Vukovic and Vukovic

FAMILY COURT OF AUSTRALIA

VUKOVIC & VUKOVIC

[2007] FamCA 395

FAMILY LAW - CHILDREN - Best interests - With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT:

Mrs Vukovic

RESPONDENT:

Mr Vukovic

INDEPENDENT CHILDREN’S LAWYER:

Mr Brian Samuels

FILE NUMBER:

SYF

4688

2003

DATE DELIVERED:

4 May 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

19-21 February 2007;
2 April 2007; 13 April 2007; 20 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shoebridge

SOLICITOR FOR THE APPLICANT:

Taylor Scott

COUNSEL FOR THE RESPONDENT:

Ms Lawson

SOLICITOR FOR THE RESPONDENT:

Levy Partners

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Ms Falloon

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Brian Samuels & Associates

Orders

All previous parenting orders in respect of the children the daughter born in July 1996 (“[daughter]”) and the son born in July 1999 (“[son]”), apart from the order made on 13 April 2007 in favour of the paternal grandmother, be discharged.
Parental responsibility for the children the daughter and son shall be shared by the parents as follows:-
2.1.The mother shall have sole responsibility for decisions about:
2.1.1.the day to day care of the children;
2.1.2.the children’s school activities and their extra-curricular activities;
2.1.3.routine dental and medical treatment for the children;
2.1.4.where the children will live;
2.1.5.travel for the children within Australia.
2.2.The parents shall share responsibility for decisions about:
2.2.1.elective medical and dental treatment for the children;
2.2.2.schools to be attended by the children;
2.2.3.travel proposed for the children outside Australia;
and in this regard the parents shall consult with each other in relation to the decision to be made, and make a genuine effort to come to a joint decision about that issue but in the event that they are unable to come to a joint decision, then the mother’s view as to the decision which is in the best interests of the children shall prevail.
The appointment of the Independent Children's Lawyer shall continue until the Independent Children's Lawyer seeks and is granted leave for the appointment to cease.
The Independent Children's Lawyer shall provide a copy of these orders to the father’s treating doctor and mental health case worker.
The children shall spend time with their father once in each calendar month for not less than two hours at a contact centre to be nominated by the Independent Children's Lawyer who shall liaise with the parties and the staff at the contact centre to facilitate the dates and times for this contact.
From the date of these orders the father may communicate with both of the children as follows:-
6.1.each Tuesday unless the parties agree on alternative day, by way of one telephone call made by the father between 4.30pm and 5.30pm, such call not to exceed 40 minutes duration;
6.2.by e-mail to an e-mail address of the mother;
6.3.by way of cards and letters;
6.4.by way of a sound recording device;
6.5.by webcam.
The father shall be at liberty to provide to the children a sound recording device on which they can record messages or musical performances for him and the mother shall forward any recordings made by the children to the father in a timely manner.
That each party is to do all things necessary to install a webcam within 6 months of the making of these orders after which time, the father can elect to communication with the children via webcam and each party pay the cost necessary in respect of installation of the necessary equipment in their own home.
The mother shall ensure that the children are able to communicate by telephone with the father on their birthdays, on his birthday and on Father’s Day.
The father shall not take any non-prescribed drugs, or drink any alcohol, in the 48 hours immediately preceding any time he spends with the children pursuant to these orders, or during those times.
Neither party shall say unpleasant or inappropriate things about the other in the presence or hearing of the children or permit any other person to do so.
Each party shall advise the other within 24 hours of any change of his or her address.
The Independent Children's Lawyer shall make inquiries about facilitating arrangements for the children to receive support from the Association of Relatives and Friends of the Mentally Ill (“ARAFMI”) or such other similar organisation as may be recommended by PANOC.
The mother shall do all things necessary on her part to ensure that the father is able to receive from the children’s school order forms for the children’s school photos and copies of their school records, the father to pay any resulting expenses.
The father shall be at liberty to communicate with the children’s school so that he can be informed about the children’s progress and welfare at school.
Liberty be granted to the parties and the Independent Children's Lawyer to re-list the matter on seven (7) days notice.
Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the children and that until further order that Judge be Justice Watts, if he is reasonably available.
Pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATIONS

A finding has been made that the father’s mother is not a suitable supervisor.
Dr W indicated that if an appropriate supervisor was available the children could spend time of up to one week at T with their father.
The father, at the time of this hearing, was unable to suggest to the Court any appropriate supervisor.
The father’s nomination of an appropriate supervisor would be a significant and substantial change to the circumstances that he was in at the date of this hearing.
In the event that the father in the future applies for more extensive face to face time with the children on the basis that an appropriate supervisor was available, the Independent Children's Lawyer proposes an order that, within 28 days of the date of these orders the father shall forthwith authorise all mental health professionals treating him to provide information on request to the Independent Children's Lawyer or to the mother about the following matters in relation to the father’s mental health and treatment:
23.1.The frequency of his attendances on any doctors or case manager at mental health centres;
23.2.the date of his most recent assessment;
23.3.the assessment of his mental health status at his most recent presentation;
23.4.any changes in his mental health status, and the likely effect of those changes on his behaviour; if any;
23.5.their opinion as to whether the father is currently adhering to prescribed anti-psychotic medication;
23.6.any aspect of the father’s current presentation which could result in risk to the children were they to spend time with him.
In the event an order in the terms of notation 24 is considered in the future, further evidence will be needed as to the arrangements by which the mental health professionals will provide the information.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4688 of 2003

Mrs Vukovic

Applicant

And

Mr Vukovic

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This case is about what time the daughter, born in July 1996 (currently aged 10) and the son, born in July 1999 (currently aged 7) will have with their father and what communication they will have with him.

SHORT HISTORY

In August 1966 Mr A, the mother’s defacto partner was born (he is currently aged 40 years).
The father was born in August 1966 (currently aged 40).
The mother was born in January 1971 (currently aged 36).
In 1990 C was born. C is the child of Mr A. C lives with his mother but spends most fortnightly weekends in the applicant mother’s household.
In September 1993 J was born. J is the child of Mr A. J is a member of the mother’s household.
The parties commenced a relationship together in 1994.
The parties married in May 1995.
In October 1995 B was born. B is the child of Mr A. B is a member of the mother’s household.
The parties’ daughter was born in July 1996.
The parties’ son was born in July 1999.
The parties separated in September 2002 and the father left the central coast area and moved to T.
The father travelled to the former Yugoslavia in the early part of 2003.
On 18 July 2003 it is alleged that an incident took place involving the father where the father held the maternal grandmother and the children with a gun. These allegations will be dealt with later in these reasons for judgment.
During submissions I asked the legal representatives as to what evidence I had about the children spending time with their father between the incident in July 2003 and when orders were made in November 2004. The legal representatives were not able to inform me as to what time the children spent with their father in that period and the evidence is scant in that regard.
On 5 November 2004 orders were made at W Local Court by consent. The orders provided that the children live with the mother and that the father spend time with the children by mutual agreement upon their father giving the mother 24 hours notice and only if the mother was satisfied that the father was appropriately medicated. The mother concedes that after orders were made in November 2004 the father spent unsupervised time with the children and that included an occasion in the 2004/05 Christmas school holidays where the father also had Mr A’s children with him.
Between November 2004 and April 2006 the children spent time with their father for half the school holidays.
On 20 March 2005 the husband was admitted to hospital following a suicide gesture where he had distilled nicotine and ingested half of it.
On 15 August 2005 orders were made in M Local Court by consent. They provided that the paternal grandmother have block holiday contact. This was to be for one week holidays in any holiday the children were not spending time with their father. It was a condition that the father not be present unless the mother had 24 hours notice and was satisfied that the father was appropriately medicated.
At Christmas 2005 the mother alleged that the father shaved the son’s long blonde hair.
In April 2006 there was a series of events which will be described and further explored later in these reasons for judgment. The children were with their father during the Easter school holidays. The father had a fight with his mother and took the children to T on 19 April 2006. On 21 April 2006 the mother contacted the police and attempted to contact mental health services. The police took the father to T Hospital for assessment. He was scheduled.
The father has had no further face to face time with the children (other than the interview with Dr W for the report in this matter, since that time).
The father was discharged from T Hospital in May 2006.
The mother alleges that between May and October 2006 the father made regular distressing, disturbing and inappropriate telephone calls to the children. On 16 October 2006 the mother sent a letter informing the lawyers for the father that she was terminating any further telephone communication between the father and the children.
The court expert, Dr W, conducted interviews with the parties and the children on 26 September 2006.
On 31 October 2006 upon application by the mother, Le Poer Trench J suspended telephone communication between the children and their father.
On 7 November 2006 interim orders were made that each party do all things necessary to attend an intake interview at C Contact Centre to facilitate the father spending time with the children. The father undertook an intake interview that day. The mother didn’t do anything about an intake interview until early January. Counsel for the father estimated that it was 71 days before the mother did anything and nobody seemed to disagree with that. 71 days would take the period of time through to the middle of January. The mother had an appointment on 17 January to see the service. I am satisfied that the mother had contacted the service in early January in order to make the booking for the intake interview.
Exhibit A is a letter from C Contact Centre dated 14 February 2007 which attaches letters written to the father on 8 February 2007 and 13 February 2007.
Exhibit A discloses that the father concluded an intake interview on 9 November 2006 (having booked it on 7 November 2006). At the interview he signed the necessary documentation and paid the administration fee. The mother had originally been booked to do a telephone intake on 17 January 2007 but she had not received the forms by that time and a further intake assessment was booked and completed on 7 February 2007.
The first scheduled date for contact to take place was Sunday 25 February 2007 for two hours. There were five further appointments that have been made on a monthly basis ending on Sunday 22 July.
There is currently an order put in place by Le Poer Trench J, suspending telephone contact.

THE APPLICATIONS

Mother

The applicant mother by application filed on 22 June 2006 seeks orders as follows:-
1.That the orders made at the [S] Local Court on 15 August 2005 be dismissed.
2.That the orders made by the Family Court Sydney on 5 November 2004 be dismissed.
3.That the children of the marriage, [the daughter] DOB: […] July 1996 and [the son] DOB: […] July 1999 (“the children”) live with the mother.
4.That both parents share the responsibility of making decisions regarding the long term care, welfare and development of the children.
5.As far as practicable, time spent with the father will be supervised by a Family and Child Counsellor of Relationships Australia at the Children’s Contact Centre, Cubby House, [G].
6.That the children are to have supervised time with the father by contacting Relationships Australia to book in advance a schedule of times which are subject to the approval of the applicant mother.
7.The applicant mother is to drop off and pick up the children at the commencement and conclusion of the supervised time spent with the Father.
8.That the children are to have supervised time with the paternal grandmother by contacting Relationships Australia to book in advance a schedule of times when time is not being exercised with the father which are subject to the approval of the applicant mother.
9. The applicant mother is to drop off and pick up the children at the commencement and conclusion of the supervised time spent with the paternal grandmother.

Father

The father originally sought orders in the following terms:-
1.That the children spend time with the father for 9 days in the mid year school holidays.
2.That the children spend time with the father for one half of the school holiday period by agreement but failing agreement, for the first half in even numbered years and for the second half in odd numbered years.
3.That the children spend time with the father once per month for a period of 6 hours.
Originally he was content in the alternative for his mother to supervise contact.
Counsel for the father on the final morning provided a set of proposed orders which were the father’s most recent instructions.
Those orders were in the following terms:
1.That the children [the daughter] born [in] July 1996 and [the son] born [in] July 1999 live with the mother, […].
2.That the parents have equal shared parental responsibility for the children.
3.That subject to orders 13, 14 and 15, the children spend time with the father as agreed between the parties, but failing agreement as follows:-
(a)     Each year during the school holidays save for one week in the Christmas holidays when the children shall spend time with their mother.
(b)     For a period of three weeks from the date of the making of these orders.
4.That provided that the father gives the mother two days notice in writing, he may spend time with the children, in Sydney, for no more than three weekends during each school term as follows:-
(a)     From after school on Friday until the commencement of school on the following Monday;
(b)     For the purposes of changeover, the father shall collect the children and return the children to school.
5.For the purpose of the father spending time with the said children in order 3, and depending on whether the father elects to spend time with the children in Sydney or in [T], the mother or her nominee shall deliver the children to Sydney Domestic Airport at the commencement of the period and the father or his nominee shall return the children to the nearest domestic airport to [T] at the conclusion of the period:
(a)     The father is to notify the mother in writing three weeks prior to spending time with the children, whether he elects to spend time with them in Sydney or in [T].
6.For the purpose of the father spending time with the said children in order 3:
(a)     The mother shall book and pay for all airfares for the children’s travel to and from spending time with the father;
(b)     Each party shall do all acts and things and sign all documents necessary to enable the children to travel to and from Sydney for the purposes of the children spending time with their father as set out in order 3 above, including doing all things necessary for the children to travel as unaccompanied minors.
7.That for the purposes of the father spending time with the children as set out in order 3 above, the party who is required to book and pay for airfares as set out in order 5, shall provide the other party with the children’s flight details between Sydney and [T] (both ways) by no later than 14 days before the departure date.
8.The children are to have communication with their father according to both the father and the children’s wishes.
9.For the purpose order 8, the mother is to refrain from listening to children’s telephone conversations with the father.
10.For the purpose of order 8, the mother is to ensure that the children have a mobile phone and it is switched on at all times.
11.That each party is to do all things necessary to install a webcam within 6 months of the making of these orders after which time, the father can elect to communication with the children as set out in order 8 via webcam.
12.That in addition, the mother is to hand to the children unopened all letters, mail and any items to the children from the father.
13.That the father is to continue to consult with health care professionals in respect of his mental health and to obey all reasonable directions.
14.The father is to consult with his health care professionals in respect of his mental health in the week prior to spending time with the children.
15.That the father comply with any medication as prescribed by his health care professionals in respect of his mental health.
16.That each party shall refrain from denigrating the other party, or permit any other person to denigrate the other party in the presence of the children.
17.That the parties shall not discuss any court proceedings relating to either party with the children or show them any documents relating to the court proceedings.
18.That the mother refrain from discussing the father’s mental health with the children, or permit any other non-health care professional to discuss the father’s mental health with the children.
19.That in the case of a medical emergency in respect of the children, the party who has the children in their care is to notify the other party immediately.
20.That both parties sign all documents and do all things necessary to cause the children’s schools to make available to each of the parties all notices, school photo order forms and reports that are normally sent or given to parents of children attending the said school.
21.That neither party shall remove the child, or cause the child to be removed, from the Commonwealth of Australia without the written permission of the other party or an order of the Court.
22.That without admissions, neither party shall use physical punishment against the child or permit physical punishment to be used against the child whilst the child is in their respective care.

Notation
23.That the parental grandmother shall be entitled to spend time with the children when the children are in the care of the father or as otherwise agreed between the parties.

What is notable in those orders is that the father no longer proposes, as an alternative position, that his mother act as a supervisor of the children’s time with him. His position is that the children’s time with him should be unsupervised and that guarantees in relation to his mental health should be found in a regime whereby he sees his health professionals a week before contact takes place (see proposed final order 14). He opposes any institutionalised form of supervision and does not want contact to take place at his mother’s home. He wants both the children to have a mobile telephone so that he can contact them and they can contact him at any time. He proposes a webcam facility be set up between him and the children. Letters and mail are to go to the children on an unrestricted basis (although in oral submissions Counsel for the father suggested that it might be possible that they could be filtered by the Independent Children's Lawyer; compare final orders 8-10 as sought). Some arrangements, such as airflights (orders 5 and 6) were not the subject of any evidence during the hearing.

Independent Children's Lawyer

At the commencement of the hearing the Independent Children's Lawyer did not take a position as to what orders should be made.
The Independent Children's Lawyer during oral submissions on 13 April 2007, without reducing it to writing, sought orders to the following effect:
39.1.That between April 2007 and December 2007 the children see their father once a month at Central West Contact Centre.
39.2.That in school holidays commencing the Christmas school holidays 2007 and 2008 and each term holiday in 2008, there be one period where the children would spend two days and two nights at the home of the paternal grandmother in Sydney with the father present.
39.3.That in school holidays December 2008 and onwards, for each school holidays thereafter the children spend time in the paternal grandmother’s home in Sydney on two days and two nights on two separate occasions in each holidays.
39.4.That communication take place by telephone once a week for no longer than 20 minutes for each child, not to start after 7pm.
39.5.That there be no overnight contact until there is a further assessment by Dr W. It was suggested that there must be some further report prepared by Dr W at the end of this year.
39.6.Her application was that the children’s telephone calls with their father not be monitored by the mother.
39.7.That there be provision for the sending of letters and cards and for email communication. The email communication could be monitored because it is more susceptible to having that happen.
39.8.No arrangement in relation to webcam. She said the proposals in relation to that were inclusive.
39.9.A provision that the children telephone their father on their birthdays, Father’s day and his birthday.
39.10.There be an order to discourage derisive conversations.
39.11.There also be the ability for the children to create voice files to forward to their father.
39.12.That contact be supervised at all times by the paternal grandmother.
39.13.That for 48 hours before the father spending time with the children that he not consume any drugs or alcohol apart from prescription drugs.
39.14.That the children go to a support group.
39.15.That the mother obtain school photographs and reports of the children about their progress and welfare and forward them to the father and the father pay for that.
39.16.That the father be consulted in relation to decisions in respect of the children’s long term care, welfare and development but otherwise the mother have sole parental responsibility in relation to making those decision.
39.17.That the Independent Children's Lawyer be authorised to provide a copy of the orders made to the father’s treating doctor and mental health case worker.
39.18.That the father immediately authorise all mental health professionals treating him to provide information to the Independent Children's Lawyer and the mother about:-
39.18.1.The frequency of his attendances on his doctor and/or case manager;
39.18.2.The date of his most recent assessment;
39.18.3.Assessment of the father’s mental health status at his most recent presentation;
39.18.4.Any changes in the father’s mental health status, and opinion as to the effect on his behaviour of those changes;
39.18.5.Opinion as to whether the father is currently adhering to prescribed anti psychotic medication;
39.18.6.Any aspect of the father’s current presentation which would mean risk to the children were they to spend time with him.
39.19.The appointment of the Independent Children's Lawyer to continue with leave to apply to have that order discharged at any time.
On 17 April the Independent Children's Lawyer had reconsidered the orders sought and had reduced them to writing in the following form:
1.That all previous parenting orders in respect to the children [the daughter] born [in] July 1996 (“[Daughter]”) and [the son] born 26 July 1999 (“[Son]”) be discharged.
2.That parental responsibility for the children [the daughter] and [son] shall be shared by the parents as follows:-
2.1.    The mother shall have sole responsibility for decisions about:
2.1.1.the day to day care of the children;
2.1.2.the children’s school activities and their extra-curricular activities;
2.1.3.routine dental and medical treatment for the children;
2.1.4.where the children will live;
2.1.5.travel for the children within Australia.
2.2.   The parents shall share responsibility for decisions about:
2.2.1.elective medical and dental treatment for the children;
2.2.2.schools to be attended by the children;
2.2.3.travel proposed for the children outside Australia;
and in this regard the parents shall consult with each other in relation to the decision to be made, and make a genuine effort to come to a joint decision about that issue but in the event that they are unable to come to a joint decision, then the mother’s view as to the decision which is in the best interests of the children shall prevail.
3.The appointment of the Independent Children's Lawyer shall continue until the Independent Children's Lawyer seeks and is granted leave for the appointment to cease.
4.The Independent Children's Lawyer shall provide a copy of these orders to the father’s treating doctor and mental health case worker.
5.Within 28 days of the date of these orders the father shall forthwith authorise all mental health professionals treating him to provide information on request to the Independent Children's Lawyer or to the mother about the following matters in relation to the father’s mental health and treatment:
5.1.   The frequency of his attendances on doctor or case manager at mental health centre;
5.2.   the date of most recent assessment;
5.3.   the assessment of his mental health status at his most recent presentation;
5.4.   any changes in his mental health status, and the likely effect of those changes on his behaviour; if any;
5.5.   their opinion as to whether the father is currently adhering to prescribed anti-psychotic medication;
5.6.   any aspect of the father’s current presentation which could result in risk to the children were they to spend time with him.
6.Provided that the father complies with order 5 above, the children shall spend time with him once in each calendar month up to and including December 2007, for not less than two hours at a contact centre.
7.       Provided that the father complies with orders 5 and 6 above, and conditional upon his compliance, the children shall spend time with the father:
7.1.   from 4pm on the first Tuesday in January 2008 until 4pm on the Thursday following, unless the mother and the paternal grandmother otherwise agree;
7.2.   in each subsequent school term holiday period at the home of the paternal grandparents, from noon on the first Tuesday until 4pm on the first Thursday of the school holiday period, unless the mother and the paternal grandmother otherwise agree;
7.3.   in each long school holiday period, commencing with the December 2008-January 2009 holidays, for two non-consecutive periods of three days and two nights, each periods to commence at noon on the first day and conclude at 4pm on the third day, the dates to be agreed between the mother and the paternal grandmother.
8.The paternal grandmother shall be present at all times when the father and the children are spending time together pursuant to order 7 above.
9.During the periods the children spend time with the father pursuant to order 7 above, orders for the children to otherwise spend time with the paternal grandmother shall be suspended.
10.The mother shall be at liberty to communicate with the children by telephone once in each 24 hour period that they are spending time at the home of the paternal grandparents.
11.The paternal grandmother shall ensure that the children are able to telephone the mother at any time when they are at the home of the paternal grandparents.
12.For the purposes of order 7 above, the mother shall deliver the children to the paternal grandparents’ home and the paternal grandmother shall return the children to the mother’s home.
13.From the date of these orders the father may communicate with both of the children as follows:-
13.1.   each Wednesday unless the parties agree on alternative day, by way of one telephone call made by the father at 7pm, such call not to exceed 30 minutes duration, and the mother shall provide privacy for the children to speak with the father during those calls;
13.2.   by e-mail to an e-mail address of the mother or maternal grandmother;
13.3.   by way of cards and letters.
14.The father shall be at liberty to provide to the children a sound recording device on which they can record messages or musical performances for him and the mother shall forward any recordings made by the children to the father in a timely manner.
15.The mother shall ensure that the children are able to communicate by telephone with the father on their birthdays, on his birthday and on Father’s Day.
16.The father shall not take any non-prescribed drugs, or drink any alcohol, in the 48 hours immediately preceding any time he spends with the children pursuant to these orders, or during those times.
17.Neither party shall denigrate the other in presence or hearing of the children or permit any other person to do so.
18.Each party shall advise the other within 24 hours of any change of his or her address.
19.The mother shall ensure that the children receive support from the Association of Relatives and Friends of the Mentally Ill (“ARAFMI”) or such other similar organisation as may be recommended by PANOC.
20.The mother shall do all things necessary on her part to ensure that the father is able to receive from the children’s school order forms for the children’s school photos and copies of their school records, the father to pay any resulting expenses.
21.The father shall be at liberty to communicate with the children’s school so that he can be informed about the children’s progress and welfare at school.
22.Liberty to the parties and the Independent Children's Lawyer to re-list the matter on three days notice.
Counsel for the mother indicated that the mother would not oppose an order in relation to parental responsibility in the form proposed by the Independent Children's Lawyer (order 2). Orders 3, 4, 5, 6, 7, 8, 9, 11, 12, 21 and 22, as proposed by the Independent Children's Lawyer, were opposed by the mother. Order 10 was not opposed, but would not be required in the arrangements proposed by the mother. In respect of order 13, the mother wants that to take place on Tuesday between 4.30 and 5.30pm. The mother opposes the Independent Children's Lawyer’s proposal that the mother provide privacy for the children when they are speaking with their father during telephone calls. The mother does not oppose orders 14 to 20 as proposed by the Independent Children's Lawyer.
After the father had indicated that he wasn’t going to personally attend the hearing further, an application was made by the paternal grandmother, for leave to intervene in the proceedings and for her to be able to make an application that the children spend time with her for five weeks a year during school holidays. That application for leave was opposed.
After discussions between the parties the matter settled and I made orders in the following terms:-
1.Leave be granted to the paternal grandmother […] to become a party to the proceedings.
2.The children [the daughter] (born [in] July 1996) and [the son] (born [in] July 1999) spend time with their paternal grandmother from 3pm to 6pm on the last Sunday of each alternate month at [Q] Shopping Centre in Sydney commencing 29 April 2007.
3.The mother be entitled to be present at all times during that period.
4.The children spend time with their paternal grandmother at any other time that the mother and paternal grandmother agree.
5.The father be prohibited from being present during these times the children spend with the paternal grandmother.
6.The children shall have telephone communication with their paternal grandmother each fortnight on Wednesdays between 4.30pm and 5pm commencing 18 April 2007.

CREDIT

Mother

Whilst the mother on a number of occasions gave long indirect answers to questions she was asked in cross examination, she did on the whole respond in a candid way to the questions that were asked of her.
I feel that I can confidently rely upon the evidence that she has given.

Father

I was not confident I could rely on the father’s evidence. During his evidence he made a number of grandiose statements which I refer to later. Counsel for the mother made the point that the father had provided no explanation as to why he did not attend the last two days of the hearing.
I do not accept the father’s evidence that he did not send the emails in April 2003 that are referred to below. During cross examination the father made an absolute statement that he did not drink. He said that once every six months he would do a batch of liquor on his still and that was for the purposes of providing liquor for women who came to cocktail parties that he held. He then however modified his statement in relation to absolute abstinence to be one standard drink every couple of months.

Father’s non appearance on the last two days of the hearing

The father did not personally attend the hearing on 13 April or 20 April. His Counsel and instructing solicitor continued to appear. They were unable to obtain instructions from the father in relation to the supplementary material that had been served on the father. The father’s position was that he didn’t want to participate personally further in the hearing but he wished the hearing proceed on the basis of the information which he had already provided to the court.
Where the evidence of the mother and father conflict, I prefer the mother’s evidence.

THE APRIL 2003 EMAILS

Exhibit 2 is two emails sent on 8 April 2003 and 9 April 2003 by the father to the maternal grandmother.
The emails contain what appear to be many delusional thoughts. They were sent by the father to the mother-in-law when the father was overseas. It appears the father was living in a war zone at the time he wrote them. The emails contain serious threats. In the first the father writes about the mother:-
“when I get back im probably going to give her the hiding of her life but if I dont get that chance my friends are going to have a ball with her thats a guarantee.”
And a little later he writes:
“what the hell makes her so untouchable to my crew I have no idea and im definite she has even less im sorry to say but I gladly die for my cause I wonder how many other people are going to feel that way because I wont even bat an eyelid cause ill find peace in dying shed really want to start thinking about the way I come home from a shoot out and ask herself would she have that smile on her face after being shot at by machine guns crazy maybe conected you can get you life on...you see there is two ways you could think of this letter evidence or a death warrant cause as soon as you give it to someone there is always the chance that I might not be as crazy as I sound just like playing russian roulette but instead of a gun I am using a bomb to make sure we all go together, so if you are any smarter than stupid imbisile you will realise by now that threatening me is just threatening yourself.”
In the second email the father says amongst other things:
“I am afraid by taking my children and I mean mine and mine alone, you have just opened the gates of HELL which only I can close...every euro I earn now goes towards the very people that will carry out my final wishes, so you see now I truly live for War.”
The contents of exhibit 2 are consistent with and lend weight to the version that the maternal grandmother gives of the events of 18 July 2003 (see below).

THE INCIDENT ON 18 JULY 2003

Exhibit ICL1 is a number of pages of records produced by the NSW Police. Event reference E18260877 in a report dated 18 July 2003, includes the following entry:-
“On 18 July 2003 the father and mother were at [O] Local Court on an application for an AVO. The mother was the person in need of protection from the father. Police spoke to the father who appeared to be emotionally unstable, switching between moods of despair, anger and agitation. The mother was in the safe room with her father and friend. The Magistrate granted an interim order for the protection of the mother....this order is enforceable until the hearing on 12 August 2003. Whilst in the court the mother made application for a recovery order for the two children. This order was also granted by the Magistrate. About 2.15pm the mother attended [O]Police Station in relation to the recovery order. Police from the DAR team attended [O] Police Station. Whilst taking a statement from the mother, the mother’s mobile phone rang. It was the mother’s mother stating that she was at the father’s house and that the father had a gun and was holding her and the children hostage at his house. There were several more phone calls made between the mother and her mother. Information from the mother’s mother revealed that the father was in possession of a gun. The father had also rang [K] Police Station stating that he was going to kill himself. During one of the telephone calls the mother’s mobile phone was handed to the police to hear what was occurring at the father’s address at [V]. The police heard the father say “you tell the kids why I killed myself” or words to that effect. The father was yelling this from the background. The mother’s mother and the children could be heard crying over the telephone. Police then gathered at [O] Police Station for a briefing. Inspector [K] organised SPG, and negotiators to meet at the command post. Whilst at the police station Inspector [K] spoke to the mother’s mother over the telephone and shortly after the father released the mother’s mother and the children. They attended [O] Police Station. All police then left [O] Police Station and formed a perimeter around the father’s address. Utilising negotiators and Inspector [K] it was established that the father appeared to have left the premises with the mother’s sister. It is unknown how this occurred due to the house being surrounded by the police. After extensive inquiries with the mother it was established that the father was possibly with the mother’s sister. After a broadcast of the mother’s sister’s vehicle, police located the father and the mother’s sister about one kilometre away from the father’s residence. The father and the mother’s sister were arrested. An extensive search of the mother’s sister’s vehicle revealed no weapon located. Inspector [K] advised that the mother’s sister could be released from custody. The father was transported to [D] for Mental Health Issues. The father was later released after it was established he has no mental health issues. Police escorted the father to [D], informed him of the conditions of the interim AVO prior to him being released. The father signed an official police statement acknowledging the conditions of the interim AVO. There were no injuries to any person involved. Inspector [K] completed a SITREP. There were no charges because of the following reasons:
1.The father was at court but did not receive a copy of the interim order made against him;
2.The DVLO stated that the orders were not read out to the father and orders were changed from original paper work served on father;
3.No weapon was located on the father;
4.No statement could be obtained from the mother’s mother due to her state after the incident. The mother’s mother was taken to her local doctor after the incident occurred;
5.Partial statements were obtained from the mother about breach of interim AVO but no prima facie case was established;
6.The mother’s sister was allowed to leave after being arrested by Inspector [K].

Counsel for the father said I should put little weight on the statement made by Senior Constable S on 18 July 2003. That COPS record was tendered in evidence by consent. It was open to Counsel for the father to call Senior Constable S to test the statement that she made. I treat the statement as an objective contemporaneous record. It contains three important pieces of objective information about the father’s behaviour on 18 July 2006 which were directly observed by police:-
56.1.that the police spoke to the father who appeared to be emotionally unstable, switching between moods of despair, anger and agitation;
56.2.That the father rang K Police Station stating that he was going to kill himself;
56.3.That during a telephone conversation between the father and the mother, the mother gave police her mobile and the police heard the father say “you tell the kids why I killed myself” or words to that effect.
The police attended the home of the father on 25 July 2003. An entry in ICL1 on that day records that a search of the father’s premises located one samurai sword, a Hitler youth knife, a black pocket knife and two plastic toy/replica handguns. No firearms were relocated. “Upon speaking with [the father], it was agreed that considering the current high risk DV situation and psychological state that [the father] finds himself in, these items are best not to be in his possession. [The father] indicated that he did not wish to recover these items at a later date”.
Whilst the father had a replica pistol in 1985 he said that what was recovered by the police and what was described by the police as replica pistols was one water pistol and a toy cap gun.
The father in cross examination on the third day indicated that there might have been a toy pistol or a $2.00 cap gun as well as numerous toy guns in the house on the day of the 2003 incident.
The mother gave evidence that at some point between the birth of the daughter and the birth of the son the father had had a sawn off shotgun which he had handed into police.
She also said that at some point during the marriage the father had had a 25cm pump action hand gun but she couldn’t remember when she last saw it. She did not recall the father disposing of it whilst they were together.

[The maternal grandmother’s] evidence about 18 July 2007

On the first day of the hearing I raised with Counsel for the mother the lack of direct evidence as to what had happened in the father’s home on 18 July 2003. As a result the mother requested that her mother, who was in the home at the time, provide evidence and I granted leave for her to file an affidavit.
The maternal grandmother’s evidence is that on a day in 2003 she was informed by her daughter that the father had told her he wasn’t going to give the children back. She informed her daughter that she was going to go over to the father’s home. She was of the opinion that she could get the children back. She said she had always kept in contact with the father and got on well with him. She was not asked about whether the emails of 8 and 9 April 2003 had effected this in any way. At the time of this incident the daughter was 7 years of age and the son was 4 years old.
Because of the serious nature of the incident and the importance of her evidence I set out in full what the maternal grandmother says in her affidavit:-
“I went to the house and walked in. He was in the lounge room with the children. [The son] was watching a video. He we [sic] very young and didn’t seem aware of what was going on.
[The father] was red in the face and he was screaming:
‘No one is going to have my children’.
He kept repeating words like that and saying to the children:
‘You’re staying with dad. That bitch is not going to get you’.
He also said:
‘It’s all [Mr A’s] fault’.
I said:
‘Come and sit down and we’ll try and talk’.
He said:
‘I know the police will come. They already have the place surrounded’.
He then went down the hall screaming:
‘No one is going to get my fucking kids. I want the police to kill me in front of the children’.
I watched him and he appeared to go into what was used as a computer room. I saw him come out holding a gun in his hand down by his side. It was a small gun, not a rifle, black in colour. He then put the hand holding the gun behind his back.
He came and stood in the Kitchen in front of the dining room table where I was sitting. He said:
‘I know they are out there’.
My mobile telephone rang then. I picked it up and I answered it. It was [the mother]. She said:
‘Mum I’m at the police station. Are you alright?’
I said:
‘yes’
She said:
‘Has he got a gun?’
I said:
‘yes’.
She said:
‘The police S.W.A.T. team has come from Sydney’.
and hung up.
I said to [the father]:
‘Look just let us go. The police aren’t here. I’ll go out and check’.
He said:
‘No, I want the police to kill me in front of the children’.
Just then my other daughter […] walked in. She started talking to him. [The father] was shouting and screaming but she kept talking to him, then, turned to me and said:
‘Just go’.
and I took the children out of the house.
My husband had been waiting and took me and the children to [O] Police Station. [The mother] was there. I wouldn’t talk to the police because I was such a mess.
Police officer said to me:
‘We must have a statement. We want this man but you can give it later’.
and said to my husband:
‘Take her home’.
My husband took me to [O] Hospital where the doctor gave him sedatives to give to me and I went home and stayed in bed for a week. I just cried all the time and could not talk about it. I did not go to the police and give a statement and have never spoken to anyone else about it until making this statement today.”
The maternal grandmother was tested vigorously in cross examination as to whether or not she could have seen the father and children in the lounge room if she was in the kitchen. I accept the maternal grandmother’s evidence that she was in a part of the house which enabled her to make the observations she told me she made.
It was suggested to the maternal grandmother she was there to support her daughter’s case (the implication being that the maternal grandmother would fabricate evidence for her daughter). I don’t accept for a moment that that is true. It was obvious to me that the maternal grandmother would have preferred not to have come to court and not to have spoken openly of the things that happened in the father’s home on 18 July 2003.
The only part of the maternal grandmother’s evidence that didn’t correspond entirely with her affidavit was the statement that “the police SWAT team has come from Sydney”. She was not sure that she had used the word “SWAT” but she had probably said something like “tactical police”. Nothing turns on that difference.
She said that as a result of conversations with her daughter she knew that the father kept a gun in the house. Her decision to go to the house to try and get the girls back was made on the basis that she did not think for a moment that he would get the gun out.
The maternal grandmother was very clear that the father had gone to another part of the house. This was because of the time it had taken, she thought that it was a room that was relatively close (the computer room). He had re-emerged with a gun in his hand. The gun was initially by his side and then he put it behind his back.
The maternal grandmother confirmed in her oral evidence that during the incident the father was ranting and screaming. He was angry and talking out loud. He however was never physically violent to her. He at no time physically stopped her leaving the house but she said she wasn’t going to leave without her grandchildren. She confirmed that he said that he wanted to die in front of the children. The maternal grandmother said that she was able to get the children out of the house after her other daughter had come to the home.
The maternal grandmother said that her granddaughter had talked about the gun on two occasions. The first was shortly after the incident. That evidence is consistent with the evidence given by Mr P about what the granddaughter told him about the gun on 18 July 2003. The maternal grandmother also said that her granddaughter had again spoken about the gun in a conversation that she had with her on 19 February 2007 (she had rung her granddaughter to tell her that she was going to go to court to give evidence because she was apprehensive that her granddaughter might see that as some breach of trust).
During her oral evidence I asked the mother whether or not when she was at the police station on 18 July 2003 she had handed her mobile phone to the police during her conversation with the father. She confirmed that she had. She however could not remember hearing the father say to the police on the mobile phone “you tell the kids why I killed myself” or words to that effect. She said that she was in a state of high emotion at the time.

Mr P

Exhibit ICL4 contains a memorandum from Mr P, psychologist at O, to Mr D (DART) dated 25 July 2003.
Mr P was called to O Police Station on 18 July 2003 because of concern from a DART case worker, Ms E, about the emotional wellbeing of the children. It was feared that they might have been traumatised whilst in the home with their father. Mr P engaged the children in some play activities and commented that the children appeared to be reasonably settled despite being in a strange environment. He said there was no immediate evidence of trauma symptoms. He continues:-
“Nonetheless, during the interview, it was apparent that [the son] was anxious about his mother being out of the room and away from his immediate view. Eventually be became quite difficult to contain and he began to shown some low level aggression, such as some pushing and kicking and throwing of objects directed towards myself. This behaviour soon settled down when he was able to reconnect with his mother. These signs of anxiety were mentioned to [the mother] and she was urged by me to adopt a containment strategy with the children. As such, I said to her that for their immediate wellbeing they simply need to know that they and both their parents are safe, and that they will soon be going to a place to stay, overnight, until everything has settled down at home. I also said that I had spoken with the children to determine whether they knew what had happened and whether they understood why they were at [O] Police Station. I added that they appeared to understand that daddy was not well and he just needed some time to sort out some problems he was having. This explanation appeared to satisfy them. I also said to [the mother] that during conversation with [the daughter] she had said “daddy’s got a gun”. As you will recall, I also reported this disclosure to you, and you responded that the police were aware of the situation. [The daughter] said nothing further about this and because she appeared to be reasonably settled, I saw no reason to pursue further details.”
Exhibit B is a affidavit by the father. At paragraphs 6 through to 10 of that document the father says as follows:-
“6. In 2003 I was having a relationship with [the mother’s] sister. I remember one time she was so angry about it she threw something at my head.
7.In relation to the allegations that [the mother] has made about a siege in 2003, I deny this every happened.
8.I have never been charged with this incident and the police never found any gun.
9.I would never even conceive doing anything remotely violent to anyone related to my children or my children or in my children’s presence.
10.The allegations were made about me when I was seeing [the mother’s] sister.”
In oral evidence, the father maintained that he did not have a gun in the house at the time of the incident in 2003. He said that his previous weapon was a mosverg 590 shotgun that had not been sawn off and was a weapon that he handed in under the amnesty in 1997. It was clear that the father had a good knowledge of weapons. The father said that he was able to easily procure them during his adolescent years from Top Ryde Toyworld and he was able to obtain his ammunition from Kmart.
The father asserted that on the day of the incident in July 2003, four police officers turned up in two paddy wagons at about midday (before the maternal grandmother arrived). There is no record of that happening in the police records and I am unable to accept the father’s version that such a thing happened. There were certainly no police there at the time the grandmother arrived.
The father conceded that he at least said during the incident “let them explain to the children why they killed their father”. It was the father’s position that the orders that he had allowed him to have the children with him until 5pm. It was his position that it was better to let a situation escalate so that he could enforce that right rather than allow the children to leave with their grandmother. He only eventually allowed the children to leave with their grandmother when the mother’s sister, pleaded with him and explained to him that if he continued on the path that he had set himself it was likely that he would be killed by the police.
Mr P is employed by the Department of Community Services as a psychologist. On the afternoon of 18 July 2003 he was called to the police station for the purposes of providing some assistance to the children. He made a record of the events which happened during the time he was with them. He said to the best of his recollection what he had recorded in his memorandum was what had happened at that time.
He confirmed that overall the children seemed reasonably settled and comfortable in the environment although the son got a little bit agitated as time went on when his mother was in another part of the police station.
His evidence was that the daughter (aged 7) was on the floor colouring in and spontaneously said without any prompting: “Daddy has got a gun”. Mr P confirmed that the daughter didn’t say she saw the gun nor did she say that anybody told her that daddy had got a gun. The daughter seemed calm and settled during the time that Mr P was with her (which was a period of about one hour). He didn’t see anything in the daughter at the time that would indicate that she had been highly traumatised. He didn’t interrogate her about the statement that she made “daddy has got a gun” because he didn’t want to contaminate any information that the police would otherwise seek. He did of course though think it was appropriate for the police to know about what the daughter had said.
The mother said that the daughter drew a gun at the police station. It was submitted that I should not accept that evidence given that no drawing of the gun was contained in the records produced under subpoena by the police and because Mr P did not see a drawing of a gun. None of that evidence excludes the possibility the mother was telling the truth and given that I have accepted her as being somebody who has sought to tell the truth in this case I do not discount her evidence in that regard.
Counsel for the father submitted that the daughter’s statement to Mr P about the gun should be discounted because she was at an impressionable age and it would be open to suggestions made to her by her mother and maternal grandmother. I don’t accept that submission.
The mother’s evidence was that the daughter had about one year’s counselling (seeing the counselling each week) with the unit known as PANOC (Prevention of Abuse and Neglect of Children) and has ongoing counselling with her school counsellor. Originally the daughter was attending school at L School but she is now at A School. The mother says that her understanding is that the counselling for the daughter is for long term depression and anxiety and the school has funding to provide that counselling to the daughter.
It was suggested by counsel for the father that I should accept an interpretation that the daughter was in some way told there was a gun, most likely by her mother or the maternal grandmother. That would be inconsistent with the evidence given by the maternal grandmother that the daughter was the one who mentioned it to her on two occasions. I accept that the daughter saw the gun and told her grandmother so on the balance of probabilities I find that the statement made in the presence of Mr P by the daughter was a reference to her seeing the gun, not being told that there was a gun.
The combined submissions of the Independent Children's Lawyer and Counsel for the father were to the effect that the incident of July 2003 should be viewed as less significant than it has otherwise been portrayed because:-
86.1.no gun was ever found;
86.2.the police did not criminally charge the father;
86.3.the maternal grandmother never made a statement to the police;
86.4.Mr P’s evidence is that the children were not visibly traumatised by the incident;
86.5.the father had unsupervised contact with the children between November 2004 and April 2006.
86.6.In 2005 the father was given the children to look after whilst the mother and Mr A went on holidays and in addition to that the father also looked after Mr A’s children;
86.7.that the daughter only reported to her counsellor that the incident in July 2003 was “weird”.
86.8.That the daughter had not been forthcoming with Dr W (see page 16 of his report) and that Dr W in his report had not considered the possibility that nothing had ever happened.
The Independent Children's Lawyer submitted that on the balance of probabilities I should find that there was no gun held by the father during the incident in July 2003.

Conclusion about 18 July 2003 incident

I find that the event that took place on 18 July 2003 was a traumatic event for the mother, the maternal grandmother, and the daughter. I find the father was ranting and screaming during the incident. He was unstable, switching between moods of despair, anger and agitation. I find the father was in possession of a hand gun at the time. I find he told police that he was going to kill himself and that “you tell the kids why I killed myself”.

THE INCIDENTS IN APRIL 2006

The mother sets out at paragraphs 5 through to 15 of her affidavit sworn 28 November 2006 what she asserts took place between Wednesday 12 April and Sunday 23 April.
In summary the mother says that she became concerned that the father was not taking his medication as a result of conversations that she had with him on the telephone on Wednesday 19 April and Thursday 20 April.
The mother’s oral evidence is that she reached an agreement with the father that he would bring the children home to her on Friday 21 April after he had taken them motor bike riding. He was due to call at her house to pick up the children’s motor bike clothes to take them riding. The mother became quite concerned when he hadn’t arrived by 6pm. She rang the paternal grandmother. She said there was panic in the paternal grandmother’s voice and says the grandmother said to her “he left with the kids at 10am and has left the motor bikes at my house”.
The mother gave oral evidence that during the conversation that she had with the paternal grandmother shortly after 6pm on 21 April 2006, the paternal grandmother said to her words to the effect “I’ll pay for you to go to Queensland. Tell him you love him. Tell him whatever you have to to get the children back”.
The mother says that at about 6.15pm she made telephone contact with the father. She said he was on a mental high and was raving. He said he had thrown the daughter’s mobile out of the window at Newcastle because it was bugged and he was going to sue SEA FM and Dreamworld for millions of dollars because they were screwing a man’s head that was already screwed.
It was put to the mother that what the father actually said to her during this conversation were words from a Rolling Stones’ song:-
“I was around when Jesus Christ had his moment of doubt and pain”

The mother denied that the father said those words.
The mother’s oral evidence was that her girlfriend paid on her credit card for the airfares to get her up to Queensland that night but she subsequently received reimbursement payment from the paternal grandmother. Tendered in evidence was the mother’s partner’s bank statement. That Westpac bank statement (exhibit 1) shows that on 28 April there was a deposit from Ryde NSW into Mr A’s bank account of the sum of $350.
The father’s version of what happened is set out at paragraphs 8 to 13 of his affidavit.
In oral evidence, the father minimised the circumstances surrounding him throwing the daughter’s telephone out the window. He said it was crackling. He said that she was getting a new one anyway when they reached their destination. He actually ended up getting the daughter’s new phone on 1 May which was the first day of his day release after he was scheduled by the hospital.
The father says that during a conversation on Thursday 20 April the mother told him that the daughter had a party on Saturday to go to. The mother dates this conversation later than Thursday. The mother’s evidence was that she did tell the father at a particular point that the daughter had a party to go to as a pretext to try and get the children back after she had made the assessment that the father was no longer medicated.
In her affidavit sworn on 17 November 2006 the paternal grandmother puts in issue two parts of the mother’s story. She firstly denies what the mother said in paragraph 9 of her affidavit. There the mother says that during the conversation at 4.25pm on Thursday 20 April 2006 which she sets out in some detail (which basically demonstrates the father was off his medication and in a delusional state), that he could hear the respondent’s mother in the background during the conversation. The paternal grandmother denies she was present at that time and denies that she heard her son say any of the words that are set out in paragraph 8 of the mother’s affidavit. The mother was not tested in relation to her assertion that she could hear the paternal grandmother in the background during this conversation.
The second matter with which the paternal grandmother takes issue is the statement in the mother’s affidavit that during the conversation with the grandmother on Friday afternoon at about 6.15pm, the grandmother was “panicking when I told her that [the father] had left with the children”. The grandmother denies that she was panicking. She says she didn’t have any concerns about her son’s capacity to look after the children at that time.
The paternal grandmother was questioned about what happened in April 2006. Paragraph 7 of the paternal grandmother’s affidavit sworn 17 November 2006 says that she wasn’t present during the period of time when her son was speaking to the mother on the telephone. By that she meant that she wasn’t in the same room, although her evidence in that regard was a little inconsistent because she said she heard her son and the mother laughing about getting concert tickets.
She reported that the children told her in an excited way that they were going to a concert on the central coast. She said that whilst the children were very excited about the concert they only ever spoke about it once. They did not speak about it later in the evening nor did they speak about it when they were having breakfast the next morning between 6am and 7am before they left the house. Certainly at the time the children and their father left the house the paternal grandmother was clearly of the view that they were going to the central coast to go to a concert with their mother being present. Part of the source of the excitement of the children was the fact that their mother and father were going to the same event together.
In paragraph 8 of her affidavit sworn 17 November 2006 the paternal grandmother refers to a telephone conversation that she had with the mother on Friday 21 April 2006. She says:-
“I reject and deny the allegation that I was panicking.”
In cross examination the paternal grandmother admitted that in this telephone conversation she did panic, as did the mother. The paternal grandmother had expected that the children would be going to an event with their mother and father that day and would then be remaining with their mother. By the time the mother rang the paternal grandmother, the paternal grandmother had made tea for her son and was waiting for him to come back to the home without the children. She wasn’t concerned that he was late. She wasn’t concerned about her grandchildren because she thought they would be with their mother by then. During the telephone conversation between the two women, both realised that neither of them had any idea where the father had taken the children. I am satisfied that at that time both of them felt panic. The evidence of the paternal grandmother in paragraph 8 of her affidavit sworn 17 November 2006 that the children were by agreement between the mother and father to be with the father that evening is inconsistent with her oral evidence.
The paternal grandmother agreed that in subsequent telephone conversations that evening once it had been ascertained that the father had taken the children to T that the paternal grandmother would pay the mother’s airfares to go to T to recover the children.
The paternal grandmother says that she saw nothing untoward in the father’s behaviour on Wednesday 19^th or Thursday 20^th April. This is inconsistent with reports made by the mother as to the father’s ravings to her on those two days. These ravings led the mother to conclude that the father was not medicated. As I discuss elsewhere the alternate explanation is that he had taken some other substance which had a short term effect upon his emotional state. It is possible that the father’s presentation to the mother on the telephone was different from his presentation to his own mother inside the house at that time but on the balance of probability it isn’t likely. Either the paternal grandmother is not telling me the truth about how her son was behaving in the home at that time or she was oblivious to his behaviour (simply treating it as normal). Whilst she is aware of her son’s mental health problems, in oral evidence she was not particularly able to acknowledge the extent of these problems.
On 20 April, notwithstanding the panic she felt for her grandchildren, she did not want the police to pick him up, she did not want him hospitalised and she did not want him to have an injection.
Counsel for the mother in final submissions referred to an entry from a note in I.C.L. 3. On balance reading that note it is a note prepared by Dr C on the night of 21 April 2006. On balance I am satisfied that the “mother” referred to in the note is a reference to the paternal grandmother and not the mother of the children in these proceedings. The note contains this passage:-
“Mother stated he hasn’t been taking his medication and started drinking alcohol. She never heard he was drinking Ecoh. He was not sleeping. He was accusing mother being like others, against him. He took his two kids this morning and drive up to his home in [T].
His ex-wife concerned about his children according to his mother. Mother believed won’t be danger to his kids, because he loves them. He believes someone was hitting the children. He wanted to go to court to protect them.”
What flows from that is that Dr C had communication with the paternal grandmother on the night of 21 April 2006 and she told him that the father at that point was off his medication. Whether she said he was drinking alcohol is not clear.
This is a very different version to the version given under oath by the paternal grandmother. Unfortunately this passage in the notes was not put to the paternal grandmother in cross examination.
At page 12 of Dr W’s first report he records his interview with the paternal grandmother. It is unclear how it was that he got the information that appears at the end of the second page of his second report, that is that the grandmother thought that her son’s proposed actions were impetuous and that she was unable to persuade him to change his course but that information is consistent with the passage from I.C.L. 3 referred to above.
Exhibit ICL1 contains the following entry for 22 April 2006:-
“About 9.20pm on Friday 21 April 2006, police attended [the father’s home] in relation to [the father]. Police had been contacted by the [T] Mental Health Team and assistance sought to have [the father] taken to [T] Hospital to be scheduled. Upon attending the premises, [the father] immediately let police inside and spoke for about 5 minutes. He appeared to be completely rational and did not display any signs of being mentally ill. Nevertheless, he agreed to accompany police to the hospital and speak to the mental health team to show them that everything was fine. Both [the father] and his two children were taken to the hospital without incident. It would appear that [the father’s] ex-wife may be making accusations about him which have caused the mental health team to intervene. After speaking with them, they expressed doubts that he would be scheduled and the police were not required to wait at hospital.....at 12.40am on Saturday 22.4.06 contact was made with [T] Hospital in relation to [the father]. Information was received that [the father] had in fact been scheduled and is currently in [T] Clinic. His two children are in the care of DoCS.”
The father asserts in his affidavit that when he was taken to the hospital he attended before Dr C. The father says that he was with Dr C for approximately 90 minutes during which time he became aggressive with him. The father says that without any cause or explanation, Dr C scheduled him and he was overpowered by six security guards who threw him to the ground and slammed his head into concrete on six occasions. He said that he remained in hospital until 2 May because of his facial injuries.
The father’s handwritten statement (exhibit B) at paragraph 16 and 17 puts his explanation as to why monies may have been paid by his mother into the wife’s partner’s account in the following terms:
“16. Lastly, in relation to any money given to [the mother] to fly up to Queensland in 2003, it was actually 2006, when [the mother] spoke to me I told her words to the following effect:
‘I will pay for you to come up if you are that concerned’.
17. [The mother] declined. As far as I am aware, my mother then paid her air ticket.”
Exhibit ICL3 contains the medical report as to the mental state of the detained person for the purposes of the Mental Health Act. A document signed by Magistrate Hyde has “serious disorder of thought” ticked and “for the person’s own protection from serious physical harm” ticked.
The decision of the Magistrate was based on a report by Dr H dated 26 April 2006. It records that the father has a history of amphetamine use in the past and has used amphetamines recently and records:
“He has remained resistant to management and continues to act on his own delusions
·Meeting with his children was terminated by DoCS when [the father] began warning them about threats to their life
·Called children to disown them for being involved with conspiracy
·Persecutory delusions.”
The father’s case is that he was perfectly fine in April 2006 and had gone on a planned holiday with the children to the Gold Coast. His view is that the mother had hysterical concerns which she passed onto the authorities and upon which they acted. The father’s case is that he reacted to being detained in a mental hospital.
A document that is contained in ICL8 which is a document which seems to be completed by Dr F, records the following reason for referral: “brought in by police after ex-wife (allegedly incorrectly) reported him to be unwell and to have abducted his children”.
Under summary of care is the following entry:
“After initially being angry about being admitted, [the father] rapidly settled. Some chronic delusions persist, but there was no evidence of any acute illness, or danger to himself or others. Continued voluntary on his existing medication”.
On 2 May 2006 it is recorded that the father voluntarily discharged himself from the hospital.
In his second report Dr W (at page 2) says the following:-
“It appears that the paternal grandmother thought that her son’s proposed actions were impetuous but was unable to persuade him to change his cause and indeed this may have led to the children being exposed to an unpleasant and perhaps even frightening dispute between [the father] and his mother. Subsequently, during the trip north, it appears that he said some rather inappropriate things to the children based on his delusional beliefs, possibly because they had the car radio on during the trip and he was already over stimulated from a dispute with his mother, leading to the children becoming rather fearful, communicating with their mother and the mother intervening.”
Dr W agreed that one possible explanation of the behaviour of the mother as reported on the Thursday and early Friday evening may have been explainable if the father had taken amphetamines on 21 or 22 April. Dr W confirmed that the use of stimulants like Speed and Ice would aggravate the father’s psychosis if he was still taking those today. The father denies that he has since he separated from the mother taken any illicit stimulants such as Speed or Ice.
Dr W said however that although the police reported that he appeared normal when he saw him that was not determinative of his mental state. Dr W talked about “the chicken and the egg”. It is common ground that later in the evening the father caused an incident in casualty where he was physically restrained by six people. The father was on a mental high and raving. Dr W explained that those persons wouldn’t normally be in casualty, they would have had to have been called from other parts of the hospital. It is likely the father also had to be sedated. This was not indicative of somebody who was at that time in control of his situation.
Dr W agreed that Dr F was an experienced psychiatrist but said it wasn’t Dr F who had seen the father and how he presented on 21 April 2006. The fact was that another doctor had dealt with him in causality on the previous night.
Dr W referred to the father as being enoverted, grand eloquent, slightly revved up, capable of being moved easily to a state of being angry and annoyed. Dr W said that he had taken into account the fact that the mother’s observations on Thursday 20 April 2006 may not have been objective. I, however, do not discount them. I accept them as accurate. It seems obvious that the children were in a difficult situation at the hospital late in the evening of Friday 21 April 2006. Dr W described it as a chicken and egg problem. Clearly the father’s version is that he got very upset that his children were in the situation where he had to be taken to a hospital by police. The father’s version is that he reacted to the fact that in his view the mother had unjustly engineered a situation where he had been picked up by the police and taken to the hospital with the children being caught up in that situation. It is the father’s case that the mother’s unjust accusations led to his behaviour on that night. It is the mother’s case that the father’s behaviour, particularly early evening Friday 21 April, caused her to be alarmed and raise the alarm. I am of the view that the father is a volatile person who is capable of reacting in quite abnormal ways.
Dr W said that sometimes psychiatrists who see adult patients can say that their adult patients are in control. That’s not to say however that they are not very difficult persons to live with and that children might find them difficult to deal with.
I do not accept the father’s version of what happened in April 2006. I accept the mother’s version of what happened. In particular I do not accept the assertions by the father that he was simply reciting to the mother the words of a Rolling Stones’ song on the incident when he was travelling north with the children.
The paternal grandmother and the mother in these proceedings give very different versions of the father’s behaviour on Thursday 20 April 2006 and Friday 21 April 2006. The hospital record of the conversation with the paternal grandmother is supportive of the mother’s version of the father’s behaviour at that time. It is also clear on balance from that note, that Dr C admitted the father, based on the information given by the paternal grandmother as well as other information that he had and the father’s delusional thinking on that night.
The admission notes make it clear that the father first came to the hospital at 22:50. The first note after Dr C’s note is timed 3.30am on 22 April and in part reads
“has been non compliant, drinking recently, becoming increasing paranoid; children being cared for in paediatric ward, ex-wife aware of situation; mother’s phone number is 02 43936809.”
Dr C’s original notes say that the father’s affect on presentation to him at the hospital was elevated and irritable.
I find that the 21 and 22 April 2006 were very difficult days for the children whilst in their father’s care. His behaviour on 22 April whilst in hospital was particularly disturbing for the children. Whilst I acknowledge that he had been medicated by the hospital at that time, the core reason for the experience the children went through, was the father’s underlying mental illness.

RECENT EVENTS

10 March 2007

The father rang the mother’s home on 10 March 2007 at about 6.10pm wanting to speak to the children. There was a disagreement between the mother and the father about how long that conversation happened for. When the mother said to the father “there are court orders at the moment and contact is suppose to be supervised”, the father replied “fucken supervised, they are my kids and I am going for full custody”. There is evidence that the father denies he used the word “fucken”.

17 March 2007

On 17 March 2007 the mother received a text message from the father in the following terms:-
“U must B the worlds greatest mum how much U torture UR kids AY letting them have contact with their dad bravo”

20 March 2007

The father telephoned the home on 20 March 2007 seeking to speak to the children. The mother was not at home at this time. Later on that day a man called G came to the house. Mr A’s affidavit of 4 April 2007 makes it clear that G was pleasant and polite. He had been sent by the father to get the kids to telephone the father. Shortly after that time the father rang Mr A. Mr A told the mother that the father wasn’t talking to him badly in the beginning. The father however, when told by Mr A that neither of the children were in the house at the time, said “I know that they’re there, my mate has just told me that they’re there” and then after Mr A responded the father said “that bitch is not going to dictate when I can and can’t talk to my kids”. The father then started to raise issues going back to the time of the separation, asserting that the mother had been sleeping with Mr A three months prior to the separation. Mr A terminated the telephone call with the father.
The mother says that she is not happy about the father sending someone to her home and that she had found the telephone calls made by the father quite stressful, that she felt ill every time she spoke to the father on the phone and that the kids were now too scared to answer any phone calls.
Although Counsel for the father says she was not able to obtain instructions in relation to the contents of the affidavits filed by the mother on 5 April 2007, allegations in relation to G attending the house and phone calls were contained in a letter written to the father’s lawyers on 28 March 2007.

In oral evidence the paternal grandmother said that by threatening, in the future, to call the police she thought that she would be able to stop her son from doing something that he indicated that he was going to do. Like Dr W, I have strong reservations as to the paternal grandmother’s resolve to be able to carry through that assurance.
The paternal grandmother told me that if she received orders in her favour in the terms that have been agreed to then she would not press any further application in relation to seeking more extensive orders.
The paternal grandmother said that she never had seen her son with a gun and was totally unaware that he had ever had an interest in weapon. This is notwithstanding that her son had lived with her all of his life, apart from some brief periods and up until the time the father had moved to his parent’s four bedroom unit at T. For three years, commencing when the father was 16 years of age, the paternal grandmother had taken her son back to Yugoslavia because of difficulties he was having at school in Australia.

Willingness to encourage and attitude to relationship between child and other parent; attitude to the responsibilities of parenthood

Section 60CC(4A) FLA requires me in particular to focus upon events that have happened, and circumstances that have existed, since the separation occurred.
The mother’s willingness and ability to facilitate, and encourage, a close and continuing relationship between the children and their father has been criticised.
The father can rightly criticise the mother for the delay in complying with the order that was made on 7 November. Her explanation as to her delay was that she had five children at home and that Christmas intervened. The father conceded that he did not press the mother before Christmas for her compliance with the order. It is however a valid criticism that the father can make of the mother that she lacked diligence in complying with the order that had been made on 7 November.
Counsel for the father referred to hospital admission records in I.C.L. 3 for 21 and 22 April 2007. She referred to the fact that the father was not angry or volatile when he was admitted at about 22:50pm on 21 April but that his behaviour escalated at 3:30am on the following morning. Counsel for the father also submitted that a reading of I.C.L. 3 would disclose that the mother had a reasonable degree of contact with the hospital on 21 April 2006. She also pointed to the fact that in the middle of 2005 (15 April 2005, 25 April 2005 and 1 July 2005) the mother was involved in having communications with the father’s mental health team. The implication that I was asked to draw from these records was that at the core of the father’s problem was the mother’s involvement in and agitation for his hospitalisation and treatment for mental illness. However, as Counsel for the father pointed out, she could hardly be criticised for what happened in 2005. It led to the father’s behaviour at that time coming to the notice of the mental health authorities. Although the mother, in 2005, gave the mental health authorities information which led to the father’s admission I find it was the father’s behaviour as observed by those who attended his home that led to his admission.
Overall I find that the mother has shown willingness and an ability to facilitate and encourage the children’s time with their father, given that I find that her reactions to behaviour exhibited by the father from time to time have been reasonable.
The mother has a fear of the father’s behaviour when the children are with him. That fear is not fanciful or invented. I do not accept the submission that the mother has at times exaggerated the state of the father’s mental health with a view to preventing the father from having a meaningful relationship with his children. The father asserts that the mother coaches the children about his mental illness. The father asserts that the children have a view that he is Martin Bryant and that the mother has put that notion into their head. On the evidence before me I have only the father’s assertion that the children think that of him. I cannot rely upon that assertion.
I accept that the attendance of G at the mother’s home would be disturbing for the mother. Absent any other evidence from the father, it is a reasonable inference to think that G, being one of the father’s friends in Sydney, has some connection with a bikie gang.
The father has little insight into his own illness and the effect of his erratic and violent behaviour on the children. He denies that anything happened during the incident on 18 July 2003. He minimises the impact of impulsively removing the children to T in April 2006. His presentation to Dr W during his interviews with Dr W and Dr W’s opinion generally means that the mother’s apprehension in respect of the children’s time with their father and the protections which she wishes to be built around that time need to be given considerable weight.
The father is not in employment. The father’s legal obligation to maintain the children has been met by him. The finances of the mother’s household however almost entirely supports the children.

Effect of Change

The father is seeking that the children spend time with him for bulk periods over the school holidays. That was an arrangement that was in place from November 2004 to April 2006. The father submits that the children’s familiarity with that arrangement will mean that the effect of any change in circumstances will be minimal.
The fact is however that that arrangement has not been in place for almost a year now. The arrangement ceased because of the incident that happened in April 2006. Dr W’s opinion is that the children could spend one week in block period during school holidays with their father on the north coast if an adequate supervisor could be found.
The father originally wanted to make three telephone calls of unlimited duration to the children per week. In the final orders sought by him (order 8) he wants to be able to communicate with the children whenever he wishes and for the children to communicate with him whenever they wish. In my view that is not an appropriate level of contact at this time.
The father proposes that supervision of block holiday contact be provided by his mother. Dr W assessed the mother as an inappropriate supervisor given that she does not have any real capacity to intervene to protect the children from the father’s mental illness and given that she denies or blocks out the extent of the risk arising from the father’s mental illness. I agree with that assessment.

Practical difficulty and expense of being with and in touch with other parent

The parties live a long way apart. This creates a practical difficulty and expense for the children to spend time with their father. The father’s evidence is that the only reason he would travel to Sydney would be for the purposes of spending time with the children. It is about eight to nine hours from where the father lives to Sydney.
The father was not impressed with only having two hours with the children in a contact centre. He said the two hours went past like it was 30 seconds.
Dr W said that given the risks the most appropriate method of supervising the father would be to have it done by a family member who could be relied upon to recognise difficulties in the father’s emotional state and to protect or remove the children from those difficulties should they arise. Dr W did not think the paternal grandmother was a person who fell within that general description. Dr W was of the view that the father would just “steam roll” his mother.
The father said that his father works a lot, up to 30 hours a week. The children love their paternal grandfather but the father did not put him forward as a possible supervisor.
The father opposed supervised contact. He said he did this because he will not allow the children to have confirmed in their own minds that their father has something wrong with him. He is of the view that they have been coached into thinking that he is a schizophrenic like Martin Bryant.

Telephone calls

The father wants to be able to phone the children up to three times a week. The father is concerned that the mother monitors his telephone conversations with the children.
The husband said that he should be able to have untimed and unlimited telephone contact with the children as long as he felt it necessary. He repeated on a number of occasions in this context that the daughter does not wet the bed with him and that his continuing link with her is one which he believes is beneficial in relation to remedying her bedwetting condition. Also if the daughter is upset he will stay on the phone as long as it takes to see if he can attend to her distress.
He confirmed that he and the daughter had signals that they gave one another when the mother was listening to telephone conversations. He said that the daughter had different voices she used to give him that signal. He was asked what he did when he received the signal. He said he gave little hints that a door might be closed so that the baby’s cry can no longer be heard and that the daughter can have a private conversation with him.
The mother details the history of telephone calls (particularly at pages 4 and 5 of her affidavit sworn 28 November 2006 ). At paragraph 31 she says in late August and most of September 2006 the father would make daily telephone calls to her home to the children that would last for about half an hour. In paragraph 33 and 34 she reports the father saying some quite inappropriate things on the telephone.
This combined with the evidence of the father asking the daughter to go to the park late at night and there being secret signals between he and the daughter that would indicate to him that the telephone calls were supervised convinces me that I should not exceed to the Independent Children's Lawyer’s application to restrain the mother from being involved in the supervision of telephone calls. Counsel for the mother indicated that the mother would be satisfied if no order was made one way or the other in that regard that that’s what I intend to do when making orders.
The mother seeks not to be restrained from monitoring communication between the father and the children. Dr W was of the opinion that that may well be appropriate in the circumstances of this case. I find that it is in the children’s best interests that no order be made that would restrict the mother monitoring telephone conversations. I do not accept the Independent Children's Lawyer’s view that all conversations between the father and the children should be private.
The father was asked questions about the installation of a webcam. The father said it would have been set up a long time ago had the mother been prepared to entertain that as an idea. The father, in the final orders that he seeks, wants an order that both parties do everything necessary within six months to install a webcam. I think that is an appropriate request and I will make an order in those terms. Each party will bear the cost of installing appropriate equipment in their homes.

The capacity of parents and others to provide for needs of the children (including emotional and intellectual needs)

The father submits that the mother behaves in an obstructionist manner towards the father spending quality time with the children and that this demonstrates a lack of insight into providing for the children’s emotional needs. I have already said that I do not agree with that submission.
The mother has demonstrated a capacity to provide for the emotional and intellectual needs of the children. The father has demonstrated a history of episodic and unpredictable inability to care for the children and his behaviour whilst mentally unwell has placed the children at least at psychological risk. The children would have been grossly traumatised had the father carried through with his stated intentions during the incident in July 2003.
The daughter still wets her bed (at the age of 10).
There is a risk that if the father is left unsupervised with the children he will press them in an insistent way that they would find distressing and upsetting.
Dr W said that it is likely that there is a risk that the father’s relationship with the children will become attenuated simply as a result of the distance between the father and the children and the limitations that that places upon face to face time with the children.
Dr W said that by the time the children were 13 or 14 they would have developed their own coping strategies to be able to see their father and that the daughter is not far away from that (the daughter is currently 11). Dr W thinks that in the next year or two she would be able to have those coping strategies. It would not however be a fair burden on the daughter to place her in the effective role of supervisor of the son who would at that time still only be 10.

The maturity, sex, lifestyle and background of the child and of either of the child’s parents

The father submits that the children are of Australian/Croat heritage. He asserts that by alienating the paternal family the children are being denied access to their Croat culture. There is no evidence before me that that is so. There is no evidence before me that the mother does not support the children understanding their family history.
The father indicated that he has no current intentions to seek to take the children to Yugoslavia where his relatives live. He said there is just too many bombs going off where they live. He added that he wouldn’t take them up to Bail either.

Family violence

I must also ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount: s.60CG.
Family violence is defined in Section 4 of the Family Law Act to mean conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
I am satisfied that the father’s behaviour during the incident on 18 July 2003 and during the days in April 2006 that have been referred to in these reasons is conduct that falls within the definition of family violence. The father’s conduct, both actual and threatened, were such that I find it did cause the children to be apprehensive about their well being and safety.
In cross examination the father confirmed that he was currently an inactive member of a motor bike organisation. He is a life member of that organisation. He still has contact with them, on a social basis, and had been out drinking with some members as recently as last week (that is, the second week in February).
Whilst the father denied that he had ever played an enforcing role in his past, he did give evidence that he knew friends whom he could pass that type of work onto. He did say that he had collected debts. He said that he did that as a “mediator” and was able to collect debts by “having a nice chat” with people. The father later in his evidence was referred to records in which the father admitted to having done bad things in the past. The father’s explanation was that this was not a reference to him working in the role of an enforcer but rather a reference to things that any young fellow has been up to. He said it was a misunderstanding by the person who recorded the note, he didn’t recall saying it but he may have been psychotic at the time.
I find on the balance of probabilities the father in the past probably did do “bad things” in his role as a debt collector outside the normal civil debt recovery system.
The father went to Yugoslavia in about January 2003 and was in Yugoslavia for the first part of 2003.
The father denied that he ever had an email address which was known as “[…]”. Much of what was in exhibit 2 was put to the father in cross examination. He denied sending the email and he denied a number of the things that were put to him that were contained in those emails. On a number of occasions however when answering questions it was clear that what was contained in the emails was his personal history. An example of this was that whilst sitting on a balcony having a drink, bombs were going off. This is something that is referred to on the first page of the email of 8 April 2003 (see exhibit 2). Another example was that it was alleged that on three different occasions the father had $50,000 put on his head as a bounty for his death. There was a reference to such an assertion at the bottom of the second page of the email of 8 April 2003.
I have got no reason to disbelieve the evidence of the maternal grandmother when she asserts that she was in email communication with the father whilst he was in Yugoslavia and that these emails came from him.

Any family violence order

There have been no family violence orders in this case apart from an interim apprehended violence order that was taken out apparently earlier in the day of 18 July 2003. There is no evidence before me as to what happened to that interim order (although it did not appear to become a final order). Otherwise there has been no family violence order.

The order that would be least likely to lead to the institution of further proceedings

The father has said if he does not get the outcome he wishes from this hearing then he will institute further proceedings. That cannot be a factor that influences my decision. The father would have to show a significant change in circumstances before a court would entertain a rehearing of this matter.

Any other fact or circumstance

Dr W advised that it would be useful for the children to have some counselling with an organisation that specialises in providing that service to children of parents who have a serious mental illness. I think that that suggestion is a good one and I intend to make an order that might facilitate that happening.

EQUAL SHARED PARENTAL RESPONSIBILITY

Initially the Independent Children's Lawyer submitted that the parties should have equal shared parental responsibility. During oral submissions that position was modified to one which acknowledged the reality, namely that the parties could not effectively manage that situation at the current time. I accept the Independent Children's Lawyer’s final position in relation to this topic as set out in the written orders provided by the Independent Children's Lawyer on 17 April 2007.

CONCLUSION

In final submissions Counsel for the mother endorsed and supported what Dr W had said at pages 18 and 19 of his first report. Dr W was concerned that there were significant risks when the children were in their father’s care. He said that although the father was not acutely psychotic when he saw him he still had a number of delusional ideas and very limited insight into whether he has a mental illness at all. Dr W also raised the possibility that the father was non compliant with his medication but I accept the evidence of his treating medical practitioners that it is probable at the current time that he is compliant. Dr W at the time of his first report did not have any confidence that there would not be a repeat of the types of incidents that happened in 2003 and 2006. Whilst Dr W referred to the fact that possible non compliance was one of the reasons he had this opinion, it was clear that Dr W’s opinion was primarily based on his assessment of the father’s mental state. I accept that the father’s present delusional system is perplexing and at times alarming to the children and I agree that it is probably associated with a relatively low material danger.

The mother’s position when speaking to Dr W in September 2006 was that she would agree for the children to spend time with their father if he was fully compliant with his medication. Dr W raised the issue as to how effective the medications had been. Clearly they have not been effective in eliminating the father’s paranoid thoughts. The mother’s position still is similar to Dr W, namely that the children can have face to face time with their father, if there is proper supervision.
The Independent Children's Lawyer submits that there is no evidence that the father has ever harmed the children or offered violent behaviour to the children. That is true. I find however that the father’s mental illness has led him to behave in a way that would fall within the definition of family violence as set out in Section 4 of the Family Law Act.
The Independent Children's Lawyer submitted that the mother has exaggerated the incident of July 2003 and her panic played an important part in what happened to the father in April 2006. I do not accept that.
Counsel for the Independent Children's Lawyer spoke about “mysteries” in the evidence that are unable to be solved. I do not agree that in relation to the important pieces of evidence in this case that that is so. I am able to make findings on the balance of probabilities in relation to most of them.
Even if that were not so, we are in this case dealing with matters that go to whether or not the children are at an unacceptable risk if left unsupervised at an appropriate level with their father.
I accept that the incident on 18 July 2003 was an incident of real and genuine violence by the father. I accept the maternal grandmother’s account of what happened in the house as honest, genuine and reliable. Her evidence is supported by the information in the COP records, by the very disturbing statements and thought processes displayed by the father in exhibit 2 (April 2003) and by extremely language used by the father to Mr A (as set out in paragraphs 17 and 18 of Mr A’s affidavit). I am comfortably satisfied that in July 2003 the father was involved in a disturbing and violent incident involving a gun.
I accept that up until April 2006 the mother had adopted a plan of managing the children’s time with their father which has involved an element which has attempted to placate his behaviour. She involves herself in this court case because she wants the court to impose some structure to the children’s time with their father.

PROPOSED ORDERS

Dr W’s view was that a telephone call of 20-30 minutes was the longest that a child could be expected to participate on a reasonable basis unless there was a really strong affection between the child and the father. Dr W said in relation to both children, a 40 minute phone period would be about the maximum.
Dr W suggested that the best arrangement would be for the father to have somebody with him whilst the children were there who could help him not get carried away.
He also agreed that it would be useful if the mother and Mr A were not present at changeover.
Dr W did not see the paternal grandmother as an appropriate supervisor because she was placating and eager to please her son. He also thought that if the father decided to do something then his mother would not be able to stop him from doing it. His view was that you needed some confidence that the supervisor would take steps that were necessary to keep the children safe if their father started to behave in an unusual way.
The paternal grandfather is a man who works very long hours and was not put forward as a potential supervisor in this case.
Dr W said that the children could go on holiday contact, say about a week, to the north coast if there was a suitable person who could provide accommodation and supervision for that period. Submissions by Counsel for the father went over two days. Originally Counsel for the father submitted that that person would be the paternal grandmother. But by the end of submissions that proposal was withdrawn by the father. During the hearing I asked Counsel for the father whether any other possible person on the far north coast who had some type of professional qualifications could be found or might be qualified to provide supervision. By the end of the hearing no such person had been found.
Dr W was asked about telephone contact and whether or not it was appropriate for the mother to be listening into conversations. Dr W said that in circumstances of this case he could not say that it was inappropriate for the mother to listen in on conversations that the children had with their father. He gave evidence to the effect that it may be important in this case to be sure that some things are not being said to the children. Ms Lawson put to Dr W and he accepted that if it was possible it would be better if someone else monitored the telephone calls.
Dr W also suggested that it might be useful for the children to be involved in some community organisation program for children who have parents with a mental disability. He said that one such program was conducted by ARAFMI. He said the availability of these programs depend on where you live and they are normally arranged through the mental health team in a local area. These types of organisations produce a number of publications that are accessible to children.
Counsel for the mother pointed to some practical difficulties with orders 5, 6 and 7 as proposed by the Independent Children's Lawyer. I have no evidence that the doctors would consent to this arrangement. There is no provision as to any regime for the payment of the doctors for their involvement or for the preparation of any reports. There is also no indicate as to what happens if there is no response from the doctors. The precondition for the father’s time with the children is that he merely authorise the doctors to provide information. Presumably the order would rely upon the Independent Children's Lawyer making some application to the court if the doctors did not provide the information but that’s not clear from the application of the Independent Children's Lawyer. These matters will require further attention if the father at a future time proposes that he have face to face time with the children under appropriate supervision.

INTERIM ORDERS SOUGHT

At the conclusion of the proceedings, Counsel for the father made an application for three weeks interim contact commencing that afternoon (similar to the final order 3(b) as sought). I declined that application on the basis that final orders would be made within a short period.

I certify that the preceding three hundred and five (305) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate:

Date: 4 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as VUKOVIC & VUKOVIC

[2007] FamCA 395

4 May 2007

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