Timms and Timms

FEDERAL CIRCUIT COURT OF AUSTRALIA

TIMMS & TIMMS

[2016] FCCA 2146

Catchwords:
FAMILY LAW – Entrenched parenting dispute about three children aged from five to eight years old – whether children genuinely scared of father – whether children’s expressed reluctance to see father is fomented by mother – whether father presents risk of sexual abuse of children – florid mutual allegations of misconduct between parents – both parents assessed as terrible witnesses – Independent Children’s Lawyer recommending immediate re-commencement of time with father – Court concluding immediate time impossible – family therapeutic counselling ordered.

Legislation:

Family Law Act 1975, ss.4AB, 60CC

Evidence Act 1995, s.140

Goode & Goode [2006] FamCA 1346
Smith v New South Wales Bar Association (1992) 176 CLR 256

Applicant:

MR TIMMS

Respondent:

MS TIMMS

File Number:

MLC 6049 of 2013

Judgment of:

Judge Burchardt

Hearing dates:

18, 19 and 20 July 2016

Delivered at:

Melbourne

Delivered on:

14 September 2016

REPRESENTATION

The Applicant:

Mr Timms, in person

Counsel for the Respondent:

Mr McDermott

Solicitors for the Respondent:

James McDermott & Associates

Counsel for the Independent Children’s Lawyer:

Mr McLeod

Solicitors for the Independent Children’s Lawyer:

Cathleen Corridon & Associates

ORDERS

The matter be adjourned for mention before Judge Burchardt on 28 September 2016 at 9:30am.
The Independent Children’s Lawyer be at liberty to provide copies of these Reasons for Judgment to Ms E and Dr L.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6049 of 2013

MR TIMMS

Applicant

And

MS TIMMS

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute about three children aged between five and eight. The applicant father seeks that the children change their primary residence from the mother to him and that the mother spend time with the children as determined by the Court. The mother seeks that the children remain living with her and that she have sole parental responsibility (the father seeks shared) and spend no time with the father pending counselling. The Independent Children’s Lawyer seeks that the children commence counselling but also commence to spend time with their father forthwith upon conclusion of this judgment. The Independent Children’s Lawyer supports an order for joint shared parental responsibility.
It should be noted that the case involves the most florid accusations and counter-accusations between the parents as to each other’s personality and conduct. The intensity and scope of these extraordinarily florid assertions, together with the fact that the witnesses called were amongst the most unsatisfactory I have seen and heard in over 40 years of listening to evidence, make the forensic resolution of this matter extremely difficult and demanding.
For the reasons that follow I am going to order the parties and the children to undertake counselling as recommended by one of the two family report writers, Ms E, who gave oral evidence, to enable the children to spend time with the father. I will, however, make it clear to the mother that should she sabotage this counselling process it is at least possible, if not likely, that an order for change in residence will be made.
This is not an outcome sought by any of the parties and will plainly involve interim rather than final orders.

Agreed and/or uncontroversial matters

In a hearing where so much is disputed there are a number of relevant facts that are not in issue. The father was born on (omitted) 1974 in (country omitted). He ultimately moved to (country omitted) where he met the mother in 2005. She was born in (country omitted) on (omitted) 1972. Although the precise timelines are not detailed, as far as I can see, in the parties’ affidavits, from what they have told the family report writers it seems that the mother and father met through the (omitted) Church in (country omitted) in approximately (omitted) 2005. Both had chosen to become (religion omitted) from (religion omitted) and to become (religion omitted). They became engaged on (omitted) 2006 and married the following day. It appears they underwent a form of (religion omitted) or civil marriage also.
The mother had previously been married and has two children, A born (omitted) 1997 and B born (omitted) 1999 (they are known by other Anglicised names also which appear in the materials from time to time but I will use these names in this judgment).
Although there is some dispute as to exactly how it occurred, it is clear that both the father and the mother obtained visas to live in Australia as refugees and the mother arrived in Australia in 2006 and the husband, who had some difficulties in leaving (country omitted) as a result of his (religion omitted), arrived in 2007.
The three children, X born (omitted) 2008, Y born (omitted) 2010 and Z born (omitted) 2011, followed in due course.
On 25 November 2011 the father moved out of the matrimonial home, although he is adamant that final separation did not take place until April 2013. The father, however, on any view of the matter, maintained another address until November 2012 at which time the parties appear to have come some form of agreement in as much as he paid out approximately $7,000 in arrears of mortgage.
Both parties agree that an incident took place on 23 April 2013, although they give very different versions of it. It is clear that the relationship certainly concluded at that point if it had not concluded earlier.
It is a fact that the mother has taken out Intervention Orders against the father from at least 2009 onwards and a number of such orders have been made and, from time to time, in some instances rescinded.
Following the father leaving the matrimonial home in 2013, the father did not spend any time with the children until April 2015. It should be noted that this was the case notwithstanding that the father brought his initiating application to court on 24 July 2013.
The time that commenced at a contact centre in April 2015 was court ordered and for the first six visits all three children attended. On the seventh visit X stopped attending.
Thereafter time moved from the contact centre with changeover at the (omitted) Police Station and time was unsupervised. Six of the eight posited visits went well but after that there was disruption and the children have spent no time with the father since. This is the case notwithstanding that on 1 December 2015 orders were made by the Court for time to resume with changeover at a contact centre.
Ostensibly, and subject to certain important qualifications, each parent appears to adopt the overarching position that it is desirable that the children spend time with the other parent. The qualifications, however, are, for reasons to which I shall come, significant.

The parties’ allegations against one another

This case has been made, as I have already indicated, more difficult by the extraordinarily florid assertions made by each of the parties against the other. The allegations made by the father against the mother include:
·The mother has invented (fabricated according to the father) numerous assertions of assaults by the father against the mother and the children in support of her various Intervention Order applications and more generally.
·The mother has created forged text messages on the father’s telephone while he was asleep, deleting them from the father’s phone but then producing them in court proceedings as annexures to an affidavit.
·The mother has fabricated in some fashion a text message left on X’s telephone.
·The mother dresses X up in adult female clothing including a bra.
·The mother buys pornographic material from Sexyland.
·The mother has invented an allegation that on 18 April 2013 she found the father at about 3 am with X naked on his lap, he having ejaculated.
·The mother has forged documents in relation to a passport application (this assertion is, in fact, correct).
·The mother assaulted the father on 23 April 2013 and, having called the police, herself ripped her blouse and cut herself with a knife to mislead the police as to what had occurred.
·The mother has caused to be created forged anonymous letters which she has subsequently attributed to him.
·The mother is a prostitute (this was based on hearsay information to which I shall come).
·The mother has engaged in Centrelink fraud.
·The mother is alienating the children from him deliberately.
Additionally, the father called Ms W as a witness who asserted, clearly in collusion with the father:
·The mother is a thief.
·The mother is a prostitute who has been injured in the course of rough sex with clients.
·The mother has connived with others to implicate Ms W’s son in drug dealing.
·The mother has made threats to kill the father or have him killed.
The mother’s allegations against the father are not as numerous in tabulation but are every bit as significant and in part outlandish. They include:
·The father was frequently violent both to her and the children.
·The father is a paedophile who she had found to have ejaculated while holding X naked in his arms.
·The father makes the most horrible threats, both by email, text and in the anonymous letters referred to above, to kill not only the mother but X as well; and
·The father has threatened to have sex with the mother’s other two children who are not the natural children of the father; and
·(Through a witness who was not actually called) the father is a transvestite who dresses up in women’s clothing.
This sorry history, some of which I find to be correct but most to be florid exaggeration, makes for considerable forensic difficulty. In circumstances where each party makes very serious allegations of violent assault and the other party asserts that this is wholly fabricated, it is immediately apparent that both witnesses cannot be truthful or accurate in their recollection. I will deal further with the credit of the parties in due course but I set these matters out now because they give an indication of the scope and nature of the proceeding. I cannot recall a case in which such florid (a word I am using repeatedly) accusation and denial has had this element of intensity and degree.

The evidence in the case

Both parties have filed copious affidavit material. At least one supporting witness, a Mr E, was not in fact called and his affidavit was not read. Each party, however, as I understand it, expressly indicated that they rely upon all their affidavit material filed. In these circumstances I have, of course, read all of that affidavit material and re-read it. I pay careful regard to it. In part I have paraphrased much of what the parties had to say in terms of the allegations I paraphrased above and in the uncontroversial material earlier.
Although the affidavit material is, of course, important and I make it plain that I have had regard to it and will return to it in some instances, the fact is that the evidence was heard over some three days and both the two primary witnesses were in the witness box for extended periods of time. In my opinion it will be sufficient for the purposes of this judgment to concentrate generally upon what the parties actually said in the Court.

The opening and evidence of the father

The father was self-represented. In opening he asserted he was not seeking interim orders. He expressed concerns about the family report of Dr L asserting that his answers had been omitted and that he had observed that she had a recording device. He described Dr L as overbearing. He said, “I want full custody and the mother to have access as determined by the Court.”
Once sworn the father adopted his affidavits as true and correct.

The father under cross-examination by counsel for the mother

It was put to the father by counsel that separation occurred on 17 October 2011. The father did not agree. He said he was excluded from the matrimonial home and lived on his own for nine months, although he visited every three or so days. He said that in about June 2012 the mother told him that a friend of the father’s broke in and smashed glasses and she wanted him to help. He went and made repairs. He suggested to the mother they could live together and she said okay.
In connection with this, the mother asked the father to pay mortgage arrears of some $7,000 which he was able to obtain from his superannuation fund. He said the parties lived together until December 2012 when they moved to (omitted). He was living in (omitted) for about nine months before the parties got back together. He then went on to say that following the separation in dwellings in 2011 he still went to see the mother and saw her daily.
The father was cross-examined about the Intervention Orders taken out in 2009, 2011 and 2012 by the mother. The father said that the mother had applied for the first Intervention Order but she had moved out of the family home and returned three days later. There were allegations of endless assault but these never at all happened. It was all pure fantasy. The mother is an inveterate liar. Counsel put to the father the report of the mother’s doctor, Dr M, in February 2010. When taxed with annexure T3 to the wife’s trial affidavit (and it was exhibited to an earlier affidavit as well) the father said this was only hearsay. He denied twisting the mother’s arm and said he had never assaulted her. He said that Dr M had sent him a letter in (language omitted) wishing the parties well. He said, “My family never has a history of assault. It would be a disgraceful act for me. This is a fantasy of her own generation.”
When cross-examined about the events in October 2011 and afterwards, the father said he was a very happy father. He was very proud of the children. He worked hard for the family. He told the mother, “We have to stick together. However much you get mad you will be back.” He said she went to a shelter and violated people. He said, “You are happily married. Your husband loves you. I’m trying to make things work out.” The father said the mother went to see people who told her there had been some violence and she went to the police which led to the Intervention Order applications.
In summary, the father’s position was that he had always sought contests to Intervention Order applications and she had withdrawn on undertakings. In 2012 he also applied for an Intervention Order.
The father was adamant that the parties lived together between December 2012 and April 2013. The first month they were at the home that they owned in (omitted) and then after that they were in (omitted).
The husband tendered exhibits A1 (a notification from the Australian Electoral Commission showing him living at (omitted) as at 1 March 2013) and exhibit A2 (a letter from a real estate agent showing that he was a tenant of the same property from 1 December 2012 onwards) to buttress his case that he had in fact reconciled albeit on what he described as a secret basis with the mother between November 2012 and April 2013. He said he changed his driver’s licence address in March 2013. He asserted that the mother did not want to trigger difficulties with the Department of Health and Human Services (“DHHS”). He denied sending texts annexed to the mother’s trial affidavit and said rhetorically, “Why should I send them if I’m living with her?”
When taken to texts at page 85 of the mother’s trial affidavit (annexure T19) he confirmed that (omitted) is his telephone number. When asked to explain messages ostensibly sent to the wife’s phone on that page he said that the wife sent these to her phone by effectively abstracting his own phone while he was asleep. He said that she then deleted the messages before he came to look at the phone.
In other words, what the father is saying is that the wife deliberately waited till he was asleep, abstracted his phone, sent wholly fictitious messages on that phone to her own mobile phone in order to have a record of same and then deleted the messages so that he was unaware of them, thus leaving it open to her, so to speak, triumphantly to use them in subsequent court proceedings.
The father also denied altogether sending any message to his daughter as contained in annexure T19.
The father alleged that these messages were “dismissed” by the DHHS in July 2013 and had been deleted when he came to look at his phone.
The father was taken to photographs of X at page 59 of the mother’s trial affidavit (annexure T10). These photographs show X wearing what appears to be an adult bra and are asserted to show her heavily made up and with her chest exposed although that is not entirely clear on the photograph. Since both parents appear to agree that that is what the photograph shows I will accept that is the case. The father said he saw these photographs in July 2013 but did not take the photographs. He said X was wearing her sister’s bra. He denied being either the person who took the photographs or who caused the child to be dressed up in adult clothing and/or made up.
When it was put to the father that he had watched pornography in the presence of the children he said he had watched pornography with his wife. They used to watch pornography prior to making love but the children were not there.
The next matter traversed with the father is the incident involving X allegedly on 18 April 2013 at 3.30 am (mother’s trial affidavit paragraph 64). The father said that this was the mother’s allegation when they first came to the Court. The allegation proved that he was living with her. He said, “My children are my blood and flesh.” He denied having sex with the children. He said, “X is the one I really love. She is the first born. I never had X on my lap. This is absolutely incorrect and false. I will fight to the end to have full custody.”
He then went on to say, in my view somewhat unattractively, that the mother was “there”. He had sex available for free. This would seem to be something he felt might make improper conduct with his daughter less likely.
The father said he did not himself say that the mother was a sex worker but a friend of hers had said this. He said he was surprised and totally shocked but had not pursued the allegation.
The father was next cross-examined about the events of 23 April 2013. He agreed that this was the date of separation. He said the mother requested him to leave. She said, “You have stalled my citizen documents.” The father said he had his key and after the mother went to bed he went back at 1 am and went upstairs. The mother said, “How did you get in?” and he replied, “With a spare key you do not know about”. The next morning the father was supposed to meet an official of the Department of Immigration who had called the night before. He went after he had finished work at 1 pm.
The departmental officers showed the father the mother’s application for Y to have an Australian passport which had been purportedly signed by him. It was not his signature. The officials said they knew this. The father said that this was not acceptable conduct but he took responsibility and signed the relevant forms with a witness. The mother had fraudulently forged his signature. He did not wish her to go to jail.
He went home at 3 pm and found locksmiths changing the locks. The mother said, “Get out of here you son of a bitch. I’ll call the police.” The children were present at the time. The mother said, “You caused me trouble with the Australian authorities.” The father replied that he got her out of trouble. The mother continued swearing and hit the father in the face and in the leg and spat on him. The police attended. Before the police attended the father said the mother ripped her blouse wide open, threw food on him and cut herself with a knife. She also threw a drink bottle at him.

The father tendered exhibit A3, a photograph taken of him allegedly contemporaneously on 24 April 2013 showing what would seem to me to be a very minor scratch on his nose. A3 also is constituted by a letter from Dr T dated 24 April 2013 which relevantly asserts:
“The above patient has presented this am complaining that he was assaulted by his wife last night. He had been kicked in the R lower leg which is tender to touch. He also has a small abrasion on the bridge of his nose allegedly from a punch.
He alleges the attack was precipitated by her anger over him having an interview with federal authorities re his allegedly forged signature on a passport application.
Mr Timms was calm and subdued in the consultation.”
It should be noted that the father was not calm and subdued when giving his evidence of these events. His evidence was given with some considerable pressure of speech.
Returning to the narrative of 23 April 2013, the father said that the mother told the children not to tell the authorities that the father lived with them or they might be taken into custody of the DHHS. The children duly told this to the police. The parties attended the Magistrates’ Court the next day and both parties were granted cross-applications for Intervention Orders. After 23 April 2013 the father found a place near (omitted) to live in following a short period at (omitted). He said the mother produced a knife to the police on 23 April 2013. She pulled it out before the police arrived and injured her arm. She had done this before in 2012.
The father confirmed that the child B was at home at the start of events on 23 April 2013 and the other children came home during the incident’s progression but before the police arrived. The mother asked them to go upstairs. The mother had not asked the handyman who was changing the locks to intervene. He was just changing the locks on the main entrance and side door.
When it was put to the father that he had not made allegations of violence by the mother on this occasion in earlier affidavits his answer, in my view, was prevaricating and unconvincing.
The father was further cross-examined about his affidavit sworn 7 October 2013. At paragraph 6 of that affidavit he deposed that the wife fabricates stories to the authorities about him so that she could punish him with Intervention Orders in the event of subsequent dispute. The father also deposed that the mother had worked as a sex worker since about 2007 and continued to do so. When pressed with the inconsistency of his earlier answers, the father said that paragraph 6 was based upon what someone else had told him. He stood, however, by paragraph 7 which is effectively an allegation of prostitution and also includes the very unpleasant assertion “the wife said in front of the girls and myself that she had many men who were desiring her “cunt” and they would pay for all her needs”.
The father also stood by paragraph 8 of his affidavit which reads:
“The wife often presented with injuries from these liaisons and reported these as injuries that I have inflicted on her. I am aware that she might have had a serious STD in April 2013 and I see from the progress notes of Dr M for the wife on 16 February 2010 that pathology testing for syphilis was requested. I have recently had myself tested for any STDs and my results are clear.”
The reference to Dr M’s report, it should be noted, is simply of standard blood testing during pregnancy in which tests of this order are commonplace.
The father went on to say that the children are coached to say things to the family reporter but the photographs he tendered as exhibit A8 showed the real nature of the relationship between him and the children.
The father was next cross-examined about anonymous letters the wife deposed in her trial affidavit had been left in her letterbox. These are at pages 87-89 of the affidavit and are annexure T20. The father said he had nothing to do with these letters. He asserted that a third party had been asked by the mother to create these letters by translating them from (language omitted) to English. The terms of these letters bear some consideration. I will return to them later.

The father under cross-examination by counsel for the Independent Children’s Lawyer

The father confirmed that he lives in a unit in (omitted) and has done since May 2015, although he previously lived in a different unit in the same block. He has been qualified as an (occupation omitted) for just over two years, having started work in January 2015. He also has a small (omitted) business which involves one client and (employment omitted) which varies from month to month. It does not take place at weekends. The father works four to five days a week as an (occupation omitted) and sometimes weekends on a casual basis.
The father’s flat in (omitted) has two bedrooms and a large sitting room. Before that he was in shared property both in (omitted), (omitted) and (omitted). He said that he had been at (omitted) for about 10 months but the parties reconciled in November 2012. He was going home almost every day. This was a prevention arrangement to avoid fights or disputes. Then the parties lived at (omitted) and he finally moved out on 24 April 2013.
The parties had moved on 1 December 2012 to (omitted) but they still owned the (omitted) property. He moved out of (omitted) in April 2013. No one else lives with him in his (omitted) apartment and time with the children should start straightaway. All three children should live with him and spend time with the wife as the Court determined appropriate on weekends and possibly on her birthday and half holidays.

Further cross-examination by counsel for the mother

By leave, and without objection, counsel cross-examined about an affidavit filed by Mr L. The affidavit included allegations that the father had been observed by Mr L to dress up in women’s clothing, a matter which was not pressed and I am grateful to counsel for this in cross-examination. The case has more than enough lurid aspects already. The father denied, however, the allegations of violence asserted by Mr L against the children in Mr L’s affidavit. He said these were a total fabrication. It should be noted that Mr L was not subsequently called and I give this evidence no weight accordingly.

Continued cross-examination by counsel for the Independent Children’s Lawyer

The father described the bedrooms and sleeping arrangements that the father posited for the flat in the event that the children were to live with him. The father confirmed that X and Z would sleep in the large bedroom and Y in the smaller one with him in the living room. The children are at (omitted). He does not know where the mother is living but thinks that she is probably in the former matrimonial home. He confirmed that it is about 25 minutes’ drive from the matrimonial home to (omitted) although there is a school bus. The mother can drive if necessary and the father also has a car.
He would leave the children at the school which is a (religion omitted) school where he knows the Principal. The children would stay there for the time being although fees might be a problem. If he was able to pay they would stay there but this was not likely and he would look to a public school. He had not discussed this with the mother. The last time he spoke to the mother was in October 2015 at changeover. He had no idea what the school fees are. They could be $2,000 per child per year. He was not paying such fees at the moment. The children would go to school somewhere in (omitted) but he had not located one yet.
The father has not visited the (religion omitted) school for a long time, possibly 2012. He just had regular contact with the Principal. He receives reports about X and Y every one to two months. The Principal retired and he called the priest and the Principal but the school were not helpful. He does not want to go to the school because he does not want anything suspicious to occur. An Intervention Order taken out in November 2011 ceased in November 2012. A further Intervention Order was made in April 2013 in which the children were included lasting for one year. The father contacted the school over the phone but did not go there.
The mother had told the father to keep their reconciliation secret between November 2012 and 24 April 2013. He asked the mother why. He kept an alternate address throughout but was at the mother’s house seven nights per week. The mother told him that there were lots of agencies involved, including DHHS and also women’s services. He did not hear anything about Centrelink and did not know if the mother was receiving Centrelink. The mother told him she was working as a personal carer for an elderly person. He thought there might be a school fee concession if the mother was thought to be living separately. Their relationship finished on 24 April 2013 and he had only seen the children since pursuant to court orders.
The incident in April 2013 was a flare up over the passport application. There were also other arguments and every week she told him to leave. She did not want him to do certain sorts of work. The mother filed a passport application for Y and Z but not X. The father knew of the application. She forged his signature at some point in the application. She had made a mistake and then sought to correct it by forging his signature. The father was not consenting to the issue of a passport for X. He thought the mother might remove the children with the help of Mr T, a friend, and did not know where she would go. He wanted to be sure one child would not go and thus signed only for Y and Z.
After April 2013 the father next saw the children at a contact centre. The first visit was on 24 April 2015. He had made no attempts in the meantime to negotiate time with the mother. Correspondence was between solicitors. In 2015 there were eight visits on a fortnightly basis. They went okay except for the last two X did not participate. X wanted no more from August 2015. He only saw her once at Sunshine Court where she gave him a hug. Then time stopped and he came to court.
The matter returned to court on 25 August 2015. After that there were four to five visits. Visits in the first month (four) and in the second month were all okay. In the third month, this was the seventh visit, things came to a halt. In the third month time increased to seven hours and after two visits the other two children simply refused to get out of the car. On 1 November 2015 the mother arrived in her car with Y and Z at about 10 am at (omitted) Police Station. There had been no problems until then. The father was in his car and the mother came over to it. She told him the children did not wish to leave the car and asked him to come and do something. The father replied, “You always unbuckle them and bring them to me. What’s wrong?” The mother said, “Come and see.”
The father had brought food and toys and drinks and the children said they did not want to go to the pool. The father started to video the interchange on his telephone. The father told the children, “We can go to McDonalds or can go to the swimming pool in (omitted).” He told the mother to do something to encourage the children, this conversation being in (language omitted) but with the children half in English and half in (language omitted). The father spoke to the children who were in the third row seat (this being a van) with a sliding door. The mother was in the driver’s seat. The children continued their refusal and saw him filming them. The father asked if they wanted him to unbuckle them but they put their hands on the buckles.
The father’s endeavours to persuade the children lasted for an hour but were unsuccessful. The father said to the mother, “Why not say something?” and she said, “It’s up to them.” The father described this as a civil conversation and said he only videotaped about two minutes. Ultimately he gave up and went back to his car. He gave the children the food and drinks and said, “I will see you next week if you don’t want to come.” The father said the visit before that had been fine and he had spoken to the mother the previous week and had nice communications. The previous visit had not been so good. After the visit on 25 October 2015 the mother called the father and asked why Y had a bruise on his lip and why Z was saying she fell on her buttock. He explained that Z had fallen at the swimming pool.
The father has not seen the children since 1 November 2015. On 6 November 2015 the mother’s solicitor sent him an email saying all contact was to cease because the children have complained that he hurt them. The mother had to take the children to hospital.
The father then gave evidence about the unsuccessful endeavours to achieve changeover at the contact centre and the refusal after four such failures of the centre to continue in January 2016 (see affidavit of Ms G filed on 21 March 2016). He blamed the mother entirely for this failure and sought a change of residency. He said the children were being brainwashed and alienated. Things never occurred and the children were told to say these things. He said the mother would continue to abuse the system but that sooner or later she would be punished. He denied that he would be the cause of this but said “God will look after this”.
The father said the relationship between him and the mother was volatile and this was largely her fault. There was no application for X to have a passport and the mother forged the application for Y. The father tendered exhibit A9, a document from the Department of Foreign Affairs and Trade dated 8 September 2013 which appears to confirm this.
The father was taken to the family reports which he confirmed he had read. He agreed that there should be joint parental responsibility. The father opposed the orders sought by the mother. He said he could pick up the children from where they live and could have them on Saturday morning from 9 am till 5 pm with return before nightfall. The second weekend they could stay overnight. The father discussed the possible spend time regime for which he was contending. He said the problem was the mother alienating the children. He did not wish to take them away.
The father confirmed that he would undertake the travel but that X should be included also in spending time with him. He said X is number one. He said, “I will have to be involved in X’s life and need to see the psychologist she attends.” The father opposed counselling suggested by Dr L. He said X just needs her father back in her life. He said the orders have to be enforced. He could collect the children from school and return them there and this was a better suggestion. He could collect Z also from kinder. He had completed two parenting after separation courses but did not know if the mother had undertaken one.

The evidence of Ms W

Ms W was called by the husband on subpoena. She is a (occupation omitted) at the (employer omitted).
In examination-in-chief a number of the questions put to Ms W suffered from the difficulty that they were clearly leading. This is unsurprising given that the father is self-represented. Ms W confirmed that no one had been with her when she went to the solicitor to give a statement. She said she felt she had to do something about it. She denied that an Intervention Order taken out against her by the mother on 13 June 2013 had influenced her to go to the lawyers. She said, “We were very good friends.” Their church helps those who come to Australia. The mother used to be her (occupation omitted) operating from home. A friendship developed over time.
Ms W said that the mother was always screaming and yelling at the children. She said, “If you do not do what she wants she turns on you.” She said she noted bruises on the mother’s left shoulder and asked how they had been caused. She said the mother told her that this was through rough, tough sex. Ms W said there were a lot of men in the house, some of whom were strangers. The mother wore short dresses and tops when she went shopping. She had offered the mother a job as a cleaner, which the mother had refused. The mother would not be returning home until 2 am and was leaving the children with her own grown up children. She was dressing provocatively. The mother wanted Ms W to be a prostitute also. The mother was a sex worker in 2013 to 2014. Ms W was with her. She was her friend at the time. Nearly every night she was at her house. She had been invited.

Ms W under cross-examination by counsel for the mother

Counsel traversed the Intervention Order application in 2013 and tendered as exhibit R1 an undertaking entered into by Ms W on 18 July 2013. Ms W denied making repeated telephone calls to the mother as asserted in the Intervention Order proceedings. She said the mother stole money from her and stole her laptop. She said the mother hired a man to put drugs in her son’s car. She was the mother’s friend. She said there was no bad blood between the mother and her. The mother was saying she was going to kill the father. There were no close or affectionate relationships between the mother and the children. The mother called the father a “poofter” in front of the children.
In re-examination the father tendered exhibit A10 being a police statement made by the father on 15 July 2013, the gravamen of which relates to an alleged series of threats revealed to Ms W to the effect that the mother would have her family kill the father.

The evidence of the mother

The mother adopted her trial affidavit as true and correct.

The mother under cross-examination by counsel for the Independent Children’s Lawyer

Counsel put to the mother the recommendations in Dr L’s report. The mother confirmed that these had been interpreted to her. Counsel put it to her that Dr L recommended shared parental responsibility and the father seeing the children under supervision. The mother said she agreed with joint parental responsibility on condition that the father was not abusive to the children and did not put bad things about her to them.
Counsel put to the mother that time started in April 2015 with the contact centre and time with all three children went well at the contact centre. The mother said, “Yes, until it was stopped.” The first six visits went well except that on one occasion the father had not attended and on another day the children were sick. This involved all three children. Then on the seventh and eighth visits X did not go. The mother confirmed that nothing happened between the sixth and seventh visits. X was seven and a half years old at the time and the mother said she pushed her to go. The mother confirmed that X will clean her teeth and go to bed when she is told to do so and goes to school. It was put to her as to why she was unable to make X see her father. The mother said, “I ask her. She does not tell me anything.” She said, “Given the fact that it’s impossible to deal with the father we came to court.” The mother says she wants the children to live with her. She has always been responsible for all five of them.
Counsel put it to the mother that it was her job to make sure that the children see the father. The mother said, “That is what I’m doing. I take the children to visits. And if there’s an issue I talk to the counsellor or come to court.” The mother confirmed that X is at school and is very happy and goes on the bus.
Counsel asked why the mother was unable to get X to the contact centre in October 2015. The mother said the first time she took her with the other children, even though this was not required by the order. Once X saw the father, she locked the car door. This surprised the mother. X has a strong personality. The mother went inside and talked to two of the contact centre workers who came back and tried to talk to X. The mother said that when she saw X’s persistence she left her alone and stayed with her in the car. She was trying to find out what was upsetting her. The mother said it was difficult for her to force X. She thought perhaps on the next visit X might like to go inside but, in fact, this did not happen. The mother said she could not force X. X was insisting on her position. X told the mother, “I don’t want to see him because he lies to me.”

The mother confirmed that she came to Australia in August 2006 and the husband in 2007. She said separation took place on 17 November 2011. The mother agreed the father did not see the children from April 2013 until April 2015, and then as a result of court orders. The mother said this was agreed. She wanted the father to see the children. She did not want him not to be present in their lives. She wanted the children to grow up seeing both of their parents. She took X shopping and bought her toys and told her to go but she still did not do so.
Counsel put it to the mother that X did not get into trouble for not going to see her father. The mother said, “I tried to talk to her. I told her the father would be disappointed. I tried to make her feel relaxed.” She took the child to a shop next door. Counsel put it to the mother that she had given the daughter permission and rewarded her for not going but the mother said this was not correct.
Counsel cross-examined the mother about time spent outside a contact centre with changeover at the police station. The mother confirmed that Y and Z had had several visits but then they stopped. The week before the last visit the mother had phoned the father after she collected the children. They had been to the swimming pool. The children had complained and she called the father to ask what had happened. She did not decide that the children should not spend time with the father. She went to the hospital.
On the subsequent visit she spent about an hour and 45 minutes trying to get the children to go to their father. Subsequently she spoke to her lawyer and was told that the children were not going. When it was put to her that she had decided before the last visit that the children were not going the mother said that this was not the truth. The last time they had seen the father Y had an injury to his foot. She told her lawyer who told the father. The father is very temperamental.
When it was put to her that she knew there would be no last visit because her lawyer had already sent the relevant email the mother said this was not correct.
Counsel put it to the mother, as was the fact, that the matter had returned to court and orders were made for changeover at a contact centre and that no time had happened since. The mother asked rhetorically why it did not happen. “Every time I took them I tried. They refused.” When it was put to her that it was not up to the children but up to her, the mother responded, “What do you mean it’s up to me when I take them?”
Counsel traversed with the mother the possibility that he might seek an order that the children have a change of residence because of her failure to get the children to see the father. The mother responded that on the first supervised visit the father said she was influencing the children. When counsel put it to her that she had stopped time because the father said she was alienating the children the mother denied that this was so.
The mother’s incapacity to answer questions in a meaningful way and to address them in the terms they were put caused the Court at this point to give a short adjournment. I suggested to Counsel for the mother that he talk to her, notwithstanding that she was under cross-examination, to try and assist her by explaining how important it was for her to answer the questions in the terms that they were put and not in some elliptical non-responsive fashion.
The break did not, I should say, markedly improve the witness’s performance.
When the matter recommenced counsel asked what orders the mother sought. She said, “Safety for my children. The children should live with me.” She said they should see the father on Saturdays from 9 am until 3.30pm which would be convenient for all. She said every Saturday forever. She also said if there are any other occasions the father wants to see them then it should not be a problem on condition that no one was bruised or injured.
When asked about overnight time the mother said she could not agree. She does not want to separate the three children. She is waiting for the counsellor to give her the green light for X. The counsellor is Ms N who is at the (omitted) Medical Centre (not connected to (omitted) School).
When counsel asked if X could see her father this weekend the mother replied, “Of course. She is my daughter. I want to see her happy.” She went on, however, to say, “You have not read the counsellor’s report and you may need to read it.” She said, “I try but I can’t force her. It is the counsellor’s position she should not see him. I’m seeking that you assist me if the father is not violent. I will try and make them go and see him but he must be kind to them.”
Counsel then cross-examined about the two older children, A (nineteen years) and B (sixteen and a half years). They have also lived in Australia since 2006. Their father is alive. They saw him last week via Viber. The two older children last saw their father ten years ago and the mother has no intentions to return to (country omitted). Their father plays no part in their lives. Counsel asked the mother if the father in this case offers the children anything and whether it would be good for the children to have him in their lives. The mother replied, “Without violence”.
The children finish school at 4 pm and live in (omitted), although school is in (omitted). The journey takes 20 minutes. School starts on Mondays and the bus is at 7 am and returns at 4 pm. School itself starts about 8.30 am. The mother had undertaken a parenting after separation course which completed in January 2015. She took the children with her. She was unable to say how many sessions there were.
When counsel traversed again the possibility of a change of residence the mother said that she did not mind the father seeing the children but it was the Court’s decision. She said, “I will make them see him but I need to be sure he will be kind to them. I promise I am truthful but the children do not want to go.”

The mother under cross-examination by the father

The father cross-examined briefly about the attendance of the children at the (omitted) Hospital on 25 October 2015. The father tendered exhibit A11 being a record of the treatment of Z on that occasion.
In response to a question from the father as to whether the mother still had any concerns about the children in his care the mother said, “No, I don’t.”

The family reports

Although Ms E, one of the report writers, gave evidence it is appropriate at this stage to traverse the material in both her report and that of Dr L, who was not required for cross-examination.

The Report of Ms E, dated 12 September 2014

Ms E recorded the background to the dispute and I note that at paragraph 3 she observed, “There were some separations and reconciliations during the relationship”. She also noted, “The couple finally separated in the latter part of 2012”.
At paragraph 4 Ms E noted the mother’s allegations of violence by the father and the Intervention Orders she had applied for. I also note the father’s assertion that the mother was being paid for sexual favours by an employer.
The report noted a reconciliation in October 2012. I also note that at paragraph 11 Ms E recorded, “He says Ms Timms has told her family of his conversion to (religion omitted). They have threatened to murder him and try to bring him to (country omitted).”
Ms E recorded the mother’s assertion that the father saw the children every Saturday between 11 am and 1 pm from January 2012 onwards but that from 5 November 2012 meetings between the father and the children occurred twice per week for about three hours. At paragraphs 17-19 Ms E recorded:
“Ms Timms says the visits then moved to her house and continued two or three times per week. She says that again, during those visits, she was always with the children. She says Mr Timms sometimes had a meal with them.
Ms Timms says these visits stopped after 18 April 2013.
“I told him to stop coming to the house.”
Ms Timms says this occurred because Mr Timms sexually assaulted X on that day. When asked what happened she said she got up to check the children at 3 am and Mr Timms was sitting with X on his knee on a couch which is in the passageway between the bedrooms. X was falling asleep. She was wearing underpants. Mr Timms was wearing a shirt and trousers. When asked what Mr Timms said, Ms Timms said,
“He said, “This is my house and this is my children.””
Having referred to the reports of Dr A, psychiatrist, which have not been accentuated in this hearing and noting that Dr A made no psychiatric diagnosis of either parent, Ms E referred to a case note by Child Protection dated 11 to 16 July 2013 which included the sentence (paragraph 31 of the report):
“In addition, the father was described by his psychiatrist as a dangerous, manipulating, controlling man and as such it was unlikely the father would offer support to the mother in her care of the children”.
Ms E noted that the source of the information was not stated.
At paragraphs 33-35 Ms E referred to subpoenaed documentation. She noted that Dr M had sent a letter to Ms Timms’ former lawyers dated 2 September 2013 stating, “There is something grievously wrong going on, and child abuse and/or paedophilia have to be investigated immediately.”
Ms E then noted that the notes of (omitted) Centre, Royal Children’s Hospital, dated 12 September 2013, stated that they had contacted (omitted) Sexual Offences and Child Abuse Investigation Teams (“SOCIT”) who had recently interviewed X but that she had made no disclosures. She also noted a case note of Child Protection dated 13 August 2013 which stated, “DHS has not previously been alerted of the incident in April or of the mother’s willingness to allow the father to have contact with the children in order for financial incentives.”
Ms E went on to detail her interviews with the father and the mother. She noted, at paragraph 47, that the father was converting to (religion omitted) and had a mentor, Mr F (who, if I understand it, has attended the entirety of the proceeding before the Court) with him. The report noted the father’s denials that he was never violent with the mother or the children.
In paragraph 51 Ms E recorded, “He says that there was a pornographic movie in the house when he was with Ms Timms but she purchased the movie from (omitted). He says when he was present it was never played in front of the children.”
The father also denied the allegations about Mr L (the allegations of violence and cross-dressing).
Thereafter Ms E detailed her interview with the mother. She noted the mother’s allegations of violence throughout the relationship and also the mother’s assertion that she has seen the father wearing women’s clothing. I note that at paragraph 61 the mother is recorded as having said:
“…he is violent … I am scared about my children. The only way I consider him to be a father is biological, in any other way he’s not the father of my children- I want to bring up the children in an appropriate way.”
I note the mother denied all allegations made against her both by the father and Ms W to whom reference has already been made and by a Ms L who was not called to give evidence.
Having dealt with an interview with Mr R, psychologist, which does not, in my view, take the matter much further, Ms E dealt with her interviews with the children. X said she did not want to see her father and when asked why (paragraph 73) she said, “When I was talking – he was screaming – my mum cut herself.”
X was unable to think of anything good about the father, although she did say it was good to get a card from him and a pink present and she would like it if he gave her a present.
At paragraphs 79-81, in the evaluation section of the report, Ms E noted, correctly in my view, that both parents had had significant adjustments to make following their move from (country omitted). She observed, at paragraph 79:
“Unfortunately, the relationship has been volatile almost since they arrived in Australia. The mother and father have separated and re-united on several occasions, despite the serious claims made by the mother.
There are serious allegations made against the father in this matter, including sexual assault and violence towards the mother and children. There are serious allegations also made against the mother. Both parties provide conflicting information in support or against the allegations. The presentation of the parties was consistent with their presentation to Dr A. Both appeared sincere and generally plausible.
The mother asserts that the father sexually assaulted X. The example given by the mother was when he entered the house in April 2013. During interview for this report the mother said that X was sitting with her father on his lap falling asleep. But notes of the Department of Human Services state that “…the mother had the father leave the house before he was sighted by the children…” Subpoena documents say X was interviewed by SOCIT and made no disclosures.”
Ms E went on to say, at paragraphs 84-87, having noted that the father presented as earnest and sincere during his interview:
“Dr A suggests, it is possible Mr Timms was physically violent towards Ms Timms. It is more probable than not that the children were witness to violent exchanges between the parents. Mr Timms was convincing when discussing the fear of murder by Ms Timms or her supporters.
Ms Timms’s presentation also appeared sincere if less open during the interview. There are questions raised in the notes of Child Protection about Ms Timms’ capacity to protect the children as the relationship with Mr Timms fluctuated. If Mr Timms was physically abusive, Ms Timms’ returning to the relationship, is understandable (although detrimental to the children and herself) given the limited support she felt she had in this country.
If this matter was left to the mother, the children would never speak to or spend any time with the father again. She is likely to find it difficult to come to terms with facilitating time with him.
Because of the severity of the allegations raised in the course of this litigation, it is difficult to see how each parent would advocate positively for the children’s relationship with the other parent. However, given the uncertainty of the allegations made, conflicting supporting evidence and the need for the children to have the opportunity of a relationship with their father, it is recommended that a structure be adopted that can assist with rebuilding the father’s presence in the children’s lives.”
Ms E went on to recommend a resumption of time through a contact centre.

The report of Dr L dated 5 June 2016

Dr L’s report commences with a history of the parties, first acquaintance, marriage and the subsequent visits and journey to Australia. Having traversed, at least in outline, some of the difficulties the parties had, including a number of separations, Dr P noted the mother’s report of final separation, at paragraph 10 Ms Timms stated:
“…this final separation occurred after she found the father was watching pornographic movies at home, reporting X was observed naked on the father’s knee, and the father’s pants were around his ankles. She feared X had been sexually abused as she noted the father had ejaculated. Later finding the father allegedly holding X by her neck, she called the police. Police attended the home but were unable to locate the father. They telephoned him at work requesting he present to the police station in the morning. Ms Timms reported the father was subsequently escorted by police to the home to collect his belongings.”
Having noted the current arrangements for the children and the parties’ proposals, Dr P dealt with her interviews with the parties. Dr P noted, at paragraph 18, some of the difficulties that had taken place at changeovers at the child contact centre and the possibility that this might arise from, in part, interpretational difficulties.
I note that at paragraph 19 Dr L reported:
“Ms Timms stated previous changeover had occurred at (omitted) Police Station and the children had spent increasing periods of time between two and four hours. She reported she had wanted the children to see the father and told the children that if they ever felt something strange they could contact her and she would stay with them a bit and give them support. However she reported when she found Y was nervous she could not cope with this and had talked to her former lawyer about Y being so upset and nervous that had led her to want supervised contact. She reported the CCC had seen the children at several time periods, initially commencing with supervised time, then in supervising changeovers that ceased when the children had refused to go with the father on each occasion. She reported initially the three children had gone to the CCC but X had refused to attend the fourth or any future time. Ms Timms reported the father did not telephone the children, write, or send cards and photos and the children never discussed him.”
At paragraph 27 the report continued:
“Ms Timms reported when the matter was returned to Court she wanted the children to be healthy and safe. Specifically, for the children to see the father as she was concerned if this did not occur it may affect them in the future but stressed they needed to be safe in doing this. However Ms Timms stressed she wanted such contact of the father with the children needs to be supervised with what he did before and she wanted people to be aware of this. Ms Timms was aware that CCC had placed the issue of their role with the Timms family on hold, pending the outcome of the next Court hearing. She states she was worried he (the father) might sexually abuse X again and that was the primary reason she did not want the children alone with the father unless it was supervised. Ms Timms stated when she alleged X may have been touched by the father; child protection to her knowledge had not been involved and police had not adequately interviewed X who had made no disclosure to them. Instead, she reported X had been referred to a counsellor by police, and as her mother she had not been provided with an interpreter to fully understand what was occurring. Ms Timms reported she had found X sitting naked on the father’s lap at night when she got out of bed, and the father at that time was not suppose (sic) to be in the house. He was naked from the waist down and had ejaculated whilst watching a pornography film. She reported she had asked the father why X was sitting on his knee naked and he had told her he wanted to give X a shower. She reported after I kicked him out, I wasn’t sure what to do and I took her to the doctor who had referred X to a counsellor but no one examined her there. Ms Timms agreed at the time she had not called police I wanted to know something had happened but at the same time, I did not want to ruin her reputation. Ms Timms was asked if child protection had contacted her to discuss this, but she had been of the understanding they had not been notified. Ms Timms defensively stated it’s not my fault, I called police and kicked him out of the house but the police did nothing.”
The report then went on to traverse the interview with the father. The report noted the amount of time that the father had spent with the children and its cessation. Unsurprisingly, what he told Dr L was, essentially, consistent with the sort of denials he made to the Court. At paragraph 32 the report recorded:
“Mr Timms reported supervised time at the CCC had arisen following the mother alleging he had hurt the children and they were no longer happy to see him. They had attended Court and a report from the CCC of supervised contact described me as a normal father. He strenuously denied I didn’t do those things she said about me. There was nothing to prove what she said. Mr Timms reported the ICL subsequently informed him he might need to return to the CCC to facilitate changeover. But that never occurred because she goes there with the children and told them to say don’t go with dad he will hurt you, so the children told staff we don’t want to see him he’ll hurt us.”

I note the father was clear that he wished to see his children as a result of Court proceedings and was prepared to leave the matters to the Court. He accused the mother of being vindictive and I note that at paragraph 40 of the reports states:
“Having espoused how he intends to work issues out with the mother, Mr Timms angrily stated his conscious (sic) was wiped clean as they were his children and that it had been six months since he had seen them, we will wait for the Judge to make the order. I want to see my children. Mr Timms impressed as appearing frustrated and angrily got up and left the writer’s rooms at the conclusion of the interview.”
Dr L went on to record her interviews with the children. I note that at paragraph 41 X responded it had been long time since she has seen her father. “…he upset me, he’s mean and very rude.”
When talking about her father X became highly anxious and her speech was rapid and a little incoherent (paragraph 42).
Paragraph 43 then asserted:
“…her speech began as fluid but then deteriorated where questions needed to be repeated a number of times as X had become confused and at times incoherent. She gave examples of when she and her siblings had spent time with the father, where they had gone and what they had done. This too became incoherent and disjointed in content, unlike her fluid and clear speech discussing her school and friends. “I told Ms N, I didn’t want to go with him, I didn’t want his kisses and his touching me” she reported with tears noted swelling up in her eyes. X added, “and my sister doesn’t want him kissing her either, and I don’t want to play with daddy’s toys. There’s a whole room of them.” The front door could be heard to open and the writer went to check. It was the father who had arrived early. X was observed staring at the door and started to whisper “he can hear me talk. I don’t want him to see me I’m scared.”
X, in fact, refused to see her father.
Y and Z were very reluctant to see their father, and I note, at paragraphs 48-49:
“Mr Timms continued to beckon Z to come to him and after several minutes when she made no move, he stood up unexpectedly and walked over to Z and picked her up and returned to the couch. Z impressed as looking uncomfortable and every minute or so Mr Timms, who continued to hold Z tightly on his knee, repeatedly kissed her on the face every few minutes. On each of these occasions, she continued to sit very still, made no conversation with her father during the observation, and would stare vacantly at the writer when the repeated kissing continued. Y appeared to be unable to get up as he had been wedged between his father and the wall and Mr Timms continued to hold his phone to Y’s face telling him who was in each photo, he interspersed with continuing to rapidly kiss Z on the face.”
The writer felt the need to discontinue the observation after 20 minutes as neither child had been allowed to get up and explore the room, being held uncomfortably close on the couch by the father. Z made no conversation during this time, despite being observed to talk rapidly about the contents of the room with her mother, and Y asked a few questions about the photos his father continued to rapidly show him. Z impressed as being relieved to be told it was time to leave and got straight off the father’s knee, rapidly walking back to her mother seated in the next room. Y bid his father goodbye and was observed to also quickly leave the room.”
The report then deals with the report from Ms G, (omitted) Children's Contact Centre, which detailed the ineffectual attempts by that contact centre to facilitate changeover between the children and the father.
The report then proceeded to evaluation. Having noted the differing positions of the parties Dr L stated at paragraphs 54-57:
“There have been a number of allegations and counter-allegations and differences in opinion about various issues and what is best for X, Y and Z in affidavits, a previous Family Reports and throughout the current report. Whilst it is difficult to determine the truthfulness of some of the allegations, and ultimately this will be left up to the Court, it is imperative that this report focuses on the young person’s emotional, social and development needs, and that the parties’ conflict and their own individual needs and wants are seen as secondary.
Interview and observation of Ms Timms suggested that she felt frustrated that interpreters, other than the one provided during the current interview, had not been provided and she may not have been fully understood. She remained concerned with what she perceived were safety concerns for the children if their time with the father was not supervised. As such, she believed she had offered both the father and the CCC her time but this had been rebuffed.
The interview and observation of Mr Timms suggested he remained highly critical of the mother and espoused a strong belief that in order to resolve the current impasse, where he is not having any time spent or contact with any of the three children; orders needed to be made by one of two people. Specifically, either the Court who ordered the children to participate in time spent with him, or, conversely the mother be ordered to enforce the children to spend time with him. In both situations he asserted the Court needed to “make an order and it would occur”. However when asked how the matter would be resolved if the children should continue to refuse contact with him, despite his suggestions it be ordered, he was unable to answer.
It was clear neither parent could suggest what they felt was a workable solution and both were highly frustrated by the events that were reported to have occurred. Mr Timms was unable to suggest changes that could be made and impressed as being angry at being asked to consider this proposition. Ms Timms on the other hand similarly lacked suggestions and impressed as being fearful for the children’s future safety. Instead, both parents fell back on the familiar, that of criticising each other rather than being open to potential changes or strategies that might be made.”
At paragraphs 58-60 the report went on:
“As a consequence of both parents’ interviews and parental observations with the two younger children, there was little new information gleaned from either parent. Similarly, X continued to refuse all contact with the father and was not prepared to participate in an observation period with him, despite the writer assuring her she would remain present at all times. Similarly, both Y and Z impressed as potentially feeling trapped in the observation room with the father where they appeared unable to move from the couch by the way they had been held and positioned by the father. Z made it clear she wanted to leave the room to return to her mother’s care within minutes of entering whilst cowering behind the writer’s chair and Y impressed as being very quiet as he had been wedged between the wall and the father.
Neither parent demonstrated an ability to positively promote the role of the other parent in the children’s lives and their desire to have a relationship with them. It is their inability to engage in this most basic form of clear and open communication that raised the question as to how this will impact on the children in their long term relationship of their parents. Such conflict and limited communication appear highly diagnostic of a poor prognosis for X, Y and Z being able to attain a positive outcome during their developmental years if the parents are unprepared to address these issues at this important time in their lives where they embark upon critical life stages of their primary and secondary schooling. As such, the children may be at risk of being consumed in this communication impasse and may possibly be prevented from positively accommodating the ongoing changes in both their and their parent’s lives.
It may perhaps be important to provide both parents with a further and possibly final opportunity to attend CCC for time spent under the supervision of staff. In so doing, for both parents to have read and considered the contents of both Family Reports, for the mother to be provided with an interpreter at the CCC where the process and respective roles of both parents can be explained clearly to her, that was reported by staff not to have been provided in the past. Finally X remains adamant at this time she will not have contact with the father due to past experiences of not feeling safe. While counselling was reported to have been placed on hold while a new counsellor is located, X appeared to have formed a relationship with her former counsellor who made a helpful bridge while this process continues to be explored. As such it is important that the ICL assume the role of communicating with both X and her counsellor, not the parents, to ensure X feels confident with the therapeutic process of confidentiality to ensure trust.”
Dr L went on to recommend equal shared parental responsibility, the children live with the mother and spend time with the father, supervised at the children’s contact centre for Y and Z, with X to have a new counsellor and to undertake counselling.

The affidavit of Ms G, sworn 11 March 2016

Ms G has already been referred to above. Her notes are annexed to her affidavit. They record, in some detail, the endeavours to affect changeover at Community (omitted). It is not necessary to paraphrase this in detail, save to note that the mother’s contact, as recorded by Ms G, was certainly not such as to overly encourage the children to go and see their father, rather the contrary. Further, the assertions of alleged assault made by the children to the child contact centre workers are highly generalised and I note, were made when they had “blank expressions on their faces”.
I note further that on the fourth changeover attempt on 16 January 2016, when asked if he wanted to see his father:
“Y said no, I am not allowed. Writer asked why he is not allowed. Y said if I go with dad I will get into big trouble Writer asked Y what big trouble meant. Y said Mum won’t take us to the shops if we go with dad. Writer asked Y what they were going to the shops for. Y said mum is buying me a Joker and Batman car. Writer asked Y what mum was going to buy Z. Y said mum is going to buy Z a Ninja turtle. Y then said I don’t like going with dad, he yelled at me. Writer told Y and Z they could go back to LW now. Y and Z ran out of the room to where LW was. LW appeared surprised and asked Y if he was going to see STW. Y shook his head and said, no. LW asked him why. Y said, “You said…”, and then he said I don’t want to see STW because he hit me. LW looked at Y and reached out and put her arm around his head and pulled him close to her and smiled. LW asked Z if she wanted to see STW. Z said, no. Writer cancelled changeover.”

The evidence of Ms E

Ms E was called and gave evidence by telephone with the express agreement of all parties. She was first cross-examined by the father.
In response to questions from the father Ms E confirmed her impression at the time of her first report that if the matter was left to the mother the children would never see the father again. She said that if there were positive reports, sometimes the mother becomes more positive and she had hoped for a shift in the mother’s position if the contact centre report had been more positive.
Ms E was next cross-examined by counsel for the mother. Counsel put the history of the three children initially going to the first six sessions and then X refusing and then two more sessions with the younger ones went well. Then there was unsupervised time at changeovers at police stations with about six sessions for the other two and then their refusal.
Ms E confirmed that she had not read Dr L’s report. She said some progress had been made. She said she would consider child inclusive counselling and noted that the two younger children were likely to be influenced by the older child.
Ms E was finally cross-examined by counsel for the Independent Children’s Lawyer. Counsel took Ms E through the six visits with all three children and possible seventh visit on 1 November which was supposed to be just before unsupervised time at which time X stopped. Counsel noted that the other two had subsequently stopped and the matter came back to Court but no time had happened since.
Ms E said that the mother, father and children needed family inclusive counselling with a family therapist. The mother first, then the father, then the mother to just gradually fall out of the process.
Counsel asked what would happen if this did not work and the mother sabotaged the process. Ms E said the position would have to be reconsidered. She was concerned that the mother was unable to get the children to see the father. It was not necessary for the mother to be there at pickup. Counselling would take place and the children would not be traumatised to see their father. Ms E confirmed that the father’s accommodation, as counsel described it to her, would be appropriate to have the children with him. Ms E said that the mother ought to be able to get X to see the father and that the mother was failing to give the children permission to see their father. Ms E confirmed that changeover from school or kinder would be preferable. Ms E confirmed that the mother was the primary carer and it was better that the children live with her. She recommended, in the ultimate, alternate weekends and half school holidays and a night in the off week with the father.

The submissions of the parties – the Independent Children’s Lawyer

Counsel noted the ages and occupations of the parties and their origins. He traversed the dates of their meeting, the details of the mother’s elder children and noted that the elder children had had little contact with their father since 2006 when the mother and the children came to Australia. Following the arrival of the father in 2007 the parties lived together in what it was submitted had clearly been a tumultuous relationship.
The mother asserted that separation took place on 17 October 2011, and it was clear that the father moved out and they maintained separate addresses for 12 months. The father says there was a secret reconciliation, which the mother denies, between November 2012 and 23 April 2013. The father had a separate address throughout.
Counsel submitted that nothing turns on which version of the date of separation was correct as this was irrelevant. The father was removed from the home in April 2013, and on any view, the relationship was conclusively finished from then on. He took until 2014 to make application to the Court (this is incorrect – his initiating application was filed 24 July 2013). No time was spent until 2015.
Counsel noted that both parties make numerous and outrageous allegations against one another, but the children did start to see the father in April 2015. Having noted the children’s school and kindergarten and where the parties live, counsel noted that Ms E had said that the father’s accommodation was sufficient for overnight time. Counsel pointed to the limited knowledge of the father about the children’s present school.
Counsel pointed to the fact that the Court ordered time between the family and the children in April 2015. (In fact, the orders were made in March 2015 but time started in April 2015.) Counsel submitted that any risks arising from antecedent contact were clearly felt to be outweighed by the benefit of the children seeing the father. The orders were indeed made by consent.
All three children went to the first six visits but on the seventh visit X stopped. Counsel submitted this was important. He submitted that the mother said in Court that she had stopped time because the husband was alleging she was alienating the children. The mother had sought to withdraw the admission made in her evidence but it was, as counsel submitted, the real reason time stopped. X was not punished for refusing to see her father but rather was taken shopping. Counsel submitted this gave tacit permission to the child from the mother not to attend. The mother was effectively asserting she was unable to change the mind of a seven year old.
Time moved from the contact centre and changeover was to take place at (omitted) Police Station. Six of the eight visits went well but after the sixth visit there was a disruption. The mother contacted the father and obtained medical and legal assistance with allegations of mild injuries. By the Friday night the solicitor’s letter had been sent but on Sunday, 1 November 2015, the mother attended changeover. Somewhere between 45 minutes and an hour and a half was spent in discussion in the presence of the children. The father had recorded it which made the children more concerned again. The mother continued tacit support for the children not to see their father. The matter returned to Court on 1 December 2015 and orders were made with changeovers to go back to the contact centre. Nothing happened.
Counsel submitted this was the third disruption. Counsel submitted this put the mother at risk. She is in a perilous position but does not understand. The mother had self-exculpated at every opportunity in the witness box. Despite being given an opportunity during a short adjournment to understand the necessity of answering questions directly, she still did not do so. This was concerning.
Counsel then referred to the statutory pathway in Goode & Goode [2006] FamCA 1346. He submitted that shared parental responsibility was appropriate. Lurid allegations had not been made out. It was clear the parties did not like one another, and the children were pawns in the battle. Counsel submitted that the mother would fail to promote a relationship with the father and noted that Ms E says the mother is resistant. Shared parental responsibility is necessary and the presumption is not rebutted.
Counsel submitted that equal time is impractical and the father had not built his case in any meaningful way anyway. It was submitted the children have to see the father and it was necessary for there to be a ‘Sword of Damocles’ over the mother. There was an obligation to support the relationship with the father and the mother needed to understand she was being given one last chance. Counsel noted that both final and interim orders would have some difficulties and left that matter to the Court.
So far as X was concerned, Counsel submitted that the mother says X is a special case and there needs to be therapeutic counselling. Counsel agreed with this but not that this should prevent the commencement of time with the father which should start forthwith upon the decision of the Court.
Counsel noted that orders were made by consent for a time spent regime despite all the prior allegations made. When asked by the Court whether the father’s interest in X was slightly obsessive, counsel responded that this was simply a cultural matter relating to the first-born child. He submitted both parents should undertake further counselling and that the Court should, if practicable, make determinative findings of fact about the matter between the parties.

The submissions of Counsel for the mother

Counsel commenced by setting out a long list of areas, important areas indeed, in which the father had not cross-examined. I do not propose to set these out although they are of course recorded on transcript. They fail to give proper credit, however, in my view to the fact that Mr Timms was self-represented.
Counsel submitted that where there was a conflict in evidence between the parties, the wife’s evidence should be preferred. He noted that Dr L had not been challenged and pointed to the paragraphs in her report recommending counselling and that Ms E’s report had recommended supervised time.
Counsel submitted that it was preferable that the children continue to live with the mother and commence with family therapy. He submitted, however, the children should not be traumatised by time with their father. He submitted that both family consultants say that neither parent can promote a relationship with the other, and that moving the children to the father would not work. Counsel noted that X is in grade 2, and Y in Prep and that the children had not spent overnight time with the father alone. He has only recently obtained appropriate accommodation and presented as ambivalent about their school.

The assertion of an affair with Ms F (clearly, Ms W) is designed to be hurtful and is consistent with the rage expressed by Ms W in the witness box. The assertion that he would make the children (religion omitted) is consistent with his conversion.
The reference to the phrase “you will never have any proof that I slept (with X)” is worrying and the assertion that he would violate the two elder daughters equally so, it should be noted that as I find that while these were written by the father, they were written during a period of rage. At that stage, he had been excluded from the family home and was not seeing his children.
The father is a man of extremely limited insight, despite his intelligence and extremely limited self-control. He wrote these disgusting letters and they are a significant consideration albeit that I do not accept that they indicate that he had misconducted himself with X. What the father was saying in substance was that the mother would not be able to prove her untruthful assertions about X.

The wife as a sex worker

I mention this matter because it is easy to deal with but it is such a significant assertion, it cannot be simply set to one side. The father’s materials as indicated above (and I think I may have missed some of the assertions made) had been replete with lurid inferences that the mother was working as a sex worker. The high point of his case in this regard was the evidence of Ms W.
Ms W’s evidence was, I regret to say, not only utterly unsatisfactorily given and unbelievable but inherently improbable and absurd. The gravamen of her position was that the mother was having sex with men she saw around the family home not only in the children’s presence (they were sent upstairs allegedly) but in hers as well. In circumstances where Ms W was known to be working at that time with the father, it is immediately apparent that this is a preposterous assertion. The evidence garnered to support the assertion, I have already dealt with. It is not necessary to repeat it.

The passport issue

The gravamen of this issue as it eventually emerged was that the father, as earlier indicated, was prepared to allow the mother to obtain passports for Y and Z but not for X. In some fashion perhaps not even now entirely clear during the application process, the mother made some sort of mistake and had to recomplete a form. The father said that the mother forged his signature on the relevant form. The matter was like many matters not the subject of cross‑examination of the wife by the husband. Nonetheless, it is clear from exhibit A9 that the DFAT investigation concluded “Fraud substantiated”. It was established that there was an “incorrectly witnessed offence”. A warning letter was sent to mother outlining her responsibilities.
Exhibit A9 is dated 8 September 2013 but from it, it is apparent that the father actually went to the Minister for Border Protection and Trade on 23 April 2013 and denied witnessing the document. I think his explanation that he took responsibility for the matter, in the sense that he exculpated the mother, is entirely consistent with the DFAT record. It is clear that the mother did forge the signature of the father on the passport application form.
It is also far more probable than otherwise that it was this that led to the stormy interview between the parties on 23 April 2013. It seems that the Department telephoned the mother who was very put out at being caught.

Family violence during the relationship

Counsel for the Independent Children’s Lawyer submitted that the relationship was, most particularly towards its end, tumultuous and it is clear that that is so. This would be the case on either party’s version of the events. The father has vividly denied any assaults on the wife, going so far as to say that this would be a disgraceful act for him because his family has no history of this sort.
The fact is that the father has been the subject of numerous Intervention Order applications which seem to me more often than not to have been made out. His contemptuous dismissals of these as mere inventions by the mother are part of his construct of her demonic approach to such matters. I have already dismissed his assertions at least in part. Having heard and seen him give his evidence over a protracted period of time and, indeed, observed him in court more generally, I have no doubt that the father has at least on occasions been violent to the mother. On the tumultuous occasion of 23 April 2013, I have no doubt that it was he who ripped the mother’s blouse. Whether the mother was cut in some sort of struggle when she herself had the knife in the hand, I am unable to say. Both versions of the events are equally florid.
Having made this finding, however, and making it clear that I am not in a position to say exactly how much violence there may have been but that there was some, I have no doubt that the mother greatly exaggerates the matter in any event. Having also seen her give her evidence over a protracted period of time and observed her in court, I find that she would be just as ready to give as good as she gets in any argument. Both these parties have screamed and yelled at each other quite clearly and there has, therefore, clearly been family violence in that sense, in the sense envisaged by the expanded definition in s.4AB of the Family Law Act 1975 (“the Act”).

Further findings

Having dealt with these particular discrete issues, it is appropriate now to come to the narrative more broadly. These parties plainly had a separation of a sort between 2011 and November 2012. Throughout the entirety of this time, the father’s address was not that of the matrimonial home. Although he undoubtedly returned from time to time, he simply was not living there full-time. There had, indeed, as the parties seem to agree, been earlier episodes of separation. It was part of the tumultuous way they conducted their lives that these separations and reconciliations should occur.
Between November 2012 and April 2013, it does seem that to a greater extent at least, the father returned to live at the matrimonial home. He had a key, although it appears that he appears to have had one extra key of which the wife was ignorant.
In April 2013, the mother forged the passport application and this was clearly the trigger for the final separation. It followed a violent altercation between the parents in the presence of the children.
Thereafter, the father did not get to see his children until April 2015. This brings us to the affidavit of Ms G filed 25 August 2015. This reported upon the spend time regime that took place between 1 April 2015 and 12 August 2015 and provides the most objective insight as to what actually occurred. It is noteworthy that in the early stages all three children were happy to see their father and interact with him. I note that the father was not in fact particularly good at supervising the children and tended to concentrate on one to the exclusion of others.
Nonetheless, the picture that emerges at least in the early visits is one of an affectionate relationship between the father and the children.
I note, however, that by even the second visit on 6 May 2015, X approached her father and said, “mum told me that when I was little, you punched me in the eye.” Later on, the father asked X how her elder half-siblings were and she said they were good and that they were scared of the father.
By the third visit on 3 June 2015, things were getting worse. Stupidly and inappropriately, the father asked Y and X how their elder siblings were and then asked how the mother was. Towards the end of the visit, X started asking the father why he had hit the mother in the past and that the mother had shown her a mark on her back which she got from when the father hit her. The father denied hitting the mother or any of them and the supervisor had to step in to stop the conversation. The father insisted on saying again how much he loved each of his children, their older sisters and their mum. Although the writer was able to stop the father talking, Y and X continued talking about the mother being hit by the father.
Noteworthily, as soon as the children returned to the mother they started telling her about how the father had told them he had not hit the mother and did not hit any of them. Y told the mother that the father could come back and live with them.
On the further visit on 17 June 2015, both Y and X told the father, in effect, that the mother had told them that the father had hit her.
On the next visit (number 5) on 15 July 2015, X walked to the supervisor and said, “now I need to tell to you about my dad.” She proceeded to tell Ms G a story about when she lived in a big house and dad used to punch them and have a knife and that he used to hit the mother and the mother had to call the police. The supervisor noted that when it was time to leave, X attempted to do so without receiving a hug and kiss from her father.
On the sixth visit, 30 July 2015, X did not wish to see her father. When X and Z saw the father, Z in particular was more reserved. Both children were less talkative than when X had been with them. Neither child demanded the father’s attention like in other visits.
On the final visit, 12 August 2015, X refused to get out of the car and come into the centre. Z and Y did but Z was very quiet and did not smile. It appears that Z was not well on that occasion.
In her concluding comments, Ms G noted:
“All three children attended the first five visits. The first four visits were very similar. All three children appeared to compete for STWs attention, saying ‘dad, dad, dad’ a lot and wanting him to play with each of them. At times STW appeared to struggle to supervise all three children as he would follow the children’s requests to look at something or do something each time they asked. During these first four visits there were times when X and Y would say things about the past but STW and writer would be able to divert the attention away from these conversations. In the fifth visit X pulled supervisor Ms K aside to talk to her about the past. X also appeared uncomfortable in this visit asking to speak to mum or leave and telling STW, ‘I don’t like you.’ In the sixth visit X refused to transition through to STW saying she did not want to see him. During this visit, Y and Z were very quiet for the first half an hour, then appeared to warm up. Neither X nor Z yelled ‘dad, dad, dad’ in this visit. X again refused to attend the seventh visit, refusing to get out of the car and go into the centre. Z did not stay for the whole visit as she appeared unwell and Y asked to leave visit at 5.30 pm.”
After the supervised visits concluded two further visits of course occurred but then everything stopped.
The report from Ms G is extremely telling. It speaks to the father’s incomplete parenting skills (something not entirely surprising, given he had not seen the children for two years when the visits first started and was not the primary carer when the parties lived together in any event).
What emerges for me very clearly, both from Ms G’s report and from the evidence given by the parties, is that the mother was, probably consciously (but in any event nothing turns on it), turning the children and X in particular against the father by a campaign of constant accusation when the children were in her care. This ultimately caused X first to cease seeing her father, and she clearly has a lot of influence over her younger siblings who ultimately arrived at the same position.
At this point, it is appropriate to return to the statutory pathway as illuminated by paragraph 65 of the decision of the Full Court of the Family Court in Goode & Goode. Despite some subsequent statutory amendment, in my respectful view, it is still an appropriate starting point.
The statutory pathway as set out in Goode v Goode at [65] is as follows:
“Summary
[65]    In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends and holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.     The child’s best interests remain the overriding consideration.”

Equal shared parental responsibility

The Independent Children’s Lawyer and the father support the making of an order for joint parental responsibility and, of course, the mother opposes. The Independent Children’s Lawyer points out that Dr L has recommended equal shared parental responsibility notwithstanding allegations of violence.
As Ms E observed in her earlier report at paragraph 86:
“If this matter was left to the mother, the children would never speak to or spend any time with the father again. She is likely to find it difficult to come to terms with facilitating time with him.”
Dr L also noted at paragraph 59 of her report neither parent demonstrated an ability to positively promote the role of the other parent in the children’s lives and their desire to have a relationship with them.
The difficulties of communication the parents have are obviously a significant inhibitor to the effective exercise of joint parental responsibility. The presumption may be rebutted where there is family violence as there clearly has been here, although as I hope I have made clear, its extent is nowhere near the amount that either party seeks to represent.
The reality is that if I make an order for sole parental responsibility, the father will be completely excised from all decision-making in relation to the children. If in the ultimate he is to have a relationship with the children and Dr L’s report is clearly to the effect that this is desirable, then as a matter of practical politics, equal shared parental responsibility will have to be ordered. This brings us to the interrelated issue of how much, if any, time the children should spend with their father. It is required to be assessed against the matters set out in s. 60CC of the Act.

The primary considerations: Section 60CC(2)

At least in theory, everybody seems to agree that it is in the best interests of the three children to have a meaningful relationship with both of their parents. In the case of the mother, however, such assertions have to be met with considerable reservation. As I find, her true position is that she does not want the children to spend any time at all with their father. She clearly spends at least a sufficient time inculcating in X in particular but also the other children to an extent her allegations of violence upon her and them by the father. This is not the act of somebody seeking sincerely to promote a relationship between the father and the children.
There is, of course, also the need to protect the children from family violence, abuse and neglect and that is a matter to which greater weight must be given (s. 60CC(2A)). Nonetheless, the fact is that unless a relationship between the father and the children can be fomented, as Dr L says at paragraph 59:
“It is their inability to engage in this most basic form of clear and open communication that raises the question as to how this will impact on the children in their long term relationship with both of their parents. Such conflict and limited communication appear highly diagnostic of a poor prognosis for X, Y and Z being able to attain a positive outcome during their developmental years if the parents are unprepared to address these issues at this important time in their lives where they embark upon critical life stages of their primary and secondary schooling. As such, the children may be at risk of being consumed in this communication impasse and may possibly be prevented from positively accommodating the ongoing changes in both their and the parents’ lives.”
I share the concerns expressed by Dr L as to the long‑term future for these children if, as in substance the mother truly seeks, the father is excised from their lives.

The additional considerations - Section 60CC(3)(a)

The children have, of course, expressed views about their father. In the case of X in particular, they are very negative views but there are two things to say about this. First, the children are still very young. Their lack of maturity needs to be taken into account. Second, it is clear from the materials as a whole and the findings of fact that I have made that the children’s views spring first and foremost from their mother. The reality is that the first few visits with the father went well. One can read in Ms G’s report a gradual and insidious diminution of the children’s pleasure in their father’s company which is quite clearly the response to what their mother has been telling them. Most noteworthily of all, of course, by the time time was coming towards a complete close, Y was expressing to third parties the clear understanding that he would be in trouble if he went to see his father. This, of course, comes from his perceptions of what his mother’s position is and I have no doubt that Y’s perceptions are correct.

Section 60CC(3)(b)

The children have an excellent relationship with their mother, albeit that it is in danger of becoming enmeshed. She has always been their primary carer and there is no suggestion that she is not competent in that respect. Vague rumblings of criticism in the father’s case are simply not sustained.
The nature of the relationship with the father is more complex. The children appear to have a residual affection for him. It is very noteworthy that such young children, who had not seen their father for two years, initially engaged so positively with him. It is not possible to avoid concluding that they love him and would like to see him, but are scared to do so because of the mother’s position communicated to them.

Section 60CC(3)(c)

The mother has plainly been the primary carer of these children and it is not necessary to say more than that. The extent to which the father has taken the opportunity to participate in decisions and spend time and communicate with the children is more difficult. Contrary to the position advanced by the Independent Children’s Lawyer, the father did not significantly delay before coming to court. Nonetheless, one cannot help but note that even when things were going well with Ms G, the father was not a particularly adept parent. He had failed to an extent to spread his attention equally between the children. By the time of the most recent contact between the father and the children, he was effectively unable to control his emotions and simply went on kissing Z and effectively imprisoning Y. While the pent-up nature of his emotions in seeing them for the first time for some considerable time is understandable, his lack of restraint as the adult in the situation is, in my view, significant.

Section 60CC(3)(ca)

There is nothing to suggest that the mother has failed to maintain the children. The father does not pay child support but I note that it appears that the father has allowed the mother to continue in sole occupancy of the former matrimonial home which is a matter to her benefit.

Section 60CC(3)(d)

The father seeks an immediate change of residence or alternatively, at the very least, an immediate resumption of time with him. It is instantly apparent that the children would be wholly unable to sustain a change of residence and indeed neither Dr L, Ms E or the Independent Children’s Lawyer have recommended it. It will not occur at least for the present.
In my view and this is perhaps the nub of the entire outcome of this case, the relationship between the father and the children as most recently detailed by Dr L following her observation of the children with the father on 23 June 2016 is very telling. I note that Dr L recommended at paragraph 60 “it may perhaps be important to provide both parents with a further and possibly final opportunity to attend the CCC for time spent under the supervision of staff”. She also thought that X should be given access to a new counsellor or return to her former counsellor before time commences.
It is obvious in my opinion that the children are simply not ready immediately to see their father.

Section 60CC(3)(e)

The practical difficulty of ordering the children to spend time with their father at the moment is their likely response to it in the face of past history. There does not appear to be any other difficulty, whether it were terms of practical matters or expense save of course that in the event that time were to resume at a contact centre, there would be a period of delay.

Section 60CC(3)(f)

The mother is the primary carer of these children and as such is unexceptionable. Her incapacity to disassociate her own dislike of the father from the benefits of a relationship between the children and the father is, however, extremely troubling. Further, as indicated by Dr L and a lesser extent the contact centre supervisors, the father’s capacity to actually interrelate with the children appears to be at least in part slightly incomplete.

Section 60CC(3)(g)

Both parents struck me as being selfish, self-centred and immature. Their personalities are likewise given to florid exaggeration and mutual resulting criticism and self-exculpation. Neither parent possesses any great insight and these deficiencies are significant inhibitors to a sensible way forward.

Section 60CC(3)(h)

This is irrelevant.

Section 60CC(3)(i)

This is an important matter in the context of this case, although I have probably dealt with it sufficiently already in dealing with other matters. The mother says she wishes the children to see the father but to be safe. She then spends a lot of time effectively telling the children that they are not safe with their father so that they do not spend time with him. Her attitude towards the responsibilities of parenthood is compromised in this sense. Likewise, the attitude of the father to parenthood has about it a strong element of the proprietary. He sees the children as his. While that is, of course, true in one sense, children are not chattels. The very fierce sense of ownership that I discern in the father’s position is one in which he puts himself first and the children second.

Section 60CC(3)(j)

I have already dealt with the issue of family violence. There clearly has been some as I have already made plain. It is an important matter and requires to be given serious consideration.

Section 60CC(3)(k)

This case is strewn with Intervention Orders and I have already dealt with this aspect of the matter.

Section 60CC(3)(l)

It would plainly be better to make final orders but it is simply not practicable to do so given the situation on the ground between the children and their father.

Section 60CC(3)(m)

Thus far I have dealt with this matter in a fairly straightforward and conventional way. There is however, a further consideration of considerable significance. This is the appalling letters set out at paragraph 192, which I repeat I am fully satisfied the father sent to the mother. They cannot be put to one side. Even taking the most beneficent view of what is said about X, the assertions that the father would have sexual intercourse with the mother’s two children who are not his own biological children is extremely disturbing. Even if written in a rage as I find it was in a sense it is not the sort of comment that one can simply take back. I am not prepared to progress this matter further until Ms E or Dr L or both have given evidence as to what recommendations if any they would make in the face of the Court’s present finding. Both Ms E and Dr L made very proper reference in their reports to the fact that it would be for the court to determine what the true facts are. Now I have done that I wish to have their opinions as to how the matter should proceed.

Conclusion

In the light of the matters set out immediately above I will give the parties a period of time to consider these reasons for judgment and then list the matter for further mention as to exactly how the matter will proceed.

I certify that the preceding two hundred and forty nine (249) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 14 September 2016

[2016] FCCA 2146

14 September 2016

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Family Law

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