Vale & Vale & Anor

[2018] FamCA 19

FAMILY COURT OF AUSTRALIA

VALE & VALE AND ANOR [2018] FamCA 19

FAMILY LAW – CHILDREN – with whom the children live – where the mother failed to participate at the trial after the first day – where the mother forged the father’s signature to obtain passports for the children and attempted to remove them from Australia – where the mother previously absconded with the children after a Recovery Order was made – where the children were placed into the father’s care in July 2015 – where the eldest child left the father’s care about a fortnight before the trial started – where there are various allegations of family violence – whether there is a risk associated with the children spending time with either parent.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Australian Passports Act 2005 (Cth)

Banks & Banks (2015) FLC 93-637
Cox & Pedrana (2013) FLC 93-537
McCall & Clark (2009) FLC 93-405
Vigano & Desmond (2012) FLC 93-509

APPLICANT: Mr Vale

RESPONDENT: Ms Vale

INTERVENOR: Secretary, New South Wales Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

FILE NUMBER: SYC 7455 of 2012

DATE DELIVERED: 22 January 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 14, 15, 16 and 17 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Ulbrick, G & D Lawyers

THE RESPONDENT:

In person via video link from P Town on 14 November 2016

No appearance on 15, 16 and 17 November 2016

COUNSEL FOR THE INTERVENOR: Mr Moore

SOLICITOR FOR THE INTERVENOR: Crown Solicitor, New South Wales

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous parenting orders are discharged.

2. The children, B (born … 2001) and C (born … 2004) live with the father.

3. The father have sole parental responsibility for the major long term issues (as that term is defined in the Family Law Act1975 (Cth)) in relation to the children, including but not limited to decisions regarding the children’s:

   (a)       current and future education; and

   (b)       religious and cultural upbringing;  and

   (c)       health.

4. Unless agreed between the parents in writing, the children shall spend supervised time with the mother as follows:

   (a)for a period of four (4) months and pursuant to s 65L of the Family Law Act1975 (Cth): once per month for up to two (2) hours, with such time to be supervised by a Family Consultant, nominated by the Regional Co-Ordinator of Child Dispute Services (Parramatta Registry) at Child Dispute Services, Parramatta Registry of the Family Court of Australia; and, thereafter

   (b)once per month: for two (2) hours at a Contact Centre nominated by the father in writing as the venue for this time between the mother and the children and the father shall provide the Family Consultant with the written notice of the same so that the mother can be informed of the details of the Contact Centre.

5. The Family Consultant is hereby authorised to bring any occasion of supervised time to a conclusion if such person forms the view that the time is not beneficial to the children.

6. The father shall be responsible for the costs associated with the children’s travel to the Parramatta Registry of the Family Court of Australia for the purpose of the supervised time outlined in Clause 4(a) of this Order.

7. Unless otherwise agreed between both parents and the Regional Co-Ordinator of Child Dispute Services (Parramatta Registry) in writing, no person save for the mother shall attend at the supervised time which is to occur as prescribed by Clause 4(a) of this Order.

8. Each parent shall, as soon as possible, attend and complete any intake process required by the Contact Centre nominated by the father and each shall be responsible for the costs of their own intake process.

9. The father shall be responsible for paying any costs levied by the Contact Centre in relation to each period of supervised time the children spend with their mother at such Contact Centre.

10. Unless otherwise agreed between both parents and the Co-Ordinator of the relevant Contact Centre in writing, no person save for the mother shall attend at the supervised time which is to occur as prescribed by Clause 4(b) of this Order.

11. In the event that the mother fails to attend to spend supervised time with the children (as provided for in Clause (4) of this Order) on two (2) consecutive occasions or fails to register for, attend and complete any intake process required by the Contact Centre nominated by the father, the operation of Clause (4) shall be suspended until written agreement between the parents.

12. Except as is provided for in this Order or as is agreed between the parents in writing, the mother is restrained and an injunction issue restraining her from:

    (a)       directly or indirectly contacting the children; and

    (b)       directly or indirectly communicating with the children; and

    (c)       directly or indirectly spending time with the children; and

    (d)acting, directly or indirectly, to remove the children from the father’s care.

13. The mother is restrained and an injunction issue restraining her from:

    (a)denigrating the father, and/or any of the arrangements made by him for the children’s care, to or in the presence of the children; and

    (b)discussing these proceedings and/or any of the evidence obtained, filed and given during these proceedings in any manner which identifies the content of the same, save for the purposes of obtaining legal advice or during discussion with the Family Consultant nominated by the Regional Co-Ordinator of Child Dispute Services (Parramatta Registry) for the purpose of Clause (4)(a) of this Order; and

    (c)obtaining or attempting to obtain from the children any details about the name and/or location of the schools at which they attend; and

    (d)asking that the children provide her with details of their mobile telephone numbers (if any) and any email address through which they may be contacted; and

    (e)publishing in a newspaper, periodical publication, by radio broadcast, or television or by other electronic means (including Facebook) or otherwise disseminating to the public or a section of the public (either by her own hand or through directing any third person):

    (i)any account of these proceedings; or

    (ii)any reference to documents relied upon in these proceedings; or

    (iii)any reference to the contents of any document subpoenaed for the purpose of these proceedings; or

    (iv)any other information,

    that identifies the children or the parents or any person who was a witness in the proceedings.

14. Save as is otherwise provided for in this Order, the father is restrained and an injunction issue restraining him from:

    (a)denigrating the mother to or in the presence of the children; and

    (b)discussing these proceedings and/or any of the evidence obtained, filed and given during these proceedings in any manner which identifies the content of the same, save for the purposes of obtaining legal advice or during discussion with the Family Consultant nominated by the Regional Co-Ordinator of Child Dispute Services (Parramatta Registry) for the purpose of Clause (4)(a) of this Order; and

    (c)publishing in a newspaper, periodical publication, by radio broadcast, or television or by other electronic means (including Facebook) or otherwise disseminating to the public or a section of the public (either by his own hand or through directing any third person):

    (i)any account of these proceedings; or

    (ii)any reference to documents relied upon in these proceedings; or

    (iii)any reference to the contents of any document subpoenaed for the purpose of these proceedings; or

    (iv)any other information,

    that identifies the children or the parents or any person who was a witness in the proceedings.

15. The Commissioner of the Australian Federal Police place the name of the child C (a male, born … 2004) on the Family Law Watchlist at all international departure points in Australia for a period of two (2) years.

16. The father has leave to provide a copy of the Reasons for Judgment delivered 22 January 2018 to any Contact Centre he proposes be engaged for the purpose of facilitating the children’s supervised time with the mother and is permitted to engage in discussions with any such Contact Centre about the contents of the same for the purpose of ascertaining the Centre’s willingness to provide supervision of the time between the mother and the children.

17. The Independent Children’s Lawyer has leave to publish the following to the New South Wales Department of Family and Community Services:

    (a)the Family Reports, dated 4 July 2014 and 27 November 2015, prepared by Mr E; and

    (b)the affidavit of Doctor F, Psychiatrist, filed 11 August 2014; and

    (c)       the affidavit of Doctor N, filed 10 November 2016; and

    (d)       a copy of this Order;  and

    (e)       a copy of the Reasons for Judgment delivered 22 January 2018.

AND IT IS FURTHER ORDERED THAT

1. As soon as can practicably be organised following the delivery of Judgment, the terms of this Order are to be explained to the children by a Family Consultant nominated by the Regional Co-Ordinator of Child Dispute Services (Parramatta Registry) and such explanation shall occur in the presence (whether in person or by video-link or by telephone) of the Independent Children’s Lawyer.

AND IT IS FURTHER ORDERED THAT

1. For the purpose of the process outlined in Clause (18), the father shall make all necessary arrangements to facilitate the children’s attendance at the Parramatta Registry of the Family Court of Australia and shall deliver them to Child Dispute Services (Parramatta Registry) at a time and place to be advised by the Regional Co-Ordinator of Child Dispute Services (Parramatta Registry) following the delivery of Judgment in this matter.

AND IT IS FURTHER ORDERED THAT

1. The Intervener do all that can reasonably be done to assist the father with arrangements for the child, B:

   (a)to attend at Child Dispute Services, Parramatta Registry of the Family Court of Australia for the purpose of having this Order explained to her; and, thereafter

   (b)to return to live with the father.

AND IT IS FURTHER ORDERED THAT

1. After the process outlined in Clause (18) has been implemented, or reasonable attempts have been made to complete the same, the Independent Children’s Lawyer is discharged.

2. All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.

3. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC7455 of 2012

Mr Vale

Applicant

And

Ms Vale

Respondent

And

Secretary, New South Wales Department of Family and Community Services
Intervenor

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT[1]

[1]I apologise to the parties for the delay in finalising this matter and for the length and detail of these Reasons. Whilst some may say that such detail is unnecessary and that brevity and timeliness is of greater importance, this matter is one in which, in my view, it is vital that the information available to the Court at the hearing is fully recorded: not only so that those who may be provided with these Reasons can clearly understand the entire context within which decisions I have reached were made, but also so that all of the information which was made available to the Court is collated within one document.

1. Until July 2015, the children B (born in 2001) and C (born in 2004) had always lived primarily with their mother.[2] This situation changed when, on 21 July 2015, the Recovery Order made on 18 September 2014 was executed.  On that day, the children were placed into the care of their father.[3] 

   [2]Who was born in 1966,.

   [3]          Who was born in 1965.

2. C remained living with him as at the date of the trial. 

3. However, on 11 October 2016, B travelled by train to P Town from her father’s home in the O Town region of New South Wales.  She made contact with an organisation known as L Group. The New South Wales Department of Family and Community Services (“the Department”) was later notified. After contact was made with a maternal uncle, B travelled to Q Town to stay with him and his partner. 

4. A Recovery Order was issued by the Court on 20 October 2016.  Before this could be executed, B travelled with a maternal relative to R Town.  They attended at the police station in that town. B was very upset. When the police were informed of her presentation, they suggested that her relative take her to the local hospital.

5. B was subsequently admitted to the S Hospital at R Town.  During her voluntary admission there, she told members of the hospital staff that she would rather kill herself than return to live with her father.

6. The Department was notified again. Officers from the Department subsequently brokered an agreement between B and her father about her short-term living arrangements. As at the date of the trial, she and her maternal relative were staying in a motel funded by the Department.

7. As was made clear by evidence led by the Department after leave to intervene in the proceedings was given on the Thursday before the trial started, this living arrangement is only temporary.

8. Despite intervening, the Department did not seek orders for parental responsibility in respect of either B or C. Further, when afforded the opportunity to make submissions about those orders which are in the children’s best interests, Counsel for the Department told the Court that the Department had no current intention of applying for an order which would see B come within the purview of the Minister’s decision-making. This position was outlined as being based on the Department’s assessment and/or acknowledgement – reached after participation at the trial and access to all of the material associated with the trial process – that the children will not be at a risk of harm, arising from his parenting of them, if they live with their father in his home in the future.

9. The mother appeared by video-link from the P Town Registry on the first day of the trial. She unsuccessfully applied for, amongst other things, an order that the hearing be adjourned. She did not appear at the second day of the trial, nor thereafter.

10. The Independent Children’s Lawyer informed the mother during the course of the second day of the trial that the hearing would continue in her absence.  I consider the mother was clearly informed that witnesses relied upon by other parties would be made available for her to challenge through cross-examination if she chose to re-join the process. 

11. The mother has previously failed to comply with multiple Directions for the filing of trial material.  In addition, she has failed to comply with the Direction that she file a list identifying those documents upon which she intended to rely at the trial. This failure occurred despite the importance of this action being emphasised during pre-trial management hearings and in circumstances where the mother has previously demonstrated the capacity to file interim applications and supporting affidavits whilst self-acting.

12. Further, attempts on the first day of the trial to have the mother identify those documents upon which she wanted to rely at the trial were completely unsuccessful.

13. Consequently, save for documents read by Counsel for the Independent Children’s Lawyer as part of the Independent Children’s Lawyer’s case, there is no direct sworn evidence from the mother before me.  Of course, her accounts of events – as provided to the authors of the various reports and/or as contained in other documents – are before me.

14. Despite her absence from the trial, I have proceeded on the basis that the mother contends the children should be reunited under her care and she should be accorded sole parental responsibility for major long term issues in relation to them. In broad summary, her contention appears to be that parenting orders to give effect to this result are in the children’s best interests because that is what the children want, they are fearful of their father,[4] he has significant parenting deficits (for example, he told B she should be with him and not her mother, he told C stories about his mother that are not true and that all women are “bitches” and not to be believed), he has previously threatened to hurt and kill her, is not stable, does not like women, does not manage social situations well, is not a compassionate or social person and is likely to isolate the children.

    [4]          As she conveyed to Dr F in early May 2014.

15. In contrast, the father contends that both children should live with him: that is, C should remain living with him and B should be reunited with her brother under his care. Whilst he acknowledged that B does not, at present, appear to want to return to live with him, he maintained that an order for her to do so is in her best interests and that – if he continues to be accorded sole parental responsibility for major long term issues in relation to the children as he seeks – he will simply have to make appropriate decisions about her living arrangements in the exercise of that parental responsibility.

16. The bases upon which the father seeks to persuade the Court that the children’s best interests will be met by orders which see them live with him include, in broad summary, that he is the parent better able to manage the children’s educational requirements (because he will ensure they continue to attend at school rather than participate in Distance Education, which he fears will socially isolate them) and their health (because, in the mother’s care, the children have been exposed to what he says are her views that they are unwell and have allegedly suffered various ailments like glandular fever and chronic fatigue syndrome – none of which he says have been confirmed by a medical practitioner and/or associated tests). He also advances that the mother has exposed the children to her negative views and thoughts about him and has said inappropriate things about him to them. He submits she has so manipulated them – and instilled an unwarranted fear of him in them – that she has been emotionally abusive of them.

17. The mother’s decision to absent herself from the trial, listed for five days, after the proceedings concluded on day one has meant that:

    a)she has deprived herself of the opportunity to, amongst other things:

    i)give her evidence of the father’s alleged violent behaviours toward her and the children during their cohabitation and about his alleged actions after separation; and

    ii)lead evidence from other people in support of the allegations she has previously made about his asserted violence and other parental deficiencies; and

    b)she has deprived the other parties of the opportunity to cross-examine her – whether about the content of her allegations and/or contentions or about other matters (including those of coincidence) which arise from a consideration of the chronology of events as established by consideration of all of the information presented to the Court during the trial.

1. Of course, the mother’s absence from participation in the proceeding does not remove from the Court the obligation to determine those allegations made by her to the authors of the various family and psychiatric reports relied upon by other parties at the trial or as recorded in any of the documents tendered at the trial.  It does mean, however, that the Court is deprived of the opportunity to observe the mother during cross-examination, to observe the father during the mother’s cross-examination (conducted via video-link) of him and of receiving any other evidence known only to her or only within her purview.

2. Such limitations are the direct consequence of the mother’s considered decision to withdraw from further participation in the trial after the conclusion of its first day.

3. As already noted, these limitations do not, however, obviate the necessity for those issues enlivened on the evidence before the Court to be resolved by the making of findings of fact. In particular, the mother’s allegations (that the father perpetrated serious family violence against her in the presence of the children and, therefore, exposed them to family violence and committed a specific act of physical violence against C) and the father’s allegations (that the mother deliberately, and without foundation, acted in a manner which has been emotionally abusive of the children and which has caused them significant emotional damage) must still be determined.

4. A further consequence of the mother’s failure to file affidavit material in support of her application for final parenting orders (as opposed to in support of the various interlocutory applications she has filed) is that the Court does not have any evidence of her current living arrangements:  that is, I do not know, for example, where the mother lives, the state of her accommodation or whether she shares that accommodation with any other adult person.  She has provided only a post office box number as an address for service. Save for this and the details of the telephone number/s and an email address she provided to the Court to facilitate her participation in the proceedings, there is no other information about her living arrangements before me. 

5. This has the obvious consequence that I do not know what the children’s living arrangements would be in the event an order was made for them to return to live with their mother. I do not know the educational arrangements she would implement for the children if they returned to live with her:  although, it may be more likely than not that she would do what she has done previously and re-enrol them in Distance Education or, perhaps – as she did during the approximately 10 month period when she evaded the authorities charged with executing the Recovery Order – educate them herself. I do not know whether they would see their father or not. The mother’s past actions and attitude toward the children’s relationship with their father certainly suggests it is highly unlikely she would promote them having any relationship or interaction with him at all if they returned to live with her.

6. In order to appreciate the context within which the decisions about those parenting orders which are in each of the children’s best interests[5] are to be made, reference must, of necessity, be made to previous events.

   [5]As determined by reference to the relevant s 60CC considerations and in the context of the Objects of Part VII of the Family Law Act 1975 (Cth).

7. This is not a case which permits of a brief overview of such matters. In my view, a proper appreciation of the various allegations and assertions about each party and the conduct of the matter can only be gained via relatively close attention to what has gone before.

8. Important subtleties and nuances can easily be overlooked if assertions are taken at face value or context ignored.

Chronology of events

1. The parents commenced cohabitation in 1997. They married in 2000. In about mid-late 2004, they relocated to T Town.[6]

   [6] Affidavit of the father filed 11 October 2016 at [4].

2. On the father’s account, separation occurred in December 2005 when the mother took the children with her to live in Sydney.[7] He remained living in T Town until about March 2006 when he moved to Sydney to live with the mother and the children.[8] On his case, whilst the parents lived in the same residence, they did not rekindle their relationship.

   [7]          Affidavit of the father filed 11 October 2016 at [4], [6].

   [8]Affidavit of the father filed 11 October 2016 at [8].

What happened between 2006 and when the father commenced proceedings at the end of 2012?

1. It appears that, irrespective of whether the parents had separated or not and save for a period between about May 2010 and August 2010 (when the mother and children lived in accommodation associated with her employment), the parents and their children lived under the one roof[9] from March 2006 (after the father’s return to Sydney) until about September 2012.[10]

   [9]Albeit ‘separately’ on the father’s case.

   [10]Affidavit of the father filed 11 October 2016 at [10].

2. Departmental information appears to be that, on about 7 June 2006, a report was received which related to inadequate clothing for the children and neglect; habitual absence from engagement in education; asserted failure to ensure medical treatment was provided; an alleged risk of psychological harm and an allegation of physical mistreatment.[11]

   [11]         Exhibit A p 44.

3. Whatever the extent of the reported concerns, the children remained in their parents’ care.

4. On 15 October 2009, the mother told Ms U, a psychologist, that one of her brothers was a convicted paedophile – she explained he had had a sexual relationship with a consenting 15 year old and went to gaol about 20 years earlier. She said her brother Mr V was ‘okay’. She said her father was a misogynist and her three brothers were repugnant to her. She also reported a desire to change her name and address.[12]

   [12]         Exhibit 5.

5. The mother also told Ms U that her youngest child (C) had been told by his father to “do this or I will kill you”; she said she was emotionally scared of the father due to his unpredictability. She reported that a child (whom, logically, is B) had been bullied at school and wanted to kill herself – which was copying her father; she had taken her to a psychologist for help.

6. The mother told Ms U the father was not in a dark place now and was helping a little with housework. However, she also said he was depressed and not taking responsibility for his state of mind, that she could not rely on him and felt like she was a sole parent. Ms U told the mother it was not a joke about the father saying he would kill her – the mother agreed, but reported she felt it had all long passed.

7. The mother also told Ms U that the reason she had called the Department a couple of years earlier was because she wanted to find out what documented evidence she would need to be able to leave without “him” (inferentially, the father) getting the children. She said it was more of a legal question to make sure she could keep the children. Doing the best that I can (given the mother’s absence from further participation in the trial), it seems highly likely that this comment was a reference by her to the report to the Department in mid-2006.

8. Ms U advised the mother to drop the “banter/games” in her discussion with the father and to say what she wanted as an adult.[13]

   [13]         Affidavit of Dr F filed 11 August 2014, Annexure “C”, at p.19.

9. On 27 November 2009, the mother attended on Dr W (a psychiatrist) for an interview associated with a work event. She reported previously having experienced diminished concentration, a diminution in her short-term memory and as being irritable. As at this consultation, she reported an improvement in her memory and concentration but that she remained irritable. She reported her marriage was “okay”.  Dr W thought her mood and affect depressed and that she was currently totally unfit for paid employment.[14]

   [14]         Exhibit 5: report dated 2 December 2009.

10. The mother attended on Dr X (a psychiatrist) on 6 February 2010. She reported being the primary breadwinner and not being close to her brothers. She also said she felt her memory had been adversely affected by a traumatic work experience, because she “blanks out” during conversations; she was fearful she was saying something wrong because she had forgotten what had already been said.[15]

    [15]         Exhibit 5: report dated 2 May 2010.

11. The mother was interviewed by Dr Y (a psychiatrist) on 25 August 2010.[16] He said it was evident, from the outset of the interview, that she was suffering from a significant Unipolar Major Depression which had not been appropriately treated despite her having suffered from this for at least the latter part of 2008. He recorded that she told him she had worked long hours, seven days a week for the Company Z between June 2008 and December 2008 and that, by January 2009, she was experiencing exhaustion, sleep problems, problems with concentration and memory and weight loss (all of which he thought were symptomatic of depression, although she did not recognise them as such at the time). She described that, sometimes, she had hired a nanny for the children and their father[17] took on a large parenting role. She said that, at Christmas 2008, she was incredibly exhausted, not thinking clearly and unable to do anything but “the basics” in terms of household chores.

    [16]         Exhibit 5: report dated 25 August 2010.

    [17]My emphasis.

12. Dr Y noted that, by April 2009, the mother had told her general practitioner she was functioning at 10-20 per cent of her old self and was obviously very depressed. Dr Y considered the mother had described to him the “insidious onset and progression of typical Unipolar Major Depression” in that she described suboptimal functioning, consistent with depression. He considered her to be a genuinely mentally ill person, who had described progressive untreated chronic Unipolar Major Depression.

13. When speaking to Dr Y on 25 August 2010, the mother told him that she and the father “share a good relationship”.

14. The mother attended on Dr AA (a psychiatrist) on 1 September 2010.[18] During that appointment, she reported that the father had previously taken her to see a musical in an attempt to help her feel better and that he had been making sure she ate properly. She reported she had been “a mess” for months in 2008: she was very tired and repeatedly physically ill, had no energy, concentration or motivation and avoided social situations. She said that, in July 2010, she had to go into a room where she was working soon after someone had hanged herself in that room and, in August 2010, another person attempted suicide at her workplace.

    [18]         Exhibit 5: report dated 11 October 2011.

15. When the mother saw Dr AA again on 9 September 2010, she spoke about having weird dreams about death; she said finding the dead girl had prompted some suicidal ideation on her part, but she would never act on it. She described feeling angry and frustrated and losing things; she said she was tearful on a daily basis. She also said that, in her work situation, she was not given “a voice”, nor a right of reply. She also told Dr Y that the scary thing in her dreams was that the girl who was suiciding was asking her to join her.

16. The latter assertion is, I think, particularly relevant to an assessment of the father’s evidence (in responding to the mother’s assertion that he held a knife to her throat and threatened to cut her throat) that, on a number of occasions, the mother held a knife to her throat and threatened to kill herself.

17. The mother saw Dr AA again on 22 September 2010. During this appointment, she reported being in tears every day about things she thought were not particularly major; she described herself as lacking in energy and having trouble planning and making simple decisions or doing simple things like washing and cooking.

18. When the mother saw Dr AA on 13 October 2010, she spoke of being too anxious to go on rides at a theme park, of being teary most days and preferring to be by herself. She also said someone had mentioned suicide, after which she froze – she was worried she was not talking normally and, instead, reacting to things. She explained that her husband was dealing with allegations made against her and following things up for her. The mother also told Dr Y that it was very sad someone so young had suicided – this made her concerned for her own children. She said she felt like she was talking to her husband all the time about her workplace but, because she was having trouble concentrating, she was not remembering what she said.

19. The mother saw Dr AA again on 25 October 2010. She said she was still tearful and was still dreaming about the girl who had suicided. She reported preferring to be alone and feeling like she was on an emotional roller-coaster. She also said friends had called her husband because they were worried about her being so reclusive. She spoke of her husband sending documents to her workplace by registered mail because they kept saying they had not received them.

20. When the mother saw Dr AA on 24 November 2010, she reported that her employer had sacked her and that the psychiatrist appointed by her employer had said that there was nothing wrong with her. She noted she had engaged a solicitor because her husband would have to be a witness. She mentioned she had made contact with friends she had not spoken to for years and that was “good”; she also mentioned attending meditation and having a massage once each week.

21. The mother saw Dr AA on 7 December 2010. She reported that her husband had collected her belongings from her ex-employer. Further, whilst he had suggested that she help him with his work, she was worried he would get angry if she did anything wrong. She said she realised how bad she had been the previous year – she worried about what she was saying because she was not thinking properly. She was concerned she was getting very cranky with the children, when she had not previously been like that. She reported experiencing auditory flashbacks of the aftermath of the suicide event and said that, sometimes, she thought she was very tired of life: she was taking everything very personally and was incredibly tired and thinking things like “what’s the purpose?”

22. When the mother saw Dr AA on 20 January 2011, she reported experiencing terrible palpitations and numbness in her left arm. She said she was better when she had little to do with people, but had been seeing friends who were supportive. She was still having dreams about the girl who suicided but these were very distant – she felt like she had lost two years of her life.

23. The mother saw Dr AA again on 10 February 2011. She said her husband had been present at the mediation with her ex-employers and that it had been awful. She outlined that her ex-employers had denied she had dealt with the girl’s suicide. She also said she thought her husband felt she had a strong case. She had not been able to pay her mortgage (for which her husband was guarantor); she had not been sleeping very well, could not organise herself or her thoughts and was concerned about how she would manage if exposed to conflict.

24. The mother failed to attend an appointment with Dr AA on 31 March 2011.

25. When she next attended – on 9 June 2011 – she said she and her husband  were really struggling financially because he was waiting to be paid for work he had done and she was not working (other than doing an hour of voluntary work). She said she had not told anyone about what had happened because of the reaction by the P&C when she told them she had a mental disorder. She said she dreamed about the girl who hanged herself now and again and thought about this with respect to her own daughter – who had been very upset the week before and who had said that she wanted to kill herself. She explained she had talked this through with her daughter. She told Dr Y that, at times, she felt like she just wanted to go out and disappear.

26. The mother failed to attend an appointment with Dr AA on 9 July 2011. It appears that, on 16 August 2011, the mother’s general practitioner told her she had to keep her appointments with Dr Y, otherwise someone else would have to do the WorkCover certificates.

27. On 15 November 2011, Dr BB authored a medico-legal report about the mother. He recorded she had reported she continued to feel depressed, was suffering nightmares, lacked energy, motivation and concentration. He opined she had developed a major depressive disorder in 2008 (whilst working for Company Z). He recorded that her reported symptoms included consistently depressed mood, insomnia, reduced energy, poor motivation, decreased concentration and emotional lability. Her condition improved in 2009 and she then returned to work in February 2010 but, after working for six weeks, her depression increased in severity. He thought she had suffered post-traumatic stress disorder after events (a suicide and an attempted suicide during her subsequent employment).

28. Dr BB’s report also contains the assertion that the mother reported no separations or episodes of domestic violence and that her irritability and emotional lability undermined the quality of her relationship with the father.

29. In 2012, the maternal grandmother suffered a stroke. The mother travelled from Sydney to G Town to assist. The children remained in their father’s care for the three weeks of their mother’s absence.[19]  It seems the mother was very dissatisfied with the state of the home on her return.

    [19]Affidavit of the father filed 11 October 2016 at [14].

30. Information provided by CC School about B for Semester 1, 2012 is that she had settled very well there, had established positive peer relationships and had achieved excellent results across all subject areas. She was reported to have had 13 days absence.

31. C started in Year 3 at CC School in July 2012, having previously attended at DD School.

32. On 30 August 2012, a Dr EE reported that the mother had persistent symptoms of depression, anxiety disorder and post-traumatic stress disorder; B had “chronic viral infections associated with allergies and immune disorder” and C had probable developmental anomalies – namely, short term memory problems, behavioural changes and delayed milestones – but his IQ was normal.[20]

    [20]         Affidavit of Dr F filed 11 August 2014, Annexure “C”, at p.20.

33. Whilst the mother’s failure to participate in the trial beyond the conclusion of its first day makes it impossible to be completely certain, it seems to be much more likely than not that the mother was the source of the information about the children provided to, and recorded by, Dr EE.

34. On 10 September 2012, B and her mother travelled to stay with the children’s maternal grandparents at G Town. C remained in his father’s care. The father says the mother told him she and B would stay for a few weeks to see how the maternal grandmother was faring and so B could have drier air for her lungs.[21]

    [21]Affidavit of the father filed 11 October 2016 at [16].

35. On 12 September 2012, B was assessed at the J Town Hospital.[22] She described nausea-like symptoms.  Her mother reported her as having been very lethargic for several months, having lost three kilograms, having been easily fatigued and missing a lot of school. Clinical examination found no abnormalities save for multiple superficial scratches on B’s hand. It was noted that the impression was that B did not appear acutely unwell but had “(?) low grade fevers” and may have needed a viral screen. Psychosocial elements were also queried. B was admitted for 48 hours. An earlier medical attendance in July 2012 resulted in no clear signs of pathology and a note that B was not then unwell looking.

    [22]         Affidavit of Dr F filed 11 August 2014, Annexure “C”, at p.16.

1. C finished school on 14 September 2012.  His father arranged for him to fly to J Town on about 16 September 2012 to join his mother and B.[23] As I best understand it, this is the time at which, on the mother’s contention, the parties separated. 

   [23]Affidavit of the father filed 11 October 2016 at [17].

2. The father and mother subsequently spoke on a number of occasions about when the mother and children were returning to Sydney. I accept that the mother’s response was that they would be returning “soon”.[24]

   [24] Affidavit of the father filed 11 October 2016 at [18].

3. However, on 6 October 2012, the mother sent an email[25] to B’s school (CC School) to say that B was still sick and would not be back at school that week. She told the school B had specialist appointments in the upcoming week and, while they were awaiting her latest blood results, she had tested positive for glandular fever. The mother told the school B was also being tested for Lyme disease as both children had had a “bullseye rash” last year and further investigation was needed. The mother also told the school B could not travel; she asked that work be sent for both children. She did not say B would not be returning to school.

   [25]         Exhibit A, p 72.

4. The father’s evidence is that, from early October 2012, the FF Child Protection Office became involved as a consequence of the children’s absenteeism from school. He had a number of meetings with a Ms GG from that office. He was also told by the school principal that, despite the mother telling the school she would provide evidence of B’s illness to explain her absenteeism, she had failed to provide the same.[26]

   [26] Affidavit of the father filed 11 October 2016 at [98].

5. On 12 October 2012, the mother telephoned the school. Amongst other things, she said that: “[Mr Vale] is not good for [B] and causes her anxiety. There is a very poor home environment”. She said she was on support payments, felt unsupported and could not return to the home.  There is no record before me that she told the school that she could not return home because the father had threatened to harm or kill her or had been violent toward her and/or the children.

6. The mother told the school she was “looking” at Distance Education or enrolling the children in school at J Town but needed results from the doctor next Wednesday (17th October 2012).[27] The principal of B’s school told the mother that she needed to know the medical results that day so arrangements could be made to organise an education plan within the confines of B’s medical condition.  The principal also advised that the school would need to speak to the doctor or the principal of the school at which the mother was intending to enrol B.

   [27]         Exhibit A, p 73.

7. On 18 October 2012, the mother sent the father text messages in which she asked that he provide her with money for home education items. When he asked her why she needed these, she told him that, because she did not know when they would be back, she would be teaching the children before they returned to Sydney. I accept that the father told the mother that, whilst B may have been sick, there was no need for C to stay and he should return to school. I also accept that the mother’s response was that B needed C there for company.[28]  

   [28] Affidavit of the father filed 11 October 2016 at [20].

8. On 19 October 2012, the mother told the father she would not be returning to Sydney.  She also told him that, if he wanted to see the children, he would have to move to Queensland.[29] There is no evidence to suggest that she told him that she did not agree to him seeing the children or that she did not want him to see the children or that it was in the children’s best interests not to see him.

   [29] Affidavit of the father filed 11 October 2016 at [21].

9. It appears that, in about late October 2012, the mother enrolled the children in Distance Education (based in HH Town) on the basis of her assertion that she was travelling around Australia.[30] It is clear she did not discuss the children’s enrolment with the father, nor tell him of her asserted plan to travel around Australia with them.

   [30] Affidavit of the father filed 11 October 2016 at [99].

10. On 24 October 2012, B was reviewed by a paediatric registrar at the J Town Hospital.[31] The results of blood tests suggested she may have had a recent episode of glandular fever.  All other investigations were normal. It was said that her hoarse throat may have been attributable to singer’s nodes. The paediatric registrar told the mother and B that there was no serious underlying pathology and that B’s symptoms would settle in time.

    [31]         Affidavit of Dr F filed 11 August 2014, Annexure “C”, at p.16.

11. In early November 2012, the mother told the father that B would be participating in a music competition in Canberra in late 2012 and, if he wanted to see the children, he should make arrangements for accommodation. However, after he confirmed he would see the mother and children at the festival,[32] she told him they would not be competing in the competition and he would not be able to spend time with them. When he asked when he could see the children, she suggested he travel for his birthday later that year.[33]

    [32] Affidavit of the father filed 11 October 2016 at [22].

    [33] Affidavit of the father filed 11 October 2016 at [24].

12. On 18 November 2012, the father called the mother’s mobile to speak to the children. The mother told him they were at the movies, while she was outside the cinema. I accept that, during a second conversation that day, he told the mother she should not leave the children alone as it was too dangerous and that, if she could not look after the children, he would come and collect them. I accept that, when the father later tried to speak with the children at the time nominated by their mother during the earlier conversation, there was no answer.[34]

    [34] Affidavit of the father filed 11 October 2016 at [25].

13. The following day – 19 November 2012 (about eight weeks after both children were in her care and about one month after she had told the father she was not returning to Sydney) – the mother attended the J Town Police Station to apply for an Apprehended Violence Order against the father.[35] She made a statement to the New South Wales police in support of this Application.  Her Application for an Apprehended Violence Order, dated 22 November 2012[36] contains the following allegations about the father’s alleged behaviour (some of which is alleged to have commenced from after B’s birth) and its asserted impact on her and the children:

    a)he became depressed, would often say suicidal things, became very irrational, accused her of things such as poisoning his food and told her things, like how he poisoned his pet rats so he could watch them die; and

    b)he was very negative towards her, constantly put her down, controlled her by making negative and insulting comments towards her friends which caused them to avoid her; he behaved in a similar manner toward her family and, as a result, she was isolated from family and friends; and

    c)despite earning approximately $260,000.00 per year, he controlled her financially by not allowing her money for things such as food or the children’s needs: for example, he asked her to write a shopping list for items she needed but, despite saying he would buy these, did not in fact buy everything that was needed: for example, he refused to buy school jumpers for the children; and

    d)when, during an argument about money in February 2012, she said she wanted to leave and walked towards the front door, he used his left hand to grab her around the throat – he held her around the throat for about 10 seconds before releasing her when she said “Don’t you ever touch me!”; she then took the children by car to a local McDonald’s Restaurant where she sat for a few hours before deciding to return home because she felt she had no choice as she had no money, nowhere to go and no support from her family; and

    e)on a day sometime in 2007, when she was in the kitchen with him and they were engaged in a tense discussion, he picked up a large, white handled, serrated bread knife in his right hand, stood behind her on her right side, flipped the knife over so that the blunt edge was against her throat and said: “Would it be easier to cut your throat this way?”[37]; and

    f)he verbally abused both children, controlled them, did things like preventing them from going to the toilet if they were at a shopping centre; he told B he was going to drop-kick her cat across the road, just to see how upset she became; and, as a result of this behaviour, both children became afraid when they knew they had to spend time with him: they cried uncontrollably, became very clingy towards her and worried about little things; and

    g)in September 2012, she relocated to G Town with the children and since then, had been living in fear that he would come and get her and the children; he had previously told her that, if she ever left, he would hunt her down:  she felt he would hurt her and the children now that she had left him; and

    h)he had been in constant contact with the children and continually told C he was coming to get him and that he would be spending Christmas with him (his dad).

    [35]         Affidavit of the father filed 11 October 2016 at [28] and Annexure “N”.

    [36]         Affidavit of the father filed 11 October 2016 at Annexure “N”.

    [37]She also said she was extremely afraid and surprised as she did not even realise he was holding a knife; she was so afraid she froze and could not move.

14. She also said she feared for her safety and the children’s safety due to the fact she had left the father and she believed he may arrive at her new residence at any time.

15. It also appears from the Application that the mother said that, in October 2011, she had started to keep a diary (which she kept religiously and in which she documented everything) to document what she said was happening in her marriage.

16. This diary is not in evidence before me.  I do not know if it was ever provided to police. The mother’s withdrawal from the trial meant that the issue of her diary and its contents was unable to be explored.

17. According to the contents of the Application, the mother saw a doctor in II Town in August 2012 about her situation, after which she realised the children were suffering a lot with anxiety and she needed to do something to help them. She said she had been in touch with a cousin, who said she would support her if she left the father.

18. There is no evidence from either the medical practitioner in II Town or the cousin before the Court. Again, the mother’s decision to end her participation in the trial has meant that these issues could not be more thoroughly explored.

19. In November 2012, the father was contacted by someone from the Child Support Agency.  He was told the mother had requested the formal collection of child support: she had asserted he had not made payments to her.

20. At some time after this conversation, the father called the mother. He says C answered the phone, was in tears, said he (C) missed him and that his mother would not let them see him (the father). When the father spoke with the mother, he asked when he could see the children; he said his parents wanted to see them for Christmas and also that he wanted to see the children on a regular basis, he missed them and that C was very distressed.

21. I accept that the mother told the father he would not be seeing the children for his birthday or for Christmas and that she would not allow him access to the children until mediation and Court orders were in place.  I accept that, when he asked when he could speak to the children, she told him to call at 6.30 pm every night.[38] I also accept that the father’s later attempts to speak with them at such times were unsuccessful.

    [38] Affidavit of the father filed 11 October 2016 at [26] & [27].

22. The mother’s Application for an Apprehended Violence Order was first heard on 10 December 2012. As the father had not then been served with the Application, an interim order was made in his absence.[39]

    [39] Affidavit of the father filed 11 October 2016 at [158].

The father commences proceedings

1. On 12 December 2012, the father filed an Initiating Application by which he sought final parenting orders that the children live with him and spend time with their mother for four nights each fortnight and for half of the school holiday periods. He also sought interim parenting orders for the children to live with him and spend supervised time with their mother.

2. At some time in December 2012, the father received a Christmas card from the children.[40]

   [40] Affidavit of the father filed 11 October 2016 at [31].

3. On 21 December 2012, the father received correspondence from J Town Hospital. This told him B was to undergo tonsil surgery on 11 February 2013. I accept this was the manner by which he learned that B needed this surgery. It follows that I accept that the mother had unilaterally organised for this procedure. I accept that, when the father contacted the hospital to object to the surgery, he was told it would go ahead unless there was a Court Order prohibiting it.[41]

   [41] Affidavit of the father filed 11 October 2016 at [141].

4. On 7 January 2013, Johnston J[42] made orders in the mother’s absence. His Honour adjourned the matter to 11 January 2013. He ordered the mother appear on that day and deliver the children into the care of the Manager, Child Dispute Services, Sydney Registry. His Honour also noted that, if the mother failed to comply with the Order, the Court proposed to consider issuing a Recovery Order for the police to recover the children.

   [42]Having been satisfied that reasonable attempts had been made to serve the mother (in that a commercial agent handed the maternal grandfather a sealed copy of the father’s Initiating Application and material on 17 December 2012).

5. The parties appeared before Johnston J on 11 January 2013.  The mother was legally represented. His Honour ordered the parties attend a Child Dispute Conference that day. Having made interim orders by consent, he adjourned the proceedings to 26 February 2013.

The January 2013 interim Consent Orders

1. It is important to record that the interim parenting orders made by consent on 11 January 2013 provided that, until 6.00 pm on 26 February 2013:

   a)the parents have equal shared parental responsibility for the children; and

   b)the children live with the father from 9.00 am on 12 January 2013 until 5.30 pm on 21 January 2013[43] (that is, for nine consecutive nights) and, commencing on 30 January 2013, from after school that day until before school on 6 February 2013 (that is, for seven consecutive nights) and, thereafter, on an alternate week basis (with changeover on Wednesdays); and

   c)the parents do all acts necessary to cause the children to commence and attend CC School, at the commencement of the term and, thereafter, each parent be restrained from removing the children from that school; and

   d)the mother be restrained from removing the children from the Sydney metropolitan area, save for taking them to JJ Town between 22 and 28 January 2013 for a singing competition; and

   e)the mother and children have exclusive occupancy of the property in which they had lived with the father before September 2012 on the basis that the father would pay the rent of the same until he could find alternative accommodation for them in the vicinity and, if the mother was not satisfied with this alternative accommodation, he pay her $400.00 per week (for the benefit of the children) toward the cost of other accommodation located in the same area; and

   f)both parties be restrained from causing either child to undergo any medical procedure without the written consent of the other; and

   g)an Independent Children’s Lawyer be appointed; and

   h)a nominated person be appointed as the single expert for the purpose of preparing a Family Report, with each party to pay half of the costs of the same on the proviso that the father pay the entirety of the costs up front and the mother reimburse him at the conclusion of the proceedings.

   [43]         Save for the two hour period from 9.00 am until 11.00 am on 13 January 2013.

2. On 13 January 2013, the father tried to take the children to the zoo. I accept the mother would not allow him to take them without her and, consequently, he spent time with them in her presence.[44]

   [44] Affidavit of the father filed 11 October 2016 at [33].

3. Whilst it is not entirely clear, I proceed on the basis that, despite the terms of the interim Consent Order, the father was content enough to permit the mother to be present during his time with the children. 

4. On 12 February 2013, the mother sent the father a text message in which she thanked him for the child support she had received that day.[45]  That she did so suggests that parental interactions at that time were ostensibly cordial enough.

   [45] Affidavit of the father filed 11 October 2016 at [36].

A final parenting order is made by consent: February 2013

1. On 11 February 2013, the Court made final parenting orders by consent. It is important to record that this final Consent Order provided (in summary) that:

   a)the parents have equal shared parental responsibility for the children; and

   b)the children live with the mother; and

   c)the mother be permitted to relocate the children to live in J Town with her; and

   d)the children spend time with their father each alternate weekend (from 5.30 pm Friday until 7.00 pm Sunday), for half of all school holiday periods and on special days.

2. The clause dealing with the allocation of parental responsibility specifically referred to the children’s current and future education. In addition, specific orders required, for example, that the parents not deliver the children to school unless an appropriate supervisory person from the school was present at the time of delivery and the children had been provided with appropriate clothing, food and drink; that each parent keep the other informed as soon as reasonably practicable of any social, school or religious function which the children were to attend; that each parent be able to liaise directly with the children’s schools to obtain information about each child’s progress; that each parent authorise the Principal of each school attended by the children to ensure each parent was provided with a copy of school reports and newsletters; and that each parent be entitled to attend the children’s school functions.

3. Such terms make it much more likely than not that the issue of the children’s physical attendance at school premises and in a classroom was contemplated and, in fact, intended.

4. The February 2013 Consent Order also included a Notation to the effect that:

   [B] had suffered from anxiety and ill-health in recent months and that, in the event that during times when she is with the father, she expresses a wish to return to the mother’s care, the father will act in accordance with those wishes where it is reasonable and possible to do so.

5. That the mother consented to the children spending unsupervised time with their father on alternate weekends and for extended periods during school holidays is capable of being interpreted in a number of different ways. These seem to me to include that, whatever her allegations about his asserted behaviours, she did not then consider the father to pose a risk to the children; or, that she only agreed to the Consent Order in its terms so as to achieve her wish to relocate the children to live with her in J Town and she had no intention of ever facilitating the children spending time with their father in the manner provided for in the Order.

1. The mother’s decision to absent herself after the end of the first day of the trial meant these possible explanations (and/or any other permutations) for the mother’s decision-making and actions could not be explored via cross-examination.

What happened in 2013 after the February Consent Order was made?

1. On 19 February 2013, the parents and the children had dinner together at a restaurant.[46] On 23 February 2013, the parents and the children attended an  exhibition at a museum in Sydney. I accept that the father acquiesced to the mother’s insistence on accompanying the children so the children could see their parents working together and co-operating. I accept the mother sent the father a text message that night in the following terms: “Good night from the kids to you :-) thanks for buying me the ticket today and hope all went well”.[47] Again, this communication suggests that parental interactions at that time remained ostensibly cordial enough.

   [46] Affidavit of the father filed 11 October 2016 at [36].

   [47] Affidavit of the father filed 11 October 2016 at [36].

2. On 27 February 2013, the father received correspondence from J Town Hospital which told him B had been scheduled for surgery in early March 2013.[48]

   [48] Affidavit of the father filed 11 October 2016 at [143].

3. On 2 March 2013, the mother returned the keys to the formerly shared rental premises[49] to the managing agent.[50]

   [49]         To which she and the children had returned after the 11 January 2013 Consent Order was made.

   [50] Affidavit of the father filed 11 October 2016 at [39].

4. On 5 March 2013, the mother emailed[51] Mr KK, B’s classroom teacher, at Distance Education as follows:

   [51]         Exhibit A, p 51.

   Hi [Mr KK],

   As per usual, nothing with us is simple or works to plan. My former husband is making things very difficult for us. He was about to pursue further action so we had to go north as per Consent Order. He is certainly not making it easy for us and has been doing some rather subversive action in the background. [B] as a consequence has been sick again with anxiety. She ha[52] been waking in the middle of the night with tremors and shaking. [C] has had severe reflux and I have been working hard with my solicitor to lessen the effects. They have in the last 2 days settled down.

   To top it all off we had to leave quickly and left some materials behind. [B] has completed a beautiful piece of art for you – a collage of butterflies on canvas. [C’s] assignment that focused on what we saw at the Sydney Natural Museum was also left behind. I believe it’s in storage for now but I still have the photos we worked off. Last Monday my solicitor advised me to leave Sydney and go to [J Town] as per Consent Orders quickly… so we bundled everything up, arranged a quick removalist to take the things from the house we once lived in. I am just getting to the boxes today. The worst thing is to try and keep separation issues from the kids so they don’t become alarmed. I am so proud of [B] and [C] being able to help and take all of this in their stride and so grateful for the help of my parents.

   My former husband, a [professional] who earns over 270k per year (hid all monies from me of course), has far more resources than unemployed me so I have been doing my best to manage the situation to stop the kids from being ‘placed in the middle’!! …..And also to keep to our goals and remain resilient!! I have been fighting fires as my husband put debts into my name and I am having them changed ……..as well as teaching the kids!!! He changed the rental property into my name and left a huge mess – 1000’s of dollars worth of damage and the landlord is trying to take me (and only me) to court even though I haven’t lived there for 7 months. I cannot tell you how challenging all this is. Anyway, in a few weeks all this will be dealt with and hopefully back to as normal as we can make it.

   [B] has a test for a scholarship on Thursday. [C] is doing much better this year and just grizzles for a minute and loves to tick the boxes for the goals we set at the end of the day.

   [52](sic).

   This week

   We are still playing catch up. We can come down to you next week and hand everything over.. Or Friday. I have been advised to put the kids back into school so I am looking at enrolling them at [LL School, G Town]. We will have all work completed by the end of the week and was hoping that it would be OK to put them into school next week. I pray for divine intervention… just having to wait in a queue at the moment.

   Please advise what’s next step and the best way to wrap things up.

   Regards

   [Ms Vale, B and C].

5. Given that the February 2013 Consent Order (which finalised the parenting proceedings) provided that the children live with their mother and enabled her to move them from Sydney to live in J Town, I do not accept any contention that the father was making things “very difficult” for either the mother or the children.

6. Given the mother had sent the father a text on 12 February 2013 to thank him for the child support she had received that day, I do not accept any contention that he was leaving her to meet the children’s costs without appropriate assistance. In addition, as already noted, he had acquiesced in her wish to attend with the children during their time with him and had behaved such that she sent him the text referred to in paragraph 100 only about 13 days before she emailed Mr KK.

7. On the assumption that the rental premises to which the mother referred were those to which she and the children returned (by agreement) after the January 2013 interim Consent Order was made, her assertion that she had not lived there for seven months appears to be, on the face of it, untrue.

8. In addition, despite the mother’s assertion to Mr KK that she had been advised to put the children back into school and her information that she was looking at enrolling them at LL School, G Town, it is clear the children did not return to non-Distance Education schooling until after they started to live with their father in July 2015. 

The children’s last interaction with their father in 2013

1. On about 15 March 2013, B spent time with her father – as it turned out, for the last time until she was placed into his care in July 2015.[53] At Easter 2013, C spent time with his father – as it turned out, for the last time until he was placed into his care in July 2015.[54]

   [53] Affidavit of the father filed 11 October 2016 at [42].

   [54] Affidavit of the father filed 11 October 2016 at [42].

What happened around Easter 2013 and thereafter?

1. On 28 March 2013, Dr MM from the NN Medical Centre wrote that, when he met B in September 2012, he thought it appropriate that she be home-schooled but now thought her well enough to return to school. [55]

   [55]         Affidavit of Dr F filed 11 August 2014, Annexure “C”, at p.17.

2. On 30 March 2013, the father learned that B attended a medical practice with the mother on 26 March 2013. [56] On 31 March 2013, he sent the mother an email by which he consented to B having surgery, which was scheduled for 28 June 2013.[57]

   [56] Affidavit of the father filed 11 October 2016 at [144].

   [57] Affidavit of the father filed 11 October 2016 at [144].

3. On 10 April 2013, a magistrate conducted the final hearing of the mother’s Application for an Apprehended Violence Order. Whilst the Order in evidence does not record that it was made by consent or “without admissions”, the transcript of the proceedings shows that it was made “without any admissions, but by consent”.[58] The transcript also establishes that the father consented to an order being made in reliance on the mother’s undertaking to the Court that she would present the children at the foyer of the local police station to facilitate them spending time with their father (an undertaking with which she did not subsequently comply).

   [58]         Exhibit A: p 1.

4. On 11 April 2013, the father contacted Ms OO at the New South Wales Department of Education to express his concern about the children participating in Distance Education. He was told they would look into it.[59] He subsequently emailed the Department again on 8 May 2013 to ask for an update.

   [59] Affidavit of the father filed 11 October 2016 at [100].

Weekend time is missed

1. On 24 April 2013, the father received a text message from the mother to advise him they were moving into a house that weekend and the children would not be available to spend time with him.[60]

   [60] Affidavit of the father filed 11 October 2016 at [43].

2. On 23 May 2013, the father filed a Contravention Application in the Federal Circuit Court.[61]

   [61] Affidavit of the father filed 11 October 2016 at [51].

3. I accept that, at some time before B’s birthday in 2013, the father posted a card and two gift cards totalling $100.00 to her at the maternal grandparents’ house. I also accept he did not hear anything from B or the mother about these gifts.[62]

   [62] Affidavit of the father filed 11 October 2016 at [53].

School holiday time is missed

1. On 27 June 2013, the mother told the father, by text, that the children would not be able to spend the first week of the school holidays with him because both were unwell and unavailable. I accept that, when he asked to spend time with them in the second week of the holiday, the mother did not respond.[63]

   [63] Affidavit of the father filed 11 October 2016 at [47].

2. It certainly appears that, despite having entered into the February 2013 Consent Order – by which she secured her desire to have the children live with her and move to live outside Sydney – the mother almost immediately failed to comply with those of its terms which provided for the children to spend the regular and relatively frequent, unsupervised time with their father she had promoted to the Court as being in their best interests.

The mother’s attitude to B’s health and to communication with the father

1. As noted earlier, B was scheduled to undergo tonsil surgery on 28 June 2013. However, on 1 July 2013, the hospital telephoned the father to ask why she had not presented for the surgery. He was also asked why the hospital had been unable to contact the mother.[64]

   [64] Affidavit of the father filed 11 October 2016 at [145].

2. I accept that, on 2 July 2013, the father sent the mother a text message to tell her the hospital had called to say they were “very concerned” for B’s health because she had failed to attend for surgery. I also accept he asked the mother to tell him what her intentions were about the surgery and to confirm the children would be made available for “handover” that Friday.

3. The mother’s response is very instructive. She said:

   As usual you are creating problems. Please stop this unnecessary harassment.[65]

   [65] Affidavit of the father filed 11 October 2016 at [146].

4. I do not consider the father’s actions in seeking to know the mother’s plans for the treatment of B’s health to be “unnecessary harassment”. He was doing nothing other than exercising an aspect of equal shared parental responsibility – one of the very matters to which the mother had agreed when she joined with him in asking that the Court make the February 2013 Orders by consent.

5. Further, I do not accept any contention that, in (implicitly) asking the mother to comply with the terms of the parenting order to which she had agreed in February 2013, the father was acting to “create problems” or engaging in “unnecessary harassment”.  In my view, he was doing nothing more than asking her to follow the terms of the agreed final parenting order.

6. I accept the father later learned that, instead of B having tonsil surgery, the children participated in a music competition held at a location approximately 12 hours away from where they were living.[66] As they were then living with their mother, it is obvious she decided to prioritise their participation in this event ahead of addressing B’s health issues and that she did so despite medical professionals having determined that B needed surgery to address the same.

   [66] Affidavit of the father filed 11 October 2016 at [148].

7. Such decision seems completely inconsistent with assertions made by the mother on occasions to others about the children’s ill-health.  It is also inconsistent with the proposition that the mother has placed more importance on managing and dealing with the children’s health issues than the father.

8. On 3 July 2013, the mother reported to police that a neighbour had contacted her to report that a trailer from a property she owned (but did not live in) had been stolen.

9. On 10 July 2013, the father’s Contravention Application came before Judge Henderson. Her Honour transferred it to this Court. A Directions hearing was listed for 20 August 2013. The Court also ordered that, provided the father’s Application and associated documents were emailed to the mother at an email address she had previously used for service in the earlier proceedings, it would be deemed to have been served on her.

Matters about the children’s education

1. On 31 July 2013, Ms OO (from the New South Wales Department of Education) contacted the father. She asked him for the mother’s contact details. She told him the children had not completed any Distance Education that term and that the mother was not responding to attempts by Distance Education to contact her. She also told him the mother had been told to enrol the children at a school by the previous Friday, but had not done so and had failed to answer calls or respond to emails.[67]

   [67] Affidavit of the father filed 11 October 2016 at [101].

2. I accept the father then sent the mother a text message in which he reminded her that the children were to be enrolled in school, asked her to contact him to discuss their education and expressed his concerns they were falling further behind in their education. I accept he also expressed his view that the issue needed to be sorted out and that he reminded her that, under the Orders, he had to be involved in decisions about the children’s education.[68]

   [68] Affidavit of the father filed 11 October 2016 at [102].

3. I accept that the mother did not respond to this text.

4. I accept the father’s evidence that, at some time between about early and mid-August 2013, the New South Wales Minister for Education directed the mother to enrol the children in a school other than Distance Education.[69] There is no evidence before me to suggest she complied with any such direction.

   [69] Affidavit of the father filed 11 October 2016 at [104].

5. Interchanges between the mother and Mr KK from Distance Education in August 2013 contain the mother’s expressed hope that the children (then twelve and nine years of age respectively) continue with Distance Education until at least the end of that Term. It is clear, I think, that Mr KK endeavoured to ensure that the children were participating as they should: for example, an email dated 8 August 2013 contains the mother’s expressed thanks for the legal worksheets he had sent and her assertion “that information was great for my kids as it’s helping them with their rights and responsibilities”.[70]

   [70]         Exhibit A, p 49.

Matters about B’s functioning

1. On the evidence before me, the mother seems to have arranged for B (at least) to attend on a Dr PP.  On 12 August 2013, this medical practitioner provided a Medical Certificate about B.[71] In it, she was said to have “some neurocognitive deficits, potentially associated with her immunodeficiency, chronic infections as evidenced by her pyrexia[72] of unknown origin”.

   [71]         Exhibit A, p SB10.

   [72]         “Raised body temperature; fever”.

2. Absent any evidence that B had suffered an injury of some kind, the assertion she had “some neurocognitive deficits” (that is, a reduction or impairment of cognitive function in an area of her brain) when seen by Dr PP seems to me to be inconsistent with:

   a)the May 2008 assessment of her by Mr QQ (a child educational psychologist) who, when he assessed her school readiness, concluded that, due to her verbal strengths and high achievement ability, she would definitely benefit from some form of academic stimulation and/or enrichment program at school and was likely to get bored easily if not challenged enough;[73] and

   b)her mid-year 2012 report card from CC Primary School[74] which records that, as at the midpoint of her Grade 5 year, she was proficient in all aspects of English, an excellent reader (who was capable of comprehending and responding to texts at a deep level), a gifted and expressive writer (who applied appropriate language features to different text types in order to inform, express an opinion or entertain her audience), a very attentive listener and a confident speaker; a competent mathematician who had made excellent improvements in all areas of mathematics; a child whose social development and commitment to learning were both “very good”; a child who had produced excellent results across all subject areas, had settled very well into CC and had established positive relationships with her peers; a child who  had a mature attitude in that she used her own initiative to develop work, produced some excellent independent research tasks at home and was always keen to participate in more challenging work.

   [73]         Exhibit A, p SB6.

   [74]         Exhibit A, p 45.

3. The document authored by Dr PP also recorded that the mother was concerned B may not be ready for conventional schooling, may demonstrate frustration and may “get left behind”.  This information seems to me to paint a very different picture of B’s capacities than that conveyed by both Mr QQ (albeit in 2008) and CC primary school.

4. The document authored by Dr PP also outlined that B was “at present” being successfully home-schooled. It seems to me that the most compelling conclusion is that Dr PP’ suggestion that B’s home-schooling remain “in place” until her “illness” had been “differentiated” (a process which was said to be anticipated to take approximately six months) rested completely upon an acceptance of the information conveyed solely by the mother.

5. Further, the apparent discrepancy between the mother’s recounting to Dr PP of B’s capacities and the assessment arrived at by Mr QQ (in 2008) and CC in mid-2012 of the same certainly seems to me to cast a significant shadow over the premises on which Dr PP’ recommendation rested.

6. The contents of an email sent by Mr KK on 16 August 2013[75] establishes that he was trying to follow the mother up about the children’s school-work, which she had previously told him had been sent to him. It seems a prior attempt by him to follow her up by email had been blocked or failed to send/receive. Mr KK clearly told the mother “it would be great to see evidence of [C] and [B’s] learning” and asked her to encourage them to access their portal email and the class blog.

   [75]         Exhibit A, p 50.

7. On about that very day (16 August 2013), the mother filed an application seeking the children be exempted from school attendance until 20 September 2013. The reason provided in this application was that: “children moving from Distance Ed to home school and require time to complete application process”.[76]

   [76]         Exhibit A, p SB7.

8. I consider that the contents of this application clearly establish that the mother then appreciated the difference between “Distance Education” and home-schooling. I conclude it is much more likely than not that she did so when she spoke with Dr PP. Consequently, I consider it highly likely she deliberately and falsely conveyed to that medical practitioner that B was then being “successfully home-schooled”: that is, it seems to me that the mother manipulated Dr PP (by telling him B was being home-schooled) to obtain his recommendation that B “continue” to be home-schooled and then relied on this recommendation as providing the basis for her contention that the children’s interests were best met by home-schooling.

1. She felt entirely justified in disregarding Court Orders and breaking the law to try to prevent the children from going with their father. She explained she had acted as she did at the children’s request and due to their emotional distress and trauma.

2. She said she allowed the children choice and acted on their stated wishes and feelings and did not influence their views or feelings about their father: rather, they have formed their own views based on their experience of him and his behaviour in the past. However, she acknowledged that B had access to her computer and had read some Court documents, but said this was without her knowledge and permission.

Likely effects on each child of any changes in that child’s circumstances[275]

[275] ss 60CC(3)(d) of the Act.

1. I accept Mr E’s evidence that, if the children return to live with the mother or spend unsupervised time with her, there is a very high risk she will fail to manage the process of getting them to return to their father or spend time with him. I accept his evidence to the effect that, in such a scenario, it is likely the children will express their views to her and she will use these as a reason to not support them complying with orders.

2. I accept that, before the mother absconded with the children, she had a long, established pattern of not complying with Orders which provided for the children to spend time with their father or attend Family Report appointments. I accept that the mother’s history of past behaviours is resplendent with her failure to abide the terms of orders that have not followed her expectations. I also accept that reference to her discussion with Mr E in November 2015 clearly establishes that, at that time, there was little to indicate her attitudes and parenting approach had changed.[276] I consider that there is nothing in the mother’s behaviour since her last interview by Mr E to suggest that she has undergone any change to her attitudes since then.

   [276] Family Report dated 27 November 2015 at [98].

3. I consider that, if C were to return to live with his mother, he would be exposed to an unacceptable risk of emotional harm as a consequence of exposure to her attitudes and consequent behaviours. He would be completely destabilised. I think it much more likely than not that the mother would not support him in spending any time at all with his father and that, consequently, his relationship with him would be completely fractured.

4. Whilst B is older and clearly desires to live with her mother, for the reasons expressed throughout these Reasons, I consider that a return to doing so would also re-expose her to an unacceptable risk of emotional harm as a consequence of exposure to and likely re-immersion in her mother’s attitudes and exposure to her consequent behaviours.

Family violence and family violence orders[277]

[277] ss 60CC(3)(j) and (k) of the Act.

1. As already noted, an Apprehended Violence Order has previously been made, without admissions, by consent. I accept that the father agreed to this Order on those terms on the basis that the mother contemporaneously undertook to the Court that she would provide the children to spend time with him. I accept that she failed to honour this undertaking.

2. The mother told Mr E in November 2015 that she considered the father was committing further family violence by preventing the children from having contact with their maternal grandparents.

3. In all the circumstances of this case (as outlined in these Reasons), I do not accept the contention that the father committed family violence by preventing the children from interacting with the maternal grandparents – one of whom at the very least assisted the mother to implement her plans to obtain passports for the children without the father’s knowledge and to try to remove the children from this country.

4. I generally accept Mr E’s opinion about the risk of future violence.

5. A Departmental record (being a “SDM Safety Assessment Decision Report” relating to B dated 28 October 2016) contains the assertion that “Reports received by Community services indicate that historically, Domestic Violence was prominent in the relationship”. Save for the recounting by the mother as outlined and the children to the Department (after the execution of the Recovery Order in July 2015 and after B ran away in October 2016), there is nothing in the evidence before me to support this assertion: there are no Departmental records or police reports or any other document recording any report of allegations of family violence at any time before the mother’s Application for an Apprehended Violence Order in November 2012.

Other relevant matters

1. The November 2015 Family Report contains Mr E’s assessment that the children appeared to be reasonably settled and comfortable enough living with their father. I accept this assessment of the position at that time. I also accept that, even though they then said their wishes were to return to live with their mother, their presentation and behaviours at that time indicated they were able to cope and found it acceptable living with their father.

2. I accept as more likely than not that, for C, this remains the case.

3. I also accept Mr E’s assessment that the opportunity B had, whilst living with her father, of attending school and developing peer relationships seemed to have helped her to develop more typical teenage goals and aspirations. A return to such opportunities seems to me to be highly likely to be beneficial for her into the future.

4. I also accept Mr E’s assessment that, given her then developmental stage, the father’s approach of helping B to develop her peer relationships and focus more on her own needs and interests seemed to be working vis-à-vis their relationship.

5. I note that, in the November 2015 report, Mr E opined that that, whilst it was possible B had been in contact with her mother through social media, any such contact did not appear to have impacted negatively upon her placement with her father. Again, the mother’s decision to absent herself from the trial after the end of the first day has prevented exploration of the extent to which this opinion remains apposite given the events after October 2016.

6. I accept Mr E’s assessment, as outlined in the November 2015 report, that B’s desire to return to live with her mother appeared to be based on the emotional connection and a sense of loyalty she has with her mother. I also accept his overall assessment of the relationship and interactions between the mother and the children and her likely influence of them. I accept the validity of his assessment, at that time, that whilst B had some capacity to form her own views about her own life, he considered she lacked the necessary maturity and understanding to appreciate which parent may be more capable of helping her meet her needs and achieve her own goals.

7. I also accept Mr E’s opinion about the possible emotional enmeshment between B and the mother and consider it highly likely that this has likely significantly influenced her perception that her mother has previously permitted her to choose things (such as whether she sees her father) for herself.

8. I also note Mr E’s November 2015 opinion that, as B develops more independence and, perhaps, life goals and interests contrary to those of her mother, she may have the experience of experiencing her relationship with her mother quite differently.

9. I join in Mr E’s concern that B appeared to perceive that she was responsible for her mother’s flagrant decision to disregard Court orders and attempt to flee the country when, in reality, such decisions were those of her mother.

Parental responsibility

1. When making a parenting Order, I am bound to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for major long term issues relating to them unless this presumption is rendered inapplicable.[278] The presumption is rendered inapplicable if the Court is satisfied that there are reasonable grounds to believe that either of the parents has engaged in abuse of the children or another child or family violence.[279]

   [278] s 61DA of the Act.

   [279] s 61DA(2) of the Act.

2. Given the findings I have made in relation to the mother’s behaviour, the presumption does not apply in this case. Thus, the power to make parenting orders pursuant to s 65D of the Act is “at large”, albeit subject always to each child’s best interests being the paramount consideration.[280]

   [280]        Cox & Pedrana (2013) FLC 93-537, [19]; s 60CA; s 65AA of the Act.

3. Even if the presumption did apply, the circumstances here are such that I am easily persuaded on the evidence that it is not in the children’s best interests for their parents to have equal shared parental responsibility for them.[281] A conclusion other than this would, in my view, be perverse.

The orders to be made in the children’s best interests[282]

[281] s 61DA(4) of the Act.

[282]Whether the subject of specific discussion in these Reasons or not, I have considered all of those legislative provisions required to be considered so as properly to determine the issues in this case: Banks & Banks (2015) FLC 93-637. In addition, any failure to mention specifically any particular aspect of the evidence is not demonstrative of a failure to have regard to the same. Rather, in determining those orders which, in my view, are in each child’s best interests, I have taken into consideration all of the evidence before me.

1. I consider the manner in which the mother either fuelled the children’s anxieties about their father or failed to assist them to ameliorate the same (so that they were proportionate to their experience of him) to constitute emotional abuse of the most serious kind.

2. I consider this abuse to be long-standing and deliberate.

3. There is nothing whatsoever before me to suggest that the mother’s determination to expose the children to views that are harmful to them has lessened.

4. I note Mr E’s evidence that the mother previously told him she would not abscond with the children again. However, there is simply no way of knowing whether this is an assurance that should be accepted at face value or a further deception of the same kind as that perpetrated when she consented to orders which she likely had no intention of abiding, proffered an undertaking to a Court that she had no intention of following or when she forged the father’s signature to obtain passports for the children in furtherance of her plan to remove them from Australia without his knowledge. In the absence of the opportunity to observe the mother when tested in cross-examination about her assurance to Mr E and her current attitude to the father and the children’s interactions with him, I incline to the latter view rather than the former. 

5. Whilst I have taken both children’s expressed views into account, I have particularity considered B’s expressed views, given her age. I am well aware that an order that she live with her father is completely contrary to the wishes she has most recently expressed verbally and demonstrated via her actions in leaving his home.

6. However, I note that, when speaking to Mr E in mid-2014 about having the right, as a teenager, to make her own choice, B added that: “It is a lot of responsibility”.  

7. Whilst, obviously, B has grown older since then, the extent of the responsibility remains. It is for this reason that the law requires that the determination of those parenting orders which are in any child’s best interests involve a consideration of many matters and not simply reflect the expressed views of that child – even one who is a teenager.

8. In order properly to discharge the responsibility of deciding which of her parents is better able to meet her short and long term needs, I am compelled to conclude, for the reasons expressed in these lengthy and detailed Reasons, that, despite B’s views, it is in her best interests for an order to be made for her to live with her father.

9. Given the conclusions I have expressed about the manner in which the mother approached her parenting of the children and the risk that she poses to their psychological well-being, I am easily persuaded that each child’s best interests are met by an order which requires that they both live with the father and that he is accorded sole parental responsibility for them.

10. Given the mother’s past actions, it is also in C’s best interests that an order is made for his name to be placed on the Watchlist so as to prevent any future attempt by the mother to remove him from Australia. Whilst the father asked that B’s name is also placed on the Watchlist, her age and actions in October 2016 persuade me that such an order is not in her best interests.

Should the children spend time with their mother and, if so, how?

1. My conclusion that, in her parenting of the children the mother deliberately acted in a manner that was emotionally abusive to, and harmful of them has persuaded me that, even taking into account her age and actions in October 2016, B’s best interests will be better met by ensuring that her time with her mother is supervised.

2. I note that, in his last report, Mr E opined it was highly likely that, if C saw his mother, he would ask (or perhaps beg) her to take him with her or to keep him in her care. I accept such opinion.

3. I also accept Mr E’s opinion that C’s statements to him in late 2015 about his father as “evil” (even though his more recent experience included only a complaint about the father’s poor diet and not being tidy), indicated that C was maintaining a loyalty to his mother by voicing such assertion, rather than expressing his own independent view of his father.  It seems to me to be likely that this loyalty also underpinned C’s adamant presentation that, if he was living with his mother, he would again refuse to spend time with his father.

4. Mr E considered C somewhat emotionally immature and opined that he may still be struggling internally with how to maintain his relationship and loyalty with his mother whilst living with his father. I accept this assessment and opinion. I also accept Mr E’s assessment of C as extremely vulnerable to any negativity from his mother if he spends time or communicates with her. I accept Mr E’s opinion that C remains extremely vulnerable to emotional manipulation by the mother, including her being distressed or emotional when with him.

5. Given this, it may well have been concluded that the risk to C’s emotional well-being from time or communication with his mother is such that it is not in his best interests for this to occur.

6. However, Mr E’s evidence was generally supportive of affording C the opportunity to interact with his mother, provided that their interaction is closely monitored.

7. I record that the thrust of Mr E’s reasoning was to the effect that, as C appeared still to idealise his mother, there is a future danger he may run away to her in the future unless he is able to learn for himself, via monitored interaction with her, that she is not perfect and has the same ‘feet of clay’ as all human beings.

8. Mr E noted that part of the process of growing up (particularly through the teenage years) is learning about relationships and gradually realising more and more of the imperfections of one’s parents; he thought that having the opportunity to see his mother may result in C challenging his unrealistic and idealised view of her and that, whilst this may be upsetting for C, it would enable him to make a decision about things like his relationship with his father (based on his own experience rather than just believing his mother) and his relationship with his mother (based on reality rather than her influence).

9. As I understood his evidence, Mr E also thought C needed to have the opportunity to spend time with his mother because he missed her and wanted to know how she was.

10. I also note that C himself has raised that he wants to ask his mother why the events of his life to date have unfolded as they have and to seek to have her provide him with an answer to his “why us?” query.

11. I completely accept, though, that any unmanaged exposure of C to his mother (particularly initially) would likely reinforce his existing perceptions of her and his relationship with her. As a result, I accept Mr E’s evidence to the effect that C’s time with his mother needs to be overseen by an appropriately qualified and experienced practitioner so as to guard against the very real risk that their interaction will undermine his current stability and strengthening relationship with his father.

12. I note that Mr E recommended that both children spend time with their mother once per month for two hours, with such time to be under the supervision of a Family Consultant. He said he had made this recommendation because he has assessed this family’s problems, which he described as ‘very severe’, as being beyond the scope of most Contact Centres. 

13. Given he was unsure about how the children would react to such an Order, Mr E also thought the supervising Family Consultant should be able to withdraw the time if it became too problematic for the children: for example, if C’s became too upset or his behaviour deteriorated.  I accept his opinion in this respect.

14. Mr E was also very clear in saying that clear rules about the scope of C’s interaction with his mother are needed: for example, there should be no discussion about Court topics and no denigration of the father. I accept this completely.

15. Mr E also thought C could be told that these were the rules which had to be followed so that he could spend time with his mother. He opined that, if this occurred and the mother failed to comply with these strictures, C would see this for himself: that is, he would have the experience of exposure to such behaviour (if it occurred) rather than being reliant on his attempts to work out which parent was responsible for the lacuna in his time with his mother.

16. As I understood his reasoning, Mr E suggested that, if an independent person (namely, the supervisor) told C about the rules associated with them spending time together and that the opportunity to spend time together had been created, any failure by the mother to avail herself of such opportunity could be explained to him by that person rather than by the father.

17. Given the history of this matter as outlined in these Reasons, C’s age and his desire to understand “why us”, the opportunity for an independent person to explain what happens around his supervised time with his mother seems to me to be likely to be in his best interests.

18. Whilst Mr E’s opinion was that the supervised time between the children and their mother ought best occur under the supervision of a Family Consultant on an ongoing basis, I am not persuaded that such order is appropriate.

19. Rather, I consider that, after the initial sessions have occurred under the supervision of a Family Consultant, time can occur at a Contact Centre nominated by the father.  So that any Centre and supervisor can understand the importance of supervision, the father will be permitted to provide the Centre with a copy of these Reasons to assist in the determination of whether a particular Centre considers it has the resources and sufficiently qualified supervisors to take on this task. 

20. Given the mother’s history of failing to avail herself of the opportunity to spend time with the children under supervision, I consider it appropriate that the operation of that part of the orders which provides for this to occur be suspended if the mother fails to attend on two occasions and/or fails to complete an Intake Session (however the same is described by the Contact Centre selected by the father) as required by the Contact Centre.

21. I have concluded that the terms of the restraints which will be imposed on each parent by the orders made are appropriate and in the children’s best interests in the circumstances of this particular case: such orders are, in my view, protective of the children.

1. Whilst the father sought that the parents share in the cost of the sessions of supervised time, I consider it appropriate that the father be responsible for the same. 

2. For the reasons expressed, I make orders in terms of those set out at the commencement of these Reasons.

I certify that the preceding nine hundred and eighteen (918) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 January 2018.

Associate:       

Date:              22 January 2018