to be no differential between their treatment or his affection for them, and because they get along well with each other. R, he conceded, makes up her own mind. However, he said that his relationship with R was improving and they were beginning to re-establish communication.
The father said that his mother was to some degree willing to supervise his continued contact with the children but she is, he said, disinclined to do so. Her husband had been admitted to a nursing home and she, he said, was committed to visiting him which she does every day for three or four hours. She takes the view, he said, that her supervision of the father is totally unnecessary.
The father could not suggest supervisors other than the mother. The father said he was not able to travel to Newcastle by car or otherwise because of the pain from which he suffered in the back.
He therefore proposed that the mother do the travelling and stay overnight in Sydney with either his joint friends or members of her family, who he said resided in Sydney. She could, he said, also stay with her father at his Sydney apartment. He asserted that the mother was financially comfortable and he was not and was receiving a disability pension.
He maintained that the relationship between himself and the mother was not acrimonious and that the suggestion that it was, in effect, was a construct for forensic advantage. The accusations made to the mother in his cross-examination of her did not give the Court the impression that the relationship was without acrimony. He said that he did not say to the children anything to the detriment of the mother or her family.
The father said his purpose in coming to Court was to get to see his children once every two or three weeks on an unsupervised basis and for two or three days during the holidays. He also wanted telephone contact with the children via the mother’s landline two or three times per week. He also wanted to see them on Christmas Day.

The Father’s Evidence in Cross-examination

The father confirmed that he was currently taking on prescription Temazepam and Valium. He suggested that he was taking them to assist with sleep. They were, he said, prescribed originally by Dr N but now by a local general practitioner. He said that he had seen Dr N about five weeks ago, being in July 2010. Prior to that he had seen him on 4 February 2010, in other words in six monthly intervals on the doctor’s recommendation that that was all he needed to see him. The father admitted to suffering from insomnia and anxiety.
He had first seen Dr N in gaol in approximately 2007 and knew of him being used forensically and knew that his father, a solicitor, had so used him. The father procured a report from him for use in his bail application. The doctor had prescribed a number of drugs for the father including Effexor, Epilim, Syprexa, Largactil and Valium. It was then Dr N’s belief that the father was being treated for bipolar disorder and panic disorder.
As recently as February 2010 the father was said by Dr N to have been under his care since 2007. He was suffering from bipolar disorder, generalised anxiety disorder and chronic pain disorder. In a report which became exhibit 4, the doctor said that the father was being treated with drugs including Codeine Phosphate for pain, Diazepam, Oxazepam, Temazepam, and Alprazolam. That report was procured when the father was charged with driving under the influence of a prescription drug and negligent driving. The father says and the Court accepts that he was found not guilty of those offences.
The father said that he was currently not on any medication for bipolar disorder, severe anxiety disorder or panic attacks. He admitted to being on a mood stabiliser at the time that he took H overseas in 2006.
The father admitted to being addicted to benzodiazepines on a couple of occasions. When questioned why he did not disclose this to Dr Q, the father stated that he was worried that it would be used against him in his custody battle for his children.
The father was questioned about the relationship between Dr N and his father and it was his evidence that it was purely a professional relationship.

Dr N confirmed this and the Court accepts that this was so.
The father agreed that his actions have had negative consequences on his children, in particular causing distress to them. He admitted that he felt very guilty about putting his children through this distress. The father stated that he didn’t think he was thinking properly at the time when he took H overseas, but that to some degree he did take into account what impact his actions might have on his children. He said there were a number of competing elements occurring at this time, and that he was he said psychologically agitated, anxious and upset.
It was put to the father that he was suicidal when he was in gaol in 2007. The father denies that he had any suicidal ideation or that he was suicidal at this time.
It was put to the father that Ms L believes that his commitment to the children appears lacking and he has made limited attempts to attend significant events in their lives. The father disagreed with this opinion and stated that he had been to the Newcastle area many times.
Under cross-examination by the mother, the father was questioned whether it would be beneficial for him to seek consistent and proper management of his bipolar disorder, to which he stated that he would be prepared to do so if she wants him to, and that he may benefit from it.
It was put to the father in cross-examination by the mother that in 2011 there had been monthly visits, and while on occasions they had been postponed or delayed by herself, the father or the father’s mother, that in fact they had occurred. The father was unable to confirm whether all the visits had occurred and asserted that his mother would know as she had these recorded in her diary.
The father gave evidence that he believed the children were coached to give information to Ms E, who conducted interviews with the children to ascertain their views about the contact over Christmas in 2010. He asserts that they were coached to say that they didn’t want overnight contact with the father and that they preferred to live and sleep at the mother’s place. Having heard Ms E’s evidence to the contrary, the Court accepts that the children’s views were not expressed as a product of “coaching.”

Evidence of the Paternal Grandmother

The paternal grandmother filed an affidavit on 11 January 2011.
The paternal grandmother gave oral evidence on two separate occasions at the hearing.
She gave evidence that she used to manage the father’s medication, but no longer does so, and that he manages his own medication.
The paternal grandmother gave evidence that to her knowledge the children do not call the father twice a week as per Court Orders.
She gave evidence that the contact arrangements are often changed by the mother, and on some occasions missed and not made up the following month. She admits that sometimes arrangements have been changed by her, but not by the father. It was her evidence that in 2011 the mother had cancelled three visits that were to take place on 1 May, 29 May and 13 August. She admitted that the father had cancelled a visit on 6 August as he attended a memorial mass for a friend. It was conceded by her in cross-examination by the mother that there appeared to be only one occasion on which complaint could be made and that she had not read her diary correctly. The one occasion remained in issue.
The paternal grandmother was of the belief that supervision was no longer necessary.
She gave evidence that the father does not denigrate the mother or her family in the presence of the children, and that he does not talk about the proceedings in the presence of the children.
The paternal grandmother stated that she loves spending time with the children; she loves them dearly and has a lovely relationship with them. However, while she wants to continue spending time with them she said that supervision was a problem for her as she visits her husband in the nursing home every day.
On the second occasion that the paternal grandmother gave evidence in August 2011 she gave evidence about the children’s visit with the father over Christmas in 2010. She stated that to her knowledge the children did not ring their mother and did not ask to ring her. She also stated that she felt the children were relaxed and happy spending time with them.

It was her evidence that the relationship between the father and R had certainly improved; that R had been invited to stay in Sydney and was happy to stay with them. She also stated that she was aware that the father had taken her to the theatre and they went to watch Mary Poppins together.
It was the paternal grandmother’s opinion that in fact the conclusion drawn by R, as stated in Ms E’s report, that M and J needed supervision when they were spending time with their father was not possible, as R had not spent time with the children while they have been with the father.
The paternal grandmother was asked both by counsel for the Independent Children’s Lawyer and the mother where the father lived when she was overseas in March. It was her evidence that she was not sure but believed he lived at her house part of the time and with friends other times. She also stated that he currently lives with her, and has on occasions spent some time living with friends, but she could not indicate who those friends were.

Evidence of Dr N

Dr N gave oral evidence at the hearing by telephone on two separate occasions.
Dr N gave evidence that his relationship with the father and his father was purely a professional one, and that he did not know the father’s father on a social basis. He stated that he saw the father in gaol after being contacted by the father’s father, but that he did not speak to him once he took on the father’s case.
Dr N stated that he was seeing the father once a month in 2009, but that the frequency of the visits had become less in 2010. He said this was because the father had improved and was now mentally stable. He also said that the father had been weaned off a lot of the medication he had been taking, and thought that he could be managed by his general practitioner.
Dr N confirmed that the father was only taking Valium and Temazepam, and has not prescribed anything else for him.
An altercation which occurred between the father and a nurse at a Hospital was brought up by Dr N when speaking about the father’s behaviour. He clarified that the report of the nurse may not have been entirely accurate and that he could not recall any other incidents between the father and any staff or patients at that Hospital or a second Hospital when he was there.

Dr N confirmed that had the father’s behaviour been consistent and inappropriate he would have been placed on the “banned list” and not permitted to return to that hospital, which never occurred.
Dr N had diagnosed the father as having chronic pain disorder due to an accident he was involved in which caused him to break his back. Dr N gave evidence that this pain seems to have improved and that the diagnosis needs to be reviewed. Dr N stated that it is a common clinical situation that the father’s back pain could contribute significantly to his depression and anxiety.
Dr N stated contrary to the father’s evidence that at the time the father was in gaol he was very depressed and had suicidal ideation, but that over the years that suicidal ideation has gone away.
Dr N’s evidence was that the father had been off the anti-depressant drugs since June 2009, and that he had done considerably well coming off the medication, and that if he had a serious mental illness he would have expected some signs of recurrence in that timeframe. Dr N considered that the father had no medical condition currently that would have an adverse affect on his children.
It was Dr N’s evidence that he has revised the father’s diagnosis of bipolar II as he became aware that in 2006-2007, when he was in overseas, he was taking doses of Tramil which could have interacted with another medication he was on, Avanza, and that this caused the father to have a clinical, hypermanic condition.
Dr N clarified that the father had never had a manic episode, but rather that he had had possible hypermanic episodes which is a bipolar II disorder, and he distinguished this from a bipolar I disorder. He said that the standard treatment for this was a combination of mood stabilisers, anti-psychotics and sometimes anti-depressants. In regard to the treatment of the father, Dr N said that he had taken information from the father and his mother to help with his analysis and consideration of the father’s progress, and that it wasn’t just self-report from the father.
Dr N provided evidence that the symptoms of Bipolar II Disorder are of lesser severity to Bipolar I Disorder, in that it doesn’t actually impair one’s psychosocial functioning, and that you have hypermania rather than a full-blown manic episode. He said that hypermania may be associated with depressive episodes, and is not usually a chronic condition. He stated that if you had a single short episode of hypermania and you made a full recovery, then you would be just as normal a parent as any other parent.
Dr N stated that the father currently had no mental condition that would have any adverse affects on the children. He stated that there is a question of future risk should his condition change, and if contact was unsupervised at this time. He said that it is not possible to predict the future but that he could be closely monitored to see if there were any changes in his mental state and thus any risk.
It was Dr N’s evidence that Ms L’s opinions were too harsh in criticising the father for his lack of contact with his children, and said that his medical condition at the time needed to be taken into consideration.
Dr N stated that he would be happy to see the father on a monthly basis to monitor his progress. He also stated that there is the security of the father’s mother being around as an added back-up, in that she would contact Dr N if there were any problems or concerns in between visits.

Credit

The Court did not find all the evidence of the mother entirely satisfactory. There tended to emerge, as is the case often with self-represented litigants, a discourse on some matters which strayed from the question and the mother had to be brought back to the point from time to time. I found some of her evidence in relation to her attempted compliance with orders less than totally convincing but by and large I accepted her evidence as truthful.
The father had a clear bias as to the reasonableness of much of his behaviour, but to be fair to him he did acknowledge that his removal of the child H overseas and his absenting himself from his children was an extraordinary error of judgment.
The father also strayed from questions asked of him and had to be brought back to the point on occasions. The father’s evidence-in-chief and re-examination was also a mixture of evidence, submissions and opinion, and he needed to be reminded to stick to the facts. It did not appear that he was deliberately trying to be evasive, but rather that he wished to express his views and was well-meaning if lacking discipline and control in his delivery.
The only finding the Court makes on credit is that where there is conflict between the evidence of the mother and that of the father then, unless otherwise indicated, the Court prefers the evidence of the mother.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration (see s 60CA). In determining what is in the children’s best interests, I must consider certain matters under s 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section (see s 60CC(2) and (3) respectively).
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the children’s best interests being treated as paramount (see s 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under s 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, 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 for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Where I propose to make an order that the children’s parents are to have equal shared parental responsibility for the children, s 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

There is seen in most cases a benefit to a child in having and maintaining a meaningful relationship with each of his or her parents. In this case there is no doubt that J seeks such a relationship with his father. The position is not so clear in relation to F who, although aged 13 years, is said to have reached a stage of development of a child some three years younger in certain fields. Nonetheless it is the Court’s conclusion and acknowledged by the mother that the children will benefit from a continuing and developing relationship with their father. There is genuine affection expressed about the father and by him and it appears that the father has a positive contribution to make to the development by these children of their full potential. The father also acknowledges the parenting ability of the mother and the need to maintain a meaningful relationship between her and the children.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

A major concern of the mother in these proceedings is the belief that the children are at risk from the father whilst they are in his care unless those times are supervised. Such a concern has a valid basis in history. The father’s history includes the abduction of a child (not of this marriage) overseas and an attempt to barter his return with the child, he says, against compliance with a promise for the payment of money. The father served a short time in gaol in respect of those matters. Whatever the father may say as to the need for such concern the Court is satisfied that the mother genuinely feels it.
The learned sentencing judge described the level of criminality in relation to the abduction offence as low. He also spent time in psychiatric hospitals. He had severe anxiety disorder, depression and had been diagnosed with bipolar II disorder. In February 2009, Dr N indicated in a report that the father was in a severe state of depression and that his psychiatric diagnosis at that time was bipolar disorder, panic disorder, chronic pain disorder and opiate dependence (Panadeine Forte).
The father asserts that a contributing factor to his mental state was an accumulation of catastrophic events in his life. Those events included loss of income, money and property and the failure of two marriages.
The mother had also previously instigated the commencement of proceedings for apprehended violence. Those proceedings were dismissed and adverse comments were made as to the credit of the mother by the learned judicial officer.
As against that history the father has been continually under the care of his treating psychiatrist, Dr N. Dr N has been the father’s psychiatrist since approximately 2007. He attended on him on many occasions. Some of those occasions have been telephone contacts. Dr N has given evidence that the father has been fully compliant with his directions both as to the taking of medication and attending appointments. He is described by Dr N as reliable in that regard. Although he says that he was previously more heavily medicated, he is now only taking Temazepam and Valium, and occasionally pain killers from time to time. Those drugs are prescribed for anxiety and the procurement of sleep. He is not presently depressed he says. He appears to have ordered his life and, in the view of the psychiatrist, presents no danger to his children. He says however that the future is not something about which he can be certain. He confirms that the father has expressed contrition for his past conduct. It seems that the father recognises that his actions were wrong and stupid. He has developed some insight it appears into the effect of his conduct. Dr N puts in doubt the previous diagnosis of the father as suffering from bipolar 1 disorder. He has the advantage in that regard of long term association with the father.
On the totality of the evidence, the Court does not find that there are reasons related to the father’s psychiatric condition which would prevent him from seeing his children and seeing them on an unsupervised basis whilst he is in his current state of health.
There may be reasons though for retaining the supervision at least for some further time and at least in some way. This would be to provide some assurance to the mother given her continuing concerns. It is important for the children that the mother be content with arrangements for the children to spend time with their father. If the mother, as appears to be the case, becomes herself anxious as a result of unsupervised time being spent with the father that could rebound on the children adversely and indeed on the building of their relationship with the father.
It is the view of the Court that as the children become older and better able to act individually, and providing the father maintains health and that otherwise there are not conditions of conflict which would contra indicate it, that the supervision can be removed. The mother has expressed the same possible vision of the future and the Court accepts that that is a genuine expression of her view.
The evidence was procured of a social worker, Ms L, who prepared a Family Report. A further report was prepared by a Ms E, a social worker, who interviewed the children more recently.
At the time of the hearing the report of Ms L was significantly out of date, having been prepared in November 2009. It had been prepared with the deficit that the reporter had not been able to observe the father with the children, even though the reporter had previously had contact with the father when interim orders were made in the matter.
The reason that Ms L did not have that benefit was that the father, by reason of his inability to travel to Newcastle at the time, could not make the interviews. The reporter was unable otherwise to arrange to see the father with the children. The reporter gave evidence of statements made by the children and the reporter was cross-examined. The Family Consultant, based on her investigations and observations although limited in the manners described, made the comments set out hereunder.
R described her relationship with her father as very difficult and complicated. It seems however that since that report was made, R, who is 18 years of age, has reacquainted herself with her father and is presently enjoying a friendly relationship with him. She had observed to the Family Consultant that her father made her feel “nervous” because of the pressure he put her under. It seemed to the Consultant that the child was at the time expressing views which were formed by her. For all that, the child said of him that he was caring and fun when he was in a good mood. She reported that she “missed him being the great Dad he could be at times.” The child described a loss of trust in her father but willingness to again trust him if he fixed his life up a bit. She commented that he needed to be more consistent in his emotional state.
It seems that Dr N has observed a change over the last year and that the father is much better than before and he stated,
I actually considered that you had been well for quite some time and, by June last year, I considered that you could be weaned off the - most – just about all of your medication and you could be managed by your GP.
and he also said that the father has been “mentally, very stable”. R described J as loyal to his father and in need of a male influence.
The Family Consultant said of M that she was a confident and strong-minded child who had been diagnosed with Pervasive Development Disorder. At that time she expressed a desire for autonomy in an ability to determine when she wanted to see her father. She said that she would see her father overnight if she really had to but she also said that she had had to see him a lot when she was little and it was too much. She indicated that she wanted the judge to know “I should make the decision and going to Dad’s once a month is ok. I don’t mind if [J] wants to go, he can go whenever he wants.”
There appears in the mind of M a recollection of a past in which she was, as she puts it, unfairly blamed for things that J had done. She saw J as being preferred by her father over her. She had good relationships with both her paternal and maternal extended families. It is in part for this reason and in order to perhaps provide M with as comfortable an atmosphere at the time she visits her father that the Court will continue at this time the order for supervision. It is hoped that with that degree of comfort being provided the child will perhaps develop a greater enthusiasm for the time she spends with her father to the point where supervision is no longer seen at least for this reason as necessary.
J who was then nearly 9 also presented with special needs in the form of Pervasive Developmental Disorder. He reported that things were good at his dad’s. He reported he enjoyed talking to his father about things. He expressed the view that he was not seeing his father enough, but said in a balanced way that that had the advantage of enabling him to do other things such as engage in sport and chess locally. J was clearly affected adversely by the father’s departure overseas with his daughter H and said that he did not know that he had gone away. He said that he felt happy and sad and angry at this time. He knows his father went to gaol because he went overseas with his daughter. The child said that he missed his father when he had not seen him for a year. He remembers seeing his father in a psychiatric hospital at a time when “he used to change his feelings a lot.” He enjoyed spending time with his father at his paternal grandmother’s home, stating “it has been good”.He wanted to see his father “maybe every second Sunday and a sleepover for the holidays”. Although, he clearly expressed on one occasion it was not necessarily his final word on the subject and a subsequent comment put it a little in doubt. Nevertheless it is clear that the child wants to see his father.
The father has been described as manipulative and intimidating of his children. It is the Court’s view that the father is somewhat self-absorbed and his conduct of his case indicates his determination to follow his own path irrespective of rulings that it is a path not to be trod. The father asserts that his Court demeanour is not reflective of his demeanour aliunde.
The father will have to recognise that given that the children will continue, it seems, to reside in the Newcastle area that the children will be entitled to follow a social life in that area which will involve commitments to extra curricular activities.
The father has to learn the importance of not overbearing his children and doing all that he can to encourage a meaningful and positive relationship between his children and their mother and the mother’s family.

To do otherwise is a form of abuse of his children who appear to have close and loving relationships, not only with their mother, but also with the maternal extended family. If the father seeks a positive reaction to himself and his family he must promote the like view of the mother and her family. I am sure that such conduct would be reciprocated by this mother.

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

The children have expressed the views described above.
The father has given evidence that the children have been happy to spend time with him and J has expressed a desire to spend more time with him. In his submissions he stated that he now has good relationships with all his children, and that in particular M has expressed that she wants to see the father and his extended family more.
The father’s mother has given evidence that when the children spent overnight contact with the father at Christmas in 2010 that they appeared happy and relaxed. She recalled that M had said she would like to come back and stay overnight again. She also stated that J expressed, following the interview with Ms E, that he wanted to spend more time with the father except that it was a long drive. It was also her evidence that M is always asking about her cousins, aunts and uncles, which in her mind indicates that she wants to see more of the father’s family. She gave an example where M had asked to send an email to her Aunty … who lives in Europe.
It was the mother’s submission that the children are older now, being aged 13 and 10, and that what they want is important and should carry some weight. She stated that both children have stated very clearly that they do not want to stay overnight, as stated in Ms E’s report.
The mother did acknowledge in her submissions that she believes that having the paternal grandmother around for contact visits fosters a closer relationship with the father’s family, and increases the children’s desire to want to go spend time with the father. She said that both children talk about doing activities with the grandmother such as sewing, cooking, and playing cards.
The mother also acknowledged that the relationship between the father and J had improved significantly since the incidents that occurred in 2006 and 2007, and that they now share a loving and close relationship.
The views expressed by each of the children are assessed by the reporter

Ms E as not being the product of influence or persuasion but genuine expressions of view. The child R is not only mature but is 18 years of age. No order can be made with respect to R and she can create her own arrangements for visits to her father. It seems that that relationship, on the father’s evidence, is happy and contented.
A social work report addressed the children’s views regarding contact with the father, in particular addressing their views about the overnight contact at Christmas in 2010. She formed the opinion that the children were relaxed and comfortable in talking about their views.
The views of both M and J are said to be their own. Of more recent times to those reported in the Family Report both children have expressed that they would prefer to spend Christmas, Easter and birthdays with the mother, although M was willing to negotiate Easter. They said they would be willing to spend time with the father before or after these special occasions. They have also both expressed concerns about overnight contact.
M has said that she spends less time with her father’s family but that she would like to get to know his side of the family better. M also expressed that it was only fair that she should be involved in decisions that influenced her life.
M indicated to Ms E that she is mindful that R was self-directing of contact with her father since the age of 13, and believes her views should be considered and noted that they may change as she gets older.
With regard to the contact that occurred at Christmas and whether she enjoyed the visit, it is noted in Ms E’s report that M stated:
Yes, it was good, but I was pretty upset and angry that we had to spend Christmas Day with dad. It was all right, but I would have preferred the visit before or after Christmas.” When asked why she was upset and angry, [M] replied, “I do want to see dad. The Christmas visit went okay, but I did not want to spend Christmas Day with dad. Any time before or after Christmas would have been better. I was upset because I had to stay overnight with dad. I want to spend Christmas Day and also my birthday with mum.
Ms E stated that from M’s perspective, she wants to remain living with her mother, R and J. She noted the importance of seeing her father but noted it should be on her terms stating, “I don’t want to offend my parents. I am not trying to offend Dad but I only want to see him every second month, I want to spend time with Mum and do other things”. While M would prefer for contact to be every second month, she would accept monthly visits. M also stated that she preferred to see her father and paternal grandmother together, indicating a desire that her grandmother continue to participate in contact visits.
M has also expressed a view that she does not want to spend overnight contact with the father and away from the mother, but that if she had to then every second month would be okay. Nevertheless, she remained insistent that she would be very unhappy and upset if she was required to remain overnight with the father. She preferred for day visits to occur for 4-5 hours, and to be returned to her mother in the afternoon.
M indicated that the father needed to be flexible, especially if planned contact days clashed with birthday invitations or other special activities. She indicated that in the past the father would get angry if visits were changed, and she saw this as being unfair. She also noted that the father needed to be accepting and supportive of her wishes.
In relation to school holidays, M displayed no interest in gaining more time with the father, saying she would prefer every second month or monthly day visits only. In the event that extra visits were arranged for the school holidays she requested no overnight stays be arranged.
M expressed a desire to spend time getting to know her father’s family and displayed an interest in spending extra time with the father if the extended family were visiting or there was a social activity which included the extended family.
Ms E noted in her cross-examination that M’s IQ of 80 was not really a relevant factor, as that was more a measure of raw intelligence, whereas the interview with M was about her experiences and her views about those. She stated that M was very clear in her opinions and had reasons as to why she had formed those opinions.
In Ms E’s report it is noted that J stated, “I don’t want to do that again. I would be angry if I were made to do that again” when asked about the contact over Christmas. He said he would prefer to see his father either before or after Christmas, nevertheless, he did express that he enjoyed the visit. He also stated, “I don’t really want to stay overnight. I can’t explain, but I would be more comfortable in going home to mum.” He said he would be angry if made to stay overnight with his father and stated he was very sure about his preference for returning home to sleep in his own bed.
J expressed that he was happy living with the mother and did not want this to change, and also stated that the maternal grandparents were very important in his life.
According to Ms E’s report, J would like to see his father on a monthly visit provided it is a day visit as he is opposed to overnight contact. He likes the current telephone contact and does not want that to change.
With regard to school holidays J did not have a preference for the time to be spent with the father, however he expressed that he did not care so long as it was not overnight contact.
J expressed that he thought his father would understand why it’s important for him to spend time with his mother, other family members and friends. According to Ms E it was important to J that there was flexibility in arranging contact visits with his father.
Ms E concluded that the children’s primary attachments are to their mother, their older sister and maternal grandparents. She also stated that friends are playing an increasingly important role in their lives and do not want time taken away from social and leisure activities they share with friends.
Ms E confirmed and concluded in her oral evidence that each of the children had very clear views regarding the contact they want with their father.
The views expressed by these children will be afforded some reasonable weight but they will not be decisive. The children, although suffering from Pervasive Development Disorder, do seem to be able to articulate their feelings for their father, and in the mind of the Family Consultant, can do so as a product of their experience and not as a result of influence.
The Court notes that the father will have to be sensitive to the children’s views but the Court nevertheless take the view that it is in the children’s interest to have a greater experience of their father and their father’s extended family than would be permitted by just day visits. However, in part in deference to the children’s presently expressed views, the occasions of those longer visits will at this time be limited in number.

(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)

The children it appears have a good relationship with both their maternal and paternal extended families. They have the benefit of cousins in the case of each family. The relationship of the children with the father has been affected by his conduct in the past but the impression the Court has is that this is changing as the children develop maturity.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

Ms L stated in her evidence that she believed the mother had been attempting to promote the relationship between the father and the children. She said this was evidenced by her agreeing to interim orders which have allowed M and J to spend time and communicate with the father, as well as inviting the father to various activities and events involving the children. On the other hand she stated that she had concerns for the father’s ability to promote the children’s relationship with the mother.
Ms L stated that the father:
… has not shown an ability or willingness to facilitate and encourage a close and continuing relationship between the children and the mother as evidenced by him blaming the mother for [R’s] lack of relationship with him.
It was submitted by counsel for the Independent Children’s Lawyer that

Ms L’s views were supported. It was also submitted that during the course of the trial that what the father thinks of the mother is that she does not get the children to ring him; that she is always late and sometimes does not even turn up; that she is a delinquent parent and a liar; that she breaks court orders; and that she has taken R away from him and is now starting with the younger children. However it was indicated that there is not much in evidence that the father has conveyed these views to the children.
The mother has expressed that she has no concerns about the father’s ability to care for the children if the paternal grandmother is there to supervise. In the Family Report the mother raised concerns about the father’s mental health, and that if this is not properly managed and he becomes unwell that his behaviour may become erratic and unpredictable towards the children.
In her submissions, the mother stated that she believes the father still has a very negative view of her and her family, and was concerned that if there was no supervision that the father could possibly subject the children to tirades of abuse. She stated that if his negative views are passed on to the children it would be damaging to them and would undermine their whole sense of self and what they do.

(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

The children have previously spent time with their father, but have expressed concerns about having overnight contact. Both M and J have expressed that they are happy to have day contact with the father.
Both children have also expressed the desire to spend special occasions such as Christmas, Easter and birthdays with the mother and the maternal family.
Ms L’s opinion in her report was that the father’s proposal of spending every second weekend and half school holidays with the children would be a dramatic increase in the time they spend with him. She stated that M was clear that she did not want to spend increased time with him, and has expressed that she should have choice about how much time she spends with him. It was Ms L’s opinion that should it be ordered that M spend a greatly increased amount of time with the father that it is likely she will object and may refuse to attend. With regard to J, she stated that he presented as ambivalent regarding time with his father, possibly due to a concern that the father may disappear again, however he had expressed views to spend more time with the father. The Court expects that the mother will support the implementation of the orders it proposes to make and given their limited nature expects that M will, given that encouragement and support of the mother comply with them.

(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

The father asserts that there are practical difficulties with communication with the children via Skype and Facebook as he considers himself to be computer illiterate. The father also asserts that he does not have transport to allow him to travel to the Newcastle area to spend time with the children, and that public transport takes in excess of approximately 3 hours from Sydney. The father admitted that as he has a pension card it only costs him about $2.50 return to travel to the Newcastle area.
It was put to the father that in fact there is a Countrylink XPT train which leaves from Central … three times each day, and takes approximately 2 hours and 45 minutes, which the father could catch, if he was concerned about spending excessive time on public transport due to his back pain.
The father expressed that there was difficulty in the mother facilitating telephone communication two nights per week with the children. He insisted that he be allowed to know her landline home telephone number as he felt that only having her mobile phone number made it difficult for this communication to occur. The mother objects to the provision of her home landline but says that she will arrange for the children to call back on receiving on her mobile telephone a text message or telephone call from the father. The Court accepts that she will do so. In the circumstances and in order not to create a climate of apprehension in the residence of the children it will not require of the mother the provision of her landline number.
The mother asserts that it is already difficult for her to drive to Sydney once a month let alone every second weekend. The court accepts that the burden sought to be imposed on the mother by the father’s orders is unreasonable. Having said that, the Court does take the view that the mother like the father has a responsibility to the children’s welfare in promoting a meaningful relationship with each of their parents. The Court accepts that there are practical difficulties for the father in travelling. A reasonable discharge of the mother’s responsibilities in terms of travelling is found to be accepting responsibility for the Sydney return travel associated with the time ordered to be spent with the father as a result of this judgment. It is hoped that if the father regains physical health that he will share that burden with the mother in accordance with his ability to do so.
With regard to communication via the internet, the mother stated in her submissions that the father makes no effort to make himself computer literate and that the paternal grandmother has a computer in the home, but that he is just not willing to learn. She submitted that this shows a lack of commitment to not go to that effort to connect to his children. She stated that it would be more beneficial to both him and the children if he made more of an effort.
The mother submitted that if the father was prepared to learn how to use Skype she would want this to happen twice a week with the father initiating the contact. The father said he would be prepared to seek to learn to use Skype.
The mother indicated in her submissions that M has a mobile telephone and that her number could be given to the father. She also stated that she would be prepared to get J a mobile phone if this meant that the father would not be given her home phone number.
In the Family Report, Ms L stated that the mother’s view is that the children spending significant time and communicating with the father is problematic given the need inter alia for supervision. There was evidence also that the father does not take advantage of opportunities to spend time with the children in the Newcastle area due to him not having a car and finding the train, bus and taxi travel painful due to his longstanding back injuries.

(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

Ms L expressed in her Family Report that the issues of concern in relation to the father were his “mental health, his ability to provide emotionally responsive parenting to the children and his ability to promote the children’s relationship with their mother”.
Ms L stated that concerns about the father’s mental health and his capacity to parent in an empathetic way were factors which led her to the view that spending significant time and communicating with the children should not occur. She recommended that the mother have sole parental responsibility; the children live with the mother; spend time with the father every fourth weekend for one day for 5-6 hours; additional time for J is recommended during the school holidays; telephone communication should occur as per the current frequency.
In her submissions, the mother challenged the evidence of Dr N. She was concerned that if the father is not treated properly he could get out of control. She also stated that his abduction of H demonstrated the cruelty he is capable of, and believes that this unpredictable behaviour needs to be considered when thinking about supervision.
The Court notes that the father has had a history of severe anxiety disorder, depression, bipolar II disorder and chronic pain disorder. However, it was

Dr N’s evidence that the father does not have any mental conditions which would adversely affect the children, and stated that he is mentally stable at the moment. The father currently takes one Valium tablet and two Temazepam tablets each night, which he asserts is to treat his insomnia. The attack on Dr N’s evidence did not in the Court’s view succeed. True it is that the doctor’s role is that of the father’s therapist and in that role he would naturally have a supportive relationship with the father. He is not in that sense independent. But having regard to the unavailability of independent psychiatric analysis he represents the best insight available into the father’s present psychiatric condition.

(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

M has Pervasive Development Disorder, Obsessive Compulsive Disorder, Attention Deficit Disorder and an IQ of 80. She attends a special school which has a creative program that appeals more to the way that she learns, and she is regarded as having special needs. She has been held back at school as a result of her disorders.
M attends Girl Guides on Thursdays, which has taught her a lot of skills and helped her a lot socially. She also participates in a Drama class every Saturday and was recently involved in a play.
J has Pervasive Development Disorder, and has an IQ of approximately 140. He is regarded as a gifted child and the mother hopes to send him to a school for gifted children. He is currently in the Opportunity Class at his school.
J is a hyperactive and highly active child and plays AFL on Sundays, basketball on Friday nights, and tennis. He also referees basketball and has expressed an interest to play Rugby League next year which would be on Saturdays. J is also a good chess player and is in the public debating team. It was the mother’s submission that these activities have made him a lot less disruptive both at home and school.
Ms L stated in her oral evidence that:
[I]f children have special needs and appropriately diagnosed disorders then it’s important, particularly in situations where parents are separated and don’t live together, that they both support the treatment plans, any medication and the approaches for both – for the children so that the children have consistent parenting.
She further stated that if there was no consistent approach that this can be confusing for children and trigger them to act out and cause difficulties.
In her submissions, the mother stated that she was concerned that the father is in denial that M has a severe disorder. She maintains that holding M back from school was the right thing to do. She submitted that M has special needs and is going to need support through her whole life, and stated that the father needs to stop denying that and help her more. At the end of the case, having heard all the evidence, the Court gained the impression that the father did gain some insight into these matters.

(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

This is not applicable.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The father did not demonstrate an appropriate attitude to the parental responsibilities he had for his abducted child nor the children of this marriage at the time of his retention of H overseas.
Whilst the father was absent from the children’s lives for a period of time over 2006 and 2007, during which he went overseas for five months and was in gaol for five months, he has since this time tried consistently to pursue opportunities to see and communicate with his children in a committed way.
The father has expressed remorse and contrition for his actions in the past, and has acknowledged that these actions had adverse affects on all of his children.
The father concedes, except in so far as he alleges that the mother is preventing him from having a relationship with his children, that the mother does and has had an appropriate attitude to the responsibilities of parenting. It is the Court’s view that the evidence does not support the assertion that the mother has been obstructive of a relationship between the children and the father . There are, it is true, difficulties in relation to those matters occasioned by the respective residences of the parties but the Court does not place responsibility on the mother for that difficulty. There were, it appears, good and sufficient reasons for her relocation not only for her but also for the children.
The financial support of these children has been most significantly borne by the mother. There is no suggestion that the children have lacked for care in any way in the mother’s care. The father presently is in receipt of a pension and his contribution to the financial support of the children is of necessity small.

(j)any family violence involving the child or a member of the child’s family

There are historical allegations of violence but there has been no conviction for violence.

(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

There is no evidence of any such order.

(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

It is always undesirable for children to be the subject of litigation between parents they love. The Orders that are proposed to be made in these proceedings are, in the Court’s view, the best that it can do under these circumstances and at this time to avoid further proceedings consistent with the need to protect the welfare of the children and facilitate a meaningful relationship with the father.

(m)any other fact or circumstance that the court thinks is relevant

There are none.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

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

Balancing the matters set out in section 60CC and the evidence recited in these reasons, I conclude that the Orders I propose will operate to foster the best interests of these children for the reasons specified above. In particular they will maintain a relationship of the children with their father. They will provide arrangements where that relationship can grow in a climate where the possibility of that growth faltering by reason of anxiety of the mother will be reduced. The Orders do not provide contact between the children and their father of a degree of frequency which does not take into account in some measure the children’s expressed wishes. They will afford with the support of the mother, and hopefully an understanding of the father, a path toward a time when the children can in greater measure enjoy the opportunity of benefiting in a positive way from that contribution each of the parties can in the present circumstances make to the goal of the children achieving their full potential.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence.
Notwithstanding that there may have been family violence, it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is reason for the presumption not to apply.
Given the circumstances of this case, the primary caretaker role of the mother, the geographic distance of the parties, and the conflict which has existed between the parents, it appears to the Court that the parent with whom the children are to primarily live should exercise sole parental responsibility for them. That does not mean, and an Order will be made to this effect, that the parent exercising such sole parental responsibility (the mother) should not inform the other parent of proposed important decisions and hopefully in a timely fashion receive and consider relevant input from the father in the decision-making process. The Court considers that such an Order is in the best interests of these children.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
The Order I propose to make will not be one for equal shared parental responsibility.

The Orders to be made

I therefore propose to make the Orders in relation to parenting as set forth above which the court finds are in the best interests of these children at this time.

I certify that the preceding three-hundred and sixteen (316) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler

Associate:

Date: 7 October 2011

[2011] FamCA 649

7 October 2011

Key Legal Topics

Areas of Law

Family Law