Whyte & McGee

[2018] FCCA 355

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHYTE & McGEE & ANOR [2018] FCCA 355

Catchwords:
FAMILY LAW – Complex parenting dispute – two children having significant needs and health difficulties – children in care of maternal grandmother and her partner for over two years – children having chaotic life with each of their parents before this – conflict between mother and grandmother – poor relations between grandmother and father – both biological parents having very difficult lives and significant resultant difficulties including drug use and criminal records – whether father will properly pursue his time with children – risks if the father withdraws thereafter – court deciding on balance to give the father a chance – matter adjourned for seven months to monitor progress.

Legislation:

Family Law Act 1975, ss.4AB, 60CC(3)(i)

Jones v Dunkel (1959) 101 CLR 298

Applicant: MS WHYTE

First Respondent: MS MCGEE

Second Respondent: MR EDMONDS

File Number: MLC 4655 of 2015

Judgment of: Judge Burchardt

Hearing dates: 22, 23 and 24 January 2018

Date of Last Submission: 24 January 2018

Delivered at: Dandenong

Delivered on: 23 February 2018

REPRESENTATION

The Applicant: In Person

The First Respondent: In Person

Counsel for the Second Respondent: Mr Kanarev

Solicitors for the Second Respondent: Tyler Tipping & Woods

Counsel for the Independent Children’s Lawyer: Mr Menon

Solicitors for the Independent Children’s Lawyer: Clark Family Lawyers

INTERIM ORDERS

1. All previous Orders in relation to the children X born (omitted) 2010 and Y born (omitted) 2012 (collectively ‘the children’) are hereby discharged.

2. The Maternal Grandmother shall have sole parental responsibility for the children.

3. Further to Order 2 above, the Maternal Grandmother shall otherwise keep the Mother and the Father informed as to any issues pertaining to the medical disposition of either or both of the children, and their academic and social progress, and shall authorise the school to provide to the Mother or Father copies of reports or photos at their own expense.

4. The children shall live with the Maternal Grandmother.

5. The children shall spend time and communicate with the Mother as agreed with the Maternal Grandmother from time to time.

6. The parties do all acts and things and sign all necessary documents to effect the reintroduction of the children to their Father and his current family unit either through:

   (a)Family Life;

   (b)Catholic Care; or

   (c)Berry Street.

7. Once the Manager or her nominee of the relevant office of Catholic Care, Berry Street or Family Life is satisfied that the children have been reintroduced to the Father and his current family, and confirmation is received by the Independent Children’s Lawyer from either community based centre that the reintroduction has occurred satisfactorily, then the Orders below may commence. 

8. Subject to compliance with Order 7, the children shall spend time with the Father each Sunday between the hours of 10.00 am and 1:00 pm over a period of 12 weeks.

9. Subject to compliance with Order 8, the children shall spend time with the Father each Sunday between the hours of 10.00 am and 5.00 pm over a period of 12 weeks.

10. The Father shall enrol (and his partner may attend, if she wishes) in reportable family violence counselling and shall provide the counsellor with a copy of these Orders and a copy of the Judgment in this case.  The counsellor is requested to address the following issues in particular:

    (a)The impact of exposure to family violence on children;

    (b)Techniques for resolving conflict between parents in a relationship.

11. The Father shall request and authorise the counsellor pursuant to Order 10 to provide to the Independent Children’s Lawyer a short letter/report indicating:

    (a)The number and frequency of appointments;

    (b)Whether and for how many of the appointments the Father’s partner was in attendance;

    (c)An assessment of the Father’s engagement in appointments; and

    (d)An assessment of the Father’s insight in to family violence and the impact on children if they are exposed to family violence.

12. The Father shall:

    (a)Provide written proof to the Independent Children’s Lawyers of this application to enable Order 6 above within 14 days of the Orders being made;

    (b)Provide written proof to the Independent Children’s Lawyer of this application to enable Order 10 above within 14 days of the Orders being made; and provide a medical certificate in relation to any period of time pursuant to Orders 8 and 9 which does not attend due to illness.

13. In the event the Father:

    (a)Fails to comply with Order 12; or

    (b)Fails to attend three consecutive time spent periods pursuant to Orders 8 and 9 and fails to provide a medical certificate or at least 48 hours written notice to the Maternal Grandmother indicating the reason for the cancellation;

    Then the Father’s time shall be suspended.

14. The Mother shall:

    (a)Complete the parenting course which she has advised the Court in sworn evidence that she is currently enrolled in; and

    (b)Provide to the Independent Children’s Lawyer a copy of the certificate of completion within 7 days of the certificate having been received. 

15. The Mother shall advise the Independent Children’s Lawyer of:

    (a)The name and professional address of her current General Practitioner; and

    (b)The name and professional address of any counsellor, psychologist or psychiatrist whom she sees as a result of her mental health plan. 

16. The Mother, Father, Maternal Grandmother, or any agent of them, is restrained from:

    (a)Denigrating, belittling or abusing another parent or family member in the presence of or hearing distance of a child; or

    (b)Discussing any aspect of these proceedings with the children.

17. The Mother and Father, or any agent of the Mother or Father, are restrained from removing a child or children from the State of Victoria without the written permission of the Maternal Grandmother. 

18. The Mother, Father and Maternal Grandmother shall each keep each other informed of their contact telephone number and advise of any change in their residential address within 48 hours of such change. 

19. The matter is otherwise adjourned for mention on 8 October 2018 at 9.30 am.

20. The Mother, Father and Maternal Grandmother shall each file and serve any further affidavit upon which they rely not less than 14 days before the adjourned date above.

IT IS NOTED that publication of this judgment under the pseudonym Whyte & McGee & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 4655 of 2015

MS WHYTE

Applicant

And

MS MCGEE

First Respondent

MR EDMONDS

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting dispute about the best interests of two young children, X, born (omitted) 2010 and Y, born (omitted) 2012.  They have had much to contend with in their lives and still do.  The dispute in the case canvasses differences of opinion between the applicant Maternal Grandmother, her daughter who is the first respondent and the Father of the children who is the second respondent.  There are numerous other supporting players.

2. Putting the matter somewhat in the round, as I propose to do throughout this judgment, the issues between the parties are broadly these.  The Maternal Grandmother, Ms Whyte, seeks that the children live primarily with her.  So far as her daughter, the Mother of the children, Ms McGee, is concerned she seeks that time be spent by the Mother with the children by agreement but in substance some six hours each alternate weekend.  The Mother deeply wishes that the children live primarily with her but acknowledges that this is unlikely but says that the amount of time involved is not sufficient. 

3. So far as the Father is concerned, Ms Whyte (whom I shall refer to variously as the applicant, the Maternal Grandmother and Ms Whyte) seeks that time only occur with the Father in the event that he meets various milestones in what would be a fairly lengthy process of reintroduction.  She also seeks that time be wholly suspended in the event that the Father should stumble. 

4. The Father seeks an accelerated program for reintroduction and opposes a complete excision should he fail to do what the Court might require him to do.

5. This is not an easy case and the position of the Independent Children’s Lawyer is put in the alternative depending upon the findings that the Court may make as to whether or not the Father will or will not, as a number of parties put it, step up.  Should he do so, an extended re-introductory process is proposed and should he be deemed not able to do so then his time should be effectively reserved.

6. In my opinion the time proposed by Ms Whyte as between her and

   
   

   Ms McGee, the Mother, should be as she desires.  For the reasons that follow, in my opinion the evidence does not make any other outcome appropriate in the children’s best interests.

7. So far as the Father’s time is concerned, although I do entertain significant doubts and reservations about the extent to which he will be able to properly commit to his involvement with the children’s lives, I think the chances that he will in fact do so are sufficiently good that it is appropriate that he be given a chance to do so.  However, and contrary to his position, any backsliding will lead to a cessation on a permanent basis of his time with the children.

Agreed or Uncontroversial Facts

1. The applicant has been self-represented throughout this case and the Mother for large tranches of it.  This is reflected in affidavits that are often not entirely helpfully drawn.  It is not easy to ascertain, for example, the dates of birth even of the relevant parties.  From the initiating application it would seem that Ms Whyte was born on (omitted) 1970.  She lives with her partner, Ms N, and has done so for well over a decade.  They are both in full-time employment.

2. Once again, from the initiating application, it would seem that the Mother, Ms McGee, was born on (omitted) 1991.  She has a brother, the only other full sibling as I understand it, but very little has been said about him in the proceeding.  Likewise, Ms Whyte’s former husband (and Ms McGee’s father) has been largely a voice off.

3. The Father, Mr Edmonds, was born on (omitted) 1992 (according to Dr W’s report filed pursuant to his affidavit sworn 5 June 2016).  He lives with his partner, Ms S who was 24 years old when she swore an affidavit on 26 April 2016.  Their household includes their child, A, born (omitted) 2013 and a further child, B, born of another father, born (omitted) 2008.  Notwithstanding that Mr Edmonds is not the biological father of B, he is to all effects and purposes the only father she has ever known.

4. Additional to all these people, Ms McGee has a further daughter, C, born (omitted) 2016 following what, on any view of the matter, was a fleeting relationship with another man.  The father of C plays no part in her life at all.

5. The Father and Mother appear to have commenced a relationship in 2008.  It was characterised by family violence, the extent of which I shall return to when dealing with the evidence given at Court.  There was at least one period of separation.  From the Father’s affidavit material it would seem he was imprisoned in 2011 for a period of time (in his first affidavit filed 10 September 2017 he said this was some 12 months for assault related charges).

6. The Mother had the children in her care from birth until June 2012 when she placed them with the Father (whether he over held them or not is now neither here nor there).  They remained with the Father from June 2012 until February 2013 when the children were returned to the Mother.  He suffered a further period of incarceration in 2013.  From February 2013 to May 2015 the children were with the Mother at which point she gave them into the care of her own mother and Ms N.  This last action took place because the Mother was facing threats of serious physical harm from a former housemate and the Mother intended to get an Intervention Order against her.

7. Following release from jail, in 2014 (he says some six months after his release) the Father went to live with Ms S and their two children in (omitted) in Western Australia where they stayed for some time.  They returned to Victoria following the commencement of these proceedings and with the evident intention of participating in them.

8. Both Ms McGee, (as a juvenile) and Ms S have records of imprisonment.  I shall return to the Father’s criminal conduct when I deal with the evidence.

9. Both Ms Whyte and Ms N are in full-time employment and they look after the children, when in their care, between them.  The Father is presently unemployed although as a (occupation omitted), it is his opinion and that of Ms S that he will readily obtain work when this proceeding is concluded.  He does not pay any money by way of Child Support.  Ms McGee is unemployed and presently living in Department of Housing accommodation.  I will return to the nature of that accommodation once again when I deal with the evidence.

The Parties Affidavit Material

1. Any proceeding in which 56 individual items occupying three Court files have been engendered obviously has no shortage of affidavit material.  As earlier indicated, some of the affidavit drafting leaves somewhat to be desired although this is not a criticism but simply a reflection of the self-representation of two of the parties.  I do not propose to traverse the parties’ affidavit material at all although I should make it clear that I have read the file carefully and have regard to everything therein.  I will deal in passing with references to some of the materials where relevant.

The Professional Reports

Dr W

1. Dr W saw the Father in 2013 but that report is not, so far as I can see on the Court file (this case started in 2015).  His report annexed to his affidavit sworn 5 July 2016 is however before the Court.  Dr W noted that the Father had been under treatment from a psychologist, Ms C, and a psychiatrist, Dr O.  I note that at page 9 of 13 Dr W recorded:

   “On this occasion, his speech was not sprinkled with expletives, and there was no disorder of the form and flow of his speech and thinking.”

2. On the same page Dr W noted:

   “There was again an occasional limitation with regard to his ability to articulate his circumstances and feelings with a significant amount of eloquence, but on this occasion, he was reasonably forthcoming and expressing himself reasonably well.  There was no evidence of overgeneralising, rationalising, and idealising, as had been the case three years ago.”

3. On page 10 of 13, under the heading “Summary,” Dr W recorded:

   “Mr Edmonds is a 23-year-old man who was assessed by this examiner in February 2013, when he appeared to be suffering from a longstanding Attention Deficit Hyperactivity Disorder (ADHD).  This examiner was concerned about Mr Edmonds’ lack of ongoing treatment, unemployment, lack of solid relationship with his family of origin, ongoing family tensions, and problems with his current de facto partner. 

   Also of concern at that juncture was a history of personality difficulties and criminal behaviour, and ongoing conflict with his ex-partner, who was also the mother of his two youngest children. 

   Mr Edmonds acknowledged a history of assaultive and criminal behaviours, and a history of alcohol and substance abuse.

   At re-assessment, Mr Edmonds states that he has matured and changed his life markedly over the past three years.

   He reports that he is employed, in a stable relationship, and continuing to abstain from illicit substances, while engaging in healthy social relationships and activities, and appropriately caring for two children. 

   At interview, he presents as a reasonably plausible individual who acknowledges his past behaviours, whilst portraying himself as someone who has apparently sought counselling and made significant gains psychologically and socially, being free of significant psychiatric symptoms.”

4. On page 11 of 13 the report recorded, under the heading “Diagnosis”:

   “Mr Edmonds did not demonstrate any major cognitive deficits or signs of mental illness at interview. 

   Whilst he acknowledges an ongoing tendency to a degree of hyperactivity, this does not appear to be occurring at a pathological level, or to be associated with significant problems with attention concentration. 

   Prognosis

Therefore, at present, Mr Edmonds does not appear to be suffering from a psychiatric disorder, and his ADHD appears to be in remission. 

Mr Edmonds does not appear to require significant ongoing psychiatric or psychological treatments, although he may choose to receive counselling at times of life stresses.”

1. Having made several sensible concessions to the effect that it was for the Court to hear all the evidence and that he had not seen the other parties, the report relevantly noted:

   “Psychiatric disorder would not appear to be a significant factor with regard to Mr Edmonds’ ability to provide a reasonable level of positive parenting and have the children live with him or spend time with him unsupervised.”

Report of Dr D

1. Dr D’s report about the Mother is annexed to his affidavit, sworn 3 March 2017.  I note that Ms McGee says that she met the Father when she was 16 and he 15.  I note the reference to her juvenile criminal history.  I further note the historical and significant drug use that the Mother had engaged in.  At paragraph 96 the report reads:

   “In my opinion, based on the history obtained, the findings at mental state examination and a review of the supplied documents, the mother does not currently suffer from, and does not have a diagnosable psychiatric condition or psychiatric disorder.  The mother reports having depressive feelings over many years.  In my opinion, there is no diagnosable current major depressive disorder, or bipolar disorder currently present.  There is no history suggestive of a diagnosis of bipolar disorder, but the mother has had periods in the past where she has been depressed.”

2. At paragraph 100 the report continued:

   “I enquired in some depth, with regard to the difficulties in personality and psychological structure that the mother might have.  In my opinion, the mother has significant problems in her personality and psychological makeup.  Her problems reside within her personality, in her psychological make-up and show themselves in her impaired self-esteem and self-confidence.  Her coping mechanisms are poorly developed.  In my opinion, she does not have a superimposed psychiatric condition.  In my opinion, the mother has had difficulties in the maturation of her personality, and when stressed has demonstrated that she can become emotionally unstable.  In my opinion, there is significant impairments in the mother’s sense of self, and in her self-esteem and self-confidence.  Her capacity to manage difficult situations and challenging behaviours can be enhanced.  The mother will require significant support, supervision and skills based training, to assist her to become a more appropriate, adequate, protective and nurturing mother to her children.”

3. It should be noted that the Mother, shortly after giving the children to her own mother in (omitted) 2015, was admitted for six days as a voluntary patient owing to severe mental illness.

The Family Report of Ms G

1. Ms G’s report, which was tendered as exhibit ICL1, is dated 15 June 2017.  Ms G did her best to drag historical order from the chaos of multiple versions of events and I note at paragraph 9 she recorded the admission of the Mother to the psychiatric ward at (omitted) Hospital for six days following suicidal thoughts and deterioration in her mental health on (omitted) 2015.  Ms G also traversed the material from Ms J, to which I shall come shortly, and noted the positions of the various parties.  I have keen regard to Ms G’s report but it is not necessary to traverse it in great detail.  Points I would notice include paragraph 51:

   “Furthermore, Mr Edmonds expressed an ideological concern regarding a female same-sex couple raising the children.  However, he emphasised that he held no difficulties with each of the women personally and is grateful for the care they provide the children.  Philosophically, Mr Edmonds believed that the children should be raised by one of their biological parents in preference to same-sex maternal grandparents.”

1. In paragraph 62 Ms G recorded:

   “Ms McGee presented as an anxious and under-confident woman.  She tended to attribute responsibility to her current circumstances to the people around her demonstrating limited insight into how her behaviours had affected others, specifically the children.”

2. At paragraphs 105 - 107 Ms G wrote:

   “105.    The Department of Health and Human Services file confirms that the children have lived a chaotic lifestyle in the care of each of their parents.  Both parents have engaged in anti-social behaviours and due to their personal issues have been unable to provide adequate safety and stability for the children. 

   106.  Furthermore, the psychological assessments of Ms J confirm the social and psychological impact of the boys’ early experiences of inadequate care have had upon their long-term development and their emerging mental health issues.  The children have been diagnosed with anxiety, attention deficit hyperactivity disorder (ADHD), obsessive compulsive disorder (OCD) and varying symptoms of trauma, emotional and social difficulties.  Consequently, the children require strict routines and boundaries to maintain their sense of safety and security. 

   107.  It appears that the children have been living in the primary care of Ms Whyte and Ms N for over two years which has been the longest period of time they have remained in a stable and consistent and safe home.  Ms Whyte and Ms N have been working closely with the children’s early learning and mental health professionals to address their social and emotional difficulties and the children appeared to be happy and thriving within the care of the maternal grandparents.”

3. Ms G noted that while each parent sought the children live with them, they had not raised any safety concerns for the children with Ms Whyte and Ms N.

4. Ms G went on to recommend that the children continue to live with the Maternal Grandparents and spend time with their parents and half-siblings.

5. Finally, I should note at paragraph 113 Ms G recorded:

   “It is likely that both Ms McGee and Mr Edmonds may seek additional time with children in the future.  However, this assessment emphasises the importance for the children to remain living in a single and stable household which supports the children spending time with each of their parents rather than attempting to dissect the children’s time between three households to meet the needs of the adults involved.”

The Email from (omitted) - Dated 11 August 2016

1. This email is annexed to Ms McGee’s affidavit filed 12 August 2016 as 2.  While it is a hearsay document, it records the Father saying to an intake worker called Ms C on 1 August 2016 when the Father answered his phone, following various missed calls:

   “he had ‘better fuckin’ things to do with his time than speaking to her on the phone and talking to her about his children.

2. He also said that she did not understand that:

   “he was working as hard as he could to put food on the table for all the fuckin kids’ he had to support.”

3. This email was the subject of evidence from the Father during the hearing to which I shall come.

The Reports of the Family Contact Centre

1. The report from Family Life to the Court dated 25 July 2017 records visits by the Father between 8 January 2017 and 25 June 2017.  It should be noted that the report records generally satisfactory and happy contact between the Father and the children.  I note that the Father on a number of occasions failed to wash up when he left despite being on notice that he should do so.  It is perhaps appropriate to record, while noting the generally good contact between the Father and the children, at page 16 the report said:

   “The workers noted that Mr Edmonds failed to follow their directions at times.

   The Service is concerned with regards to Mr Edmonds’ consistency in attending the visits, as he attended only 3 supervised visits in the last five months.  Mr Edmonds attended the first four scheduled visits, however, following this he cancelled 3 out of 5 scheduled visits, due to being unwell and car difficulties.  Mr Edmonds did not provide the Service with medical certificates.

   The Service addressed these concerns with Mr Edmonds, advising him that the Service expects the parents to be consistent in attending the Service as it’s in the best interests of the children.  Mr Edmonds attended the next visit, however, did not attend the following two visits:  on 9th July, when the Service attempted to contact Mr Edmonds to advise that the Service was not open due to staffing issues, they were unable to reach him.  Later Mr Edmonds stated that he was not going to attend this visit.  Mr Edmonds confirmed that he was attending the next scheduled visit on the 23rd July, however he cancelled the visit on the day as he did not “have much work”.

2. The Service noted that he could be offered a further six visits provided he did not miss any and that should he miss any through medical issues, he was to provide a certificate.  Failure to do so would lead to withdrawal of the Service.

The Reports of Ms J

1. Ms J’s first report (exhibit A1) is in a letter to the Independent Children’s Lawyer dated 22 April 2016.  In reporting on X, her assessment was:

   “A Spence Child Anxiety Scale completed by Ms N indicated clinical levels of obsessive compulsive disorder, separation anxiety, general anxiety disorder and social anxiety.”

2. An assessment in relation to Y was:

   “A Spence Child Anxiety Scale completed by Ms Whyte indicated clinical levels of obsessive compulsive disorder and separation anxiety, and elevated levels of general anxiety disorder.”

3. Under the heading “Recommendations” Ms J reported:

   “I intend to continue seeing X and Y on a frequent basis to assist in their development.  Due to the trauma the boys have experienced, I expect progress will be slow.  Further therapeutic work is needed to explore their worries, assist them to develop coping strategies and to build relationship skills.  As X and Y are showing the significant impact of a trauma history I believe that their sense of safety should be a primary factor in their future care.”

4. In her second report dated 5 February 2017, when she repeated the Spence Children's Anxiety Scale Ms J found that X’s general anxiety had increased to a clinical level suggesting that his worries had increased since his initial assessment.  So far as Y was concerned this revealed a decrease in his physical injury fears to a normal level and an increase in general anxiety to a clinical level.  Ms J assessed that the increased general anxiety for Y suggested that his worries had increased.  His lack of performance at school was highlighted as a concern for his future learning.

The Submissions Made and Evidence Given at Court

1. It should be noted that this recitation is taken from my notes and is not in any way a transcript.  It records aspects of the evidence that I found to be of significance.

The Opening of Ms Whyte

1. Ms Whyte indicated that the interviews for the family report had taken place in May 2017 and the Father had missed appointments with the children after that.  She wished to keep the Mother’s time each alternate Saturday from 11.00 am till 5.00 pm and the Father from the following Sunday from 1.00 pm till 3.00 pm.  There should be no overnight time for at least 12 months until the children’s mental issues were sorted.  The Contact Centre should continue for at least six months and the younger half-sister, A, should be introduced through professional assistance.

2. Ms Whyte adopted her affidavits as true and correct.

Ms Whyte under Cross-examination by Ms McGee

1. Ms Whyte said she had changed her position because of her daughter’s lifestyle.  She was never at home.  X was not at kindergarten and was sleeping all day.

2. It was put to her by Ms McGee that she now had public housing, she had another daughter, she was free of drugs and had no mental illness.  Ms Whyte replied that the Mother was still not at home.  Mental illnesses do not go away.  It is only a two bedroom unit and in addition to C there is a 16 year old living with her.  The Mother had done 90 per cent of what was asked but the mental illness was not being treated.

Ms Whyte under Cross-examination by Counsel for the Father

1. Ms Whyte said she had nothing against the Father but did not like the things that he had done.  The children enjoyed visiting their Father.  She took no issue with the family report observation that the children had a good relationship with their Father.  She disagreed with the recommendations of the family report.  At the time of the report interviews he was showing up but he then ceased.  After the first visit the children just said they had fun.  They are not good at saying what they do, it is the way they are.  At her house the boys share a room because this is what they want but they have separate beds.  There are no photographs of the two parents.

2. She has never asked for photographs but none have ever been provided.  The boys sometimes fight.  They say “I love you” to everyone because they are very loving children.  They call Ms Whyte “Ma”.  Ms Whyte said, with emphasis, that it was important to have the Father in their lives but only if he was going to turn up.  The boys do not mention the Father between visits.  They know they see their Mother and Father each alternate weekend and this is their routine.  Ms Whyte says: “It’s daddy’s day today.”  Both children are excited.  The children have never said they did not want to see the Father.

3. She had told the boys that they would not see their Father after the judgment in July 2017.  They were a little bit upset.  They protect each other.  Y is the spokesman.  X is quieter.  She told the children “The big people said that you won’t see dad”.

4. The children had no memory of the Father before the visits.  She got a picture from Facebook and showed the children his profile.  She said if the Father wanted her to have a photograph of him in her house he should give her one.  The children do not talk about the Father after their visits.  The Father needs further supervision.  He has only seen the children for a few hours.  He failed to bring lunch.  He failed to bring a game that Y wanted for two visits.  She sought supervision for at least six months.

5. When it was put to Ms Whyte that the Father was seeking to introduce Ms S and A, Ms Whyte had no objection.  She was not prepared however to leave the timing of this to the manager of Family Life.  She said it needed to be at least six months.  She said the children need solid consistency.  They love their Father but they have not seen him long enough to have a good relationship with him.  The children love everyone.  She said she wanted the Father to prove to her that he was going to come every week.  She is not seeking to string the Father along.  The Contact Centre is a controlled environment.

6. Ms Whyte said that the Father did not like her.  He fails himself.  Supervision is necessary.  She would not undermine the relationship of the children with their parents.  She wanted (omitted) Mental Health Service involved.  She was not trying to set the Father up for failure.  If the Father failed to come on two occasions then time should cease.  The children have mental illnesses and so do the Mother and Father according to the professionals.

7. Ms Whyte said she needed to know that the Father would not come in and out of the children’s lives.  She had not been given anything to sign about A and Ms S.  She works full-time and looks after the children full-time.  The children were not happy when C was born and won’t be happy with A.  This is because she will take time from them.

8. Ms Whyte confirmed that supervision should continue for six months and that their psychologist, (omitted) Mental Health, should say when overnight time would be acceptable.  (omitted) Mental Health know the children really well.  The boys don’t cope with change.  She was not trying to interrupt the Father’s time.  Ms Whyte was not sure if the boys could cope with alternate Saturdays and Sundays.  They had never been to the Father’s house.  He lives in the (omitted) and the children are not allowed to go to the (omitted) at all because this was where their trauma occurred.  She has not shown the children photographs of the (omitted).  The Mother is not allowed to take them to (omitted) either.

9. Ms N takes the children to appointments if she is at work.  Y has been tested at (omitted) Mental Health Service and is now medicated for his anxiety.  X is on the waiting list for (omitted) Mental Health Service.  If Y does not take his medicine he becomes erratic and becomes very anxious and violent.  Y is very good at school academically but his behaviour is not good.  X will be in grade 2 this year.  Ms Whyte would need to prepare the children for overnight time.  She is never negative about the two parents.  She says: “You’re going to see daddy today.  You’re going to have lots of fun.”  The Father is not much talked about in her house.

10. Ms Whyte says she had a love/hate relationship with her daughter.  She said it was not true that she was bullying or controlling.  Her relationship with her daughter has its ups and downs.  She does not see or speak with the Father.  She asked rhetorically “Why do I need a relationship with him?”  She will do what she has to do for the children.

Ms Whyte under Cross-examination by Counsel for the Independent Children’s Lawyer

1. Ms Whyte emphasised that what she wanted was consistency.  She wanted the Father to turn up when he was supposed to. She conceded that she had cancelled two visits.  On one occasion Y was in hospital with gastro and on the other she had a wedding which had been previously booked.  The Father had missed a visit in April, but not provided a doctor’s certificate.  His Facebook entry said he went to Sydney to buy a dog.  This really annoyed her.

2. Ms J is the children’s counsellor.  Y is at (omitted) Mental Health Service and sees somebody called Ms K, but these people change from time to time.  She or Ms N accompanied Y to (omitted) Mental Health Service.  Y is at (omitted) Mental Health Service because of his anxiety and resultant behaviour.  He is very confused.  Y gets very angry and frustrated and lashes out.  He is a perfectionist.  Y attends (omitted) Mental Health Service once per week.  (omitted) Mental Health Service has been to his school once.  Y needs structure.  He gets breaks to relax him and now has a teacher’s aide.  X is not seeing anyone and (omitted) Mental Health Service tells them to keep him in a routine.

3. The boys were a little bit sad when they did not go to the visits that the Father cancelled.  On one time they went to the Contact Centre but the Father did not turn up because his car was broken.  The worker told the children this and Y was a bit disappointed, but X was not.

4. The only therapeutic intervention the boys have is (omitted) Mental Health, although there is a school counsellor.  (It emerged that there had been some counselling about broken families).

5. The children have been with Ms Whyte since 2015.  They were feral when they first came and did not know how to eat properly.  Their behaviour was horrible.  They had tantrums and kicked and hurt people.  She got X and Y into the (omitted) and got a referral to Family First.  She instituted (omitted) lessons.  It took a good 12 months for the children to improve.  Y now knows to do breathing exercises when he is disturbed and X is better also.  The children need to know where she and Ms N are at all times.  She has to speak to them on the phone.

6. Ms Whyte has not spoken to the Father since 2012.  The children were returned to her in 2015.  After the court case in 2012 she did not speak to the Father.  She was aware he had gone to Western Australia.  She knew he was going to prison after the court case in 2012.  She does not know that much about the Father and has had no real contact with him outside of Court cases.

7. She has seen the best and worst of the Mother.  It ended up with her caring for the children.  The Mother rang to tell her that her housemate and friends had threatened her.  She told Ms McGee to bring the children to her and get an Intervention Order.  The Mother had taken steps to improve her position.

8. When asked what her concerns were about the Mother, Ms Whyte said that the Mother was not medicated.  C is coming up to two.  She is not aware of the Mother’s treatment regime.  Ms McGee tells Ms Whyte she is taking her medicine, but is not forthcoming about her treatment.  She has a Housing Department unit in (omitted) with C and an older child.  The Mother has not asked for overnight time.  Ms Whyte would be concerned about overnight time because the boys are not ready.  This is because of their anxiety.  (omitted) Mental Health say they are not ready.  It is only a two bedroom unit.  They are still trialling Y’s medicine.  His problems are more at school and that is where he lashes out.

9. Ms Whyte said the children love their Mother and speak to her three times per week at 6:00 pm on Tuesday, Thursday and Sunday, plus which they see her every second Saturday.  Ms Whyte has had more fights with the Mother more recently than previously.  She said she was hard on the Mother.  She always has been.  Sometimes they used to clash.  She wants her to be a good mum.  Ms Whyte said she did what is best for the kids and wants consistency from the Father.  She wants supervision in a controlled environment.  The Father does not like her.  She wants the Father to turn up for every visit for six months.  The children like routine.

10. The Father used to have a temper.  Ms Whyte is scared that he might take off with the children despite Court orders.  She does not know whether the Father could handle the children.  Eventually overnight time would be okay if everything went well.  She needs to know the boys are okay with that.

11. The Mother was asked about her prohibition on the children visiting the (omitted).  She said that the children were there first.  It seems to bring their trauma up.  There is a certain road of which the children are scared because they are scared of the tree.  This, as Ms Whyte understood, arose because of an instance when the children were with the Mother driving at night.  Ms J had recommended not to take the children to the (omitted).

12. She has known the Father’s partner as a teenager.  She spoke to her outside the Contact Centre.  The partner has been in jail, but Ms Whyte did not know what for.  She thinks the Father lives at (omitted).  She has not had his phone number and had no information about him in the last six months.  She has been in a relationship with Ms N for 12 years.  She sees Ms N’s brother, father and other family, but the children do not see any of Ms Whyte’s family.

13. Ms Whyte had nothing to add when given the opportunity to re-examine.

The opening address of the Mother

1. Ms McGee confirmed that she has D in her care.  She lives in the lounge.  There is a room available for the boys.  C, her 18 month old child, sleeps in her room.  There are brand new beds for the boys.  X had brought up staying overnight with her on the phone.  The Mother’s prohibition on (omitted) would exclude her.  The children are excited about where they used to live and have no trauma in relation to (omitted).

2. She has enrolled to undertake a Parenting Course.  This is through Anglicare.  Her medication has now dropped and she has a mental health plan in place.  She asked the Grandmother to look after her children and shortly thereafter had a suicide attempt which led to her hospitalisation in 2015.  She is doing her best and would love the children to live with her.  She does not feel like a Mother to her children.  The children ask her questions, but she cannot give them an answer.  It should be noted that Ms McGee was labile while making these submissions.

The Mother under cross-examination by Ms Whyte

1. Ms McGee confirmed that she spoke with Anglicare three months ago.  There was no course available earlier.  D sleeps either in the lounge or on the floor in the boys’ room with a mattress.  D is enrolled in school.  X says he wants to live with her.  Ms McGee replied, “I don’t want to talk to you about this”.  She always wanted the children to be with her but it was difficult.  She knows the children are safe and in a routine with Ms Whyte and their health is looked after.  She obtained her new mental health plan three weeks ago when she went to the doctor and she stopped her medication because she was pregnant.

The Mother under cross-examination by counsel for the Father

1. The boys sometimes bring up (omitted).  X said a week ago, “I really miss my old house and wish we still lived there”.  X spends most of his time cuddled up with her.   She was living with the Father when X was born and moved to her mother’s thereafter.  The Father went to jail.  There was a lot of alcohol consumption.  Then she became pregnant with Y.  A Court case followed and she got custody of the children.  She had lived in three or four houses in (omitted) and X remembers (omitted).  The house is near Granddad’s house.  X brings this up often.  X has said he wants to come and live with her.  Both children want overnight time.

2. X is really good with C, but Y has a lot of trouble.  He does not like her because she is boring.  She also reduces Y’s time with her.  A few months ago Y was nasty to C and hit her.  She rang the Grandmother and they spoke to him and she has had no problems since.  X is constantly cuddling C, and is very protective of her.  Her relationship with the Father is now better.  They communicate on occasions and this started a few weeks ago.  Most of the telephone conversations are with Ms S.  She intends to speak to Ms S and Mr Edmonds about C meeting A, their child.

3. I would interpolate and say it is clear from the evidence that the contact is predominantly between Ms McGee and Ms S.

4. Her father works full-time at (omitted).  The relationship between her parents is very strained.  Her brother spends time with the children.  She previously had an Intervention Order against the brother, but he has seen the children since the Intervention Order ceased.  She has four half-siblings and one full sibling.

5. Ms McGee’s time is unsupervised.  X said last weekend, “I hope to see Dad tomorrow”.  The children never used to ask about their Father or speak about him.  Since the reintroduction they know who he is.  She is aware of the children’s problems and issues.  They do not have episodes with her.  There are tantrums and fights, but they are brothers.  If it gets too bad she rings her mother and asks what to do.  X is hard to reason with.

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

1. There was family violence during the relationship with the Father.  The worst was when the Father picked her up by the leg and her hair and threw her on the floor.  There was shouting and yelling regularly after the first seven or eight months.  The Mother used methamphetamines at the time.  This began when the children went to the Father and went on until the Court case was over.  It stopped when the children were returned to her.  She drank a lot of alcohol in 2011.  The violence stopped when the Father went to jail.  The Department of Health and Human Services were involved with the family, but they always close their case.

2. When questioned about Court orders in 2013 returning the children to her, the Mother said that she thought that the Father was in jail for nine months for crimes of violence.  She only heard dribs and drabs about this and did not speak with the Father about it. When questioned about the incidents in May 2015 the Mother confirmed that she does not want the children exposed to violence.  A housemate had threatened her.  She obtained an Intervention Order for 12 months against her friends Ms A and Ms R.  She now has a better relationship with Ms R.  She gave the children to Ms Whyte because of the threats.  She has not used drugs between 2013 and 2015.

3. The Mother had mental health problems in (omitted) 2015.  She was depressed and the boys were taken from her.  She was not on medication.  She was admitted to the hospital for six days.  At the time the children were to return to Ms Whyte in 2015, Ms McGee’s home was not clean.  She was on the pension at the time.  The children had everything they needed.  She used to have a cousin come to babysit the children on Fridays so that she could drive to Melbourne to be with her friends.  She would pick up her friend at 10.30 pm with the children until she kicked the friend out.

4. The Mother had conceded that she had filed an amended response in December 2016 seeking sole parental responsibility and that the children live with her.  She was only on a mental health plan at the time but not seeing any medical practitioners.  She does not know Ms J but has read her report.  She said some things should not be asked of a child of seven years.  Asking what annoys you about your Mother is not proper.  Words were being put in his mouth.  She had raised this issue with her lawyer.

5. Ms McGee accepts the children have anxiety.  When they are with her it is not as severe as it otherwise is.  C is 18 months old and her health is great.  She is solely responsible for C and there has been no DHHS involvement.  She has family support workers from Anglicare and a worker from the refuge and also receives the assistance of a financial counsellor.  She sees these people weekly.  She also sees a mental health worker weekly.  She went to her GP for a mental health plan about three weeks ago because she was getting upset all the time and getting anxious. 

6. She was prescribed Zoloft 50 milligrams, but has previously been on 100 milligrams.  She has a two bedroom unit in (omitted).  She plays (hobby omitted) and has training one to two times per week.  D is with her full-time on an ongoing basis as approved by the DHHS.  D sleeps on a mattress in the living room or between beds in the boys’ room.  D is in Year 11 this year.  D came into her care before DHHS involvement because she was unsafe.  The assistance of a youth worker has now ceased.

7. Ms McGee’s relationship with her brother is now good since her child, C, was born, but before that was bad.  She sees him each week.

8. The Mother asked the Grandmother to help in May 2015.  The children are safe with her and well-cared for and have a strong relationship with her.  Ms Whyte is very demanding of her.  Ms McGee said it is all about control.  She spoke with the Father before Christmas.  She rang him, which was the first time for a long time.  She then clarified and said that they drove past each other on the highway and stopped and talked for about one and a half hours.  They talked about the need to be civil.  They both just wanted to be fair.  She told the Father, “I don’t want anyone to miss out”.  They were just talking about what is best for the kids.  They just need to grow up and start acting like parents.

9. The Mother conceded that she had sought to dismiss the Father’s response in 2016.  The Father had abandoned the children and gone to Western Australia.  She signed orders for the Father to have no time.  When she spoke to the Father she did not criticise Ms Whyte.  The children are safe where they are.  She had said this to the Father and he did not oppose it.  She would like the children with her, but it won’t happen.  Ms Whyte will make excuses to prevent it.  She had a three bedroom house and the children were not allowed to visit.  If D was not there, there would be another excuse.  (This is part of what Ms McGee described as a “domino effect”).

10. I should interpolate and say that I have not recorded the numerous complaints that Ms McGee made in this passage of her evidence to the effect that the Grandmother would obstruct her having the children with her, whether permanently or otherwise.

11. Ms McGee conceded the children could not handle living with her straightaway because of their anxiety.  If transitioned over time it may work.  She said, “I get six hours per fortnight”.  Transition would happen however long it may take.  The children could go to the same school.  She would facilitate (omitted) Mental Health.  She would quit (hobby omitted) because the children are more important.

12. The children do not have meltdowns in her care.  They cry, yell and fight.  They crack the shits and growl at you.  She has smacked the children on the hand and bum when they were younger.

13. The Mother confirmed that she had told Ms G (paragraph 72 of the Family Report) that she was distressed that the children see her own Mother and Ms N as their family as she believed the children should see her and C as the family.  X had drawn a picture of two houses.  He did not have a concept that she was his family.  He is not living with her.  She does not know what the children think.  She does not know what they are told.

14. The children have told her they wished to live with her and do so all the time.  They say, “Mummy, when can we come here?” and she replies, “You can’t”.  She said many times she breaks down with Y and he becomes very upset.  The children have spoken about the Father after they see him and X said, “I hope I see Dad tomorrow” and when Ms McGee replied, “I don’t know”, X said, “I hope so”.

15. Ms McGee has known the Father’s partner for a long time.  She has spoken to her three times since the conversation at the roadside.  They communicate by text, Facebook and phone calls.  She gave Ms S photographs after Christmas when Ms S came over for about an hour.  They did not discuss the Court proceeding.  At the time the Father was babysitting nine children who are all school friends.  The Mother’s mental health plan means that she is seeing a worker as well as Ms K.  They will assess whether she needs further treatment.

16. When taxed with paragraph 83 of the family report (in which the children indicated they wished to continue to live with the Grandmother and might have been exposed to their Mother’s views regarding a progression to overnight time) the Mother said the children ask her questions.  The children say what people want to hear.  She does not accept that the children do not wish to move home to live with her.

17. Cross-examination by Ms Whyte produced nothing of any moment.

The Mother in re-examination

1. The Mother said she had made several attempts to have more time with the children.  She has not taken drugs in the last three years.  She has no mental health problems and has improved her life.  She said she had matured a lot and people do change.  Anxiety is still affecting her.  She barely leaves C.  She is scared that Ms Whyte will take C from her.  Six hours per fortnight is not a lot.  She also raised the fact that there has been no material filed by Ms N.

The case of the Father

1. Counsel’s opening concentrated on the orders that the Father was seeking.  Those submissions, helpful as they were, have been somewhat overtaken by the march of events.

The Father in evidence-in-chief

1. By leave, a number of questions were permitted.

2. When asked about the assertion of Ms Whyte that he had gone to Sydney for a dog instead of attending the visit, the Father said this was a Monday or a Tuesday.  He is horrible with dates.  He has no relationship with the Grandmother.  He first met the Mother (and I would infer Ms Whyte also) when he was about 16.  He does have a slight temper, but has learnt to adjust differently.  He had undertaken courses in prison.  These were in relation to self-control, work ethics and the like.  The Grandmother’s assertion that he would take off with the children is made up.

3. He had gone to Western Australia and felt that the Mother and Grandmother did not want him around.  There were better opportunities for him and his family in Western Australia.  He had not abandoned the children.  He had no time with the children to start with and was in Western Australia for two and a half years, during which he had no communications with the children.  He came back after Ms Whyte telephoned him.  Ms Whyte told him she was going for part-custody and would he like to be involved and had asked that he should come to Court.  He did so, and subsequently left Western Australia and came back to Victoria.

4. The children were timid to begin with, but over time became attached and emotional.  They understood who he was, but did not know him well.  Every visit was excellent and the children call him Dad.  He had been imprisoned in 2013 for theft, threats to kill and kidnapping, together with numerous assaults.  It was a nine month sentence.  He had a record before that and had spent at least two and a half years in prison in total.  He was predominantly in jail between the ages of 16 and 18.

5. His contact with the Mother resumed recently when the Mother passed his car on the highway and she flagged him down to give him school photos.  They spoke about the children and their behaviour and their welfare and what should happen with them.  They agreed the children were safe with Ms Whyte and Ms N, but disagreed with this outcome.  He is communicating quite well at the moment with the Mother.

6. There are lots of children in the house over the holiday period.  The child, B, is nine years old.  If overnight time was ordered this is a large house with a very large backyard.  It has four bedrooms, one study and two lounge rooms.  It is a rental property at $300 per week.  There are separate bedrooms for each child and there would be a spare bedroom for the boys.  There is also a spare study which is a bedroom at the back.  He had never seen the children’s school reports before this day – (they had been produced by Ms Whyte pursuant to an undertaking to do so) - and these were tendered as exhibit K1.  He would like to be involved with the school, but cannot read or write.  He has photographs to give to the Grandmother.  He tendered multimedia texts, exhibit K2.  He said there was no way he would let this happen again and also he has no outstanding criminal charges.

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

1. The Father indicated that he had read the family report.  He had skimmed the Contact Centre report.  He had read his affidavits, but did not remember everything.  His behaviour in the past was not consistent with being a good parent.  He had been physically violent to the Mother and had verbally abused her also.  He had also used drugs and had a criminal past.  He was convicted of grievous bodily harm at 16 and this involved several victims.  A lot of it was self-defence.

2. In 2012 the children came to live with him.  The criminal sentence in 2013 followed was a lengthy case which started before the children came to live with him.  The victim was a close friend.  He had learned from his mistakes.

3. When he got out of jail he had spent some time with the children, but did not telephone the Grandmother.  He had tried to.  He spent time with the Mother.  He does not have a stable relationship with the Grandmother.  The Mother was hesitant when he got out of jail.  He had not seen a lawyer and did not think he needed to.

4. He said, “This was a lot to do with ourselves”.  The children should not be put through it.  It is all about power over the children.  He went to Western Australia with Ms S, B and A because there were better opportunities to raise a family.  They had no telephone contact with Ms Whyte and did not know that his own parents were speaking to her.  He did not speak to the Mother either.  He had no police problems in Western Australia.

5. Ms Whyte rang to tell him the children were in her care and she was going for part-custody.  He spoke to her politely and this was in November 2015.  He was cross-examined about an instance in August 2016 involving the intake organiser at the Contact Centre.  She had tried to contact him twice.  He had tried to call her back.  The worker told him that she would close the file.  He was upset.  He, nonetheless, denied having an argument with the worker and denied saying, “I’ve got better things to do with my time”.  He said he could not control himself.  He recalled a slight altercation.

6. I would interpolate at this point and note that it is clear that the Father continues to have a temper and I have no doubt whatever that he did, in fact, do what was recorded in the hearsay note of the Contact worker’s evidence to which I have earlier referred.

7. When cross-examined about non-attendances at the Contact Centre the Father said that he was told the rules and regulations.  He was told that he should have had a medical certificate about the failure to visit on 15 March 2017.  This took place on a weekend, so he did not bother.  In respect of the failed visit on 30 April 2017, the Father said he fell off a waist high scaffold.  There was a lot of swelling and bruising on his face.  He did not, however, go to a doctor.  The accident took place on the worksite.  His face was gruesome and he was concerned the children would be anxious because he had a bright red eye.

8. It was put to him that on 29 April 2017 he might have been in New South Wales and he said that on the 30^th he was at home on the couch.  He said the Grandmother and he struggled to communicate.  He said he felt incriminated by the way they talked to him.  On 14 May 2017 the visit did not proceed, although the children went to the Contact Centre.  The worker called him and he told her that he had car issues and could not get there.  He had tried to get to the Contact Centre.  He had tried to get a lift.  The Contact Centre is somewhere between one and a half hour drive from his home.  He was stuck between two towns.

9. When cross-examined about the failure to attend on 23 July 201, the Father said he had called the Contact Centre at 10.40 am when the time was scheduled at 2 o’clock.  He did not have enough work and his car was not working and he was struggling financially.  He can’t keep a job because of the Court case.  He said he had read the report by Ms J.  He said a lot of it was played on by Ms Whyte.  He believed Y had ADHD from birth.

10. When cross-examined about the visit on 28 May 2017 he said he had brought snacks, but whatever he brought was never good enough for Ms Whyte.  The Contact Centre had told him that Ms Whyte was not happy about the food that he had brought so he simply stopped.

11. When cross-examined about his non-attendance at the hearing of the trial on 31 July 2017, Mr Edmonds gave unconvincing, waffling explanations which, essentially, sought to put the responsibility upon his former solicitors.  He said, however, that he knew the trial was coming up in August and came to Court on 1 August 2017.  After he learned on that day that the matter had proceeded in his absence the previous day he went to his solicitor straightaway.  The application to set aside the judgment did not happen as quickly as he would have wished.  The delay was by his solicitors.  He was aware of the orders made on 13 November 2017.  He had read the orders and knew he was supposed to enrol at Family Life (omitted).

12. Following the luncheon adjournment the Father was further cross-examined.  Police records from 2014 were put to him.  These showed a police attendance at his home in Western Australia.  He said he was not aware the police attended.  He was not over-surprised.  He said that he had become angry and smashed the TV by throwing a fishing reel which hit it.

13. The Father confirmed he has now enrolled at Family Life at (omitted) and said this took place very early in the piece.  He took the form into his solicitors and they faxed it through.  In between, however, it was lost, but he has subsequently completed the relevant documentation.  When it was put to him that the (omitted) Contact Centre had only received his documentation last week, he said it was his fault and his solicitor’s.  He did not know how to file it.  He did not remember correspondence from the Independent Children’s Lawyer nor recall speaking with his solicitor.

14. The Father confirmed that his residence is a private rental which he has been in since he returned to Victoria.  A, who is three (her real age is four, this is a surprising error) is in day care and has a paediatrician.  The children and Ms S have a doctor, but he is not registered with any medical practice. The Father said that in some ways he understands he has missed a fair whack of the children’s lives and that he is to blame.  He takes the majority of the blame.  The children are safe with Ms Whyte with whom they have been for three years.  She looks after their physical needs.  A Grandparent, however, cannot fulfil all the emotional needs for a child.  A Mother and Father should raise the children.

1. When paragraph 51 of Ms G’s report was put to him (an ideological opposition to same sex parent bringing up children) he said he had concerns about same sex parents.  He considered he had said this to Ms G.  He said there needs to be a male role.  He is not spending enough time with the children and the children would be distraught if he dropped off the scene.  It would mess with their lives for a lifetime.  He now has a 2017 (clarified in re-examination as 2007) car and will be able to get work when the case is finished.

The Father under cross-examination by Ms Whyte

1. The Father confirmed that he has photographs taken for the children.  He has not felt allowed to send Christmas cards and presents.  When taken to paragraph 54 of Ms G’s report (which asserted that the Father had made an appointment to see X’s school teacher) he said he did not know this.  He said he must have been misunderstood.  He had not accessed school reports.  He conceded that the 14 hours he had spent with the children was not a long time.  He would be happy to go back to work when the case is finished.

2. He confirmed that the children were at school when he spoke with the Mother for one and a half hours.  He confirmed that Ms Whyte had asked him to bring fruit to his time with the children.  He had only brought one bag of lollies over the 14 hours.

The Father under cross-examination by Ms McGee

1. The Father conceded that the children had experienced the arguments between them.  He plans to return to work.  A is three years old.  She is a ratbag and has issues.  He has not lost his temper for a long time.  B is very excited about meeting X and Y.  He was not sure about A.

The Father in re-examination

1. The Father said that he was distraught to lose the children when he went to prison.  He has no say about the children.  The Grandparents are feeding on that.  His car is a (omitted) bought six months ago.  It is subject to finance that his partner pays for.  He is opposed to a same sex couple raising a child.  A has speech therapy and has behaviour problems.

The evidence of Ms S in-chief

1. Ms S has known Ms Whyte since she was 11 years old.  Since the previous Court case she has not spoken to Ms Whyte.  Before that things were nice at changeover.  They would chat for 15 to 20 minutes.  The Father and she came together in January 2012 when X was one year old.  They had X on a regular basis and then Y was born.  They had him too.  She last saw the children when A was two weeks old.  A was born on (omitted) 2013.

2. She has known Ms McGee since they were 11.  They were school friends.  Their relationship is now a work in progress.  There is a bit of tension.  They communicate by text, Facebook and phone calls.  She went over to get the children’s photographs.  She is the go-between.

3. When questioned about her relationship with the Father she said, “It is a pretty good relationship”.  They have their ups and downs.  She herself has been in prison for assault for four months with a 12 month bond in 2012, but has had no issues since.  The Father has come a long way with his temper.  When asked about the incident in Western Australia she recalled it.  She had not told the Father where she was going and went to drinks with his family.  She had had arguments since.  Nothing has been broken.

4. A is a difficult child and under the care of a paediatrician.  She has a speech therapist and is understood to have mild Autism.

5. Other children regularly come over.  A might get a smack on the hand from either her or the Father.  The Court case drags the children in.  They had returned from Western Australia and it would be a waste of her time if the Father did not go through with it.  She had told him this at the start.

Ms S under cross-examination by counsel for the Independent Children’s Lawyer

1. Ms S has seen the children several times since 2013 but not spoken to them.  They had Y from the age of four months and she was the primary carer in 2012 to 2013 because the Father was working.  In 2017 she drove the Father to the Contact Centre.  Three to four times were missed otherwise she took him each time.  She said her household was built around routine.  The Father can always find work.  There is work waiting for him when this case is over.

2. She last spoke to Ms Whyte the previous Sunday.  She had let her know how the boys went.  She offered to send photos.  In the last few weeks the Father and Ms Whyte were doing better but it was not good before that.  She was present at the road-side discussion between the Father and Mother.  It was 20 minutes to half an hour.  They talked about the children and school photos.  The Mother was not happy that the children were with Ms Whyte.  She said it was unfair that one child sits on the floor.  X is favoured and Y is pushed aside.  Ms S told Ms McGee that it was not her business.  The Father does not want to be involved in the dispute between Ms Whyte and Ms McGee.  The Father’s problems with Ms Whyte are about past things.  He says Ms Whyte is rude.  Each can be as blunt as the other.  The Father is trying to control his temper.  In the past he would be violent.

3. When questioned about the incident in Western Australia Ms S said her door was broken and her TV also.  A neighbour called the police.  The police spoke with her a couple of days later.  She told the Father the police had been around.  This was no different to anyone having a bad day at work.  It was a 45 degree day and the Father was exhausted.  She had already had the abortion referred to in the police report.

4. Notwithstanding these answers when pressed Ms S accepted that the police record was accurate. Since that time she has only had arguments with that Father.  They bicker.  Sometimes they scream at each other but not when the children are there.

Ms S under cross-examination by Ms Whyte

1. Ms S confirmed that there are no issues between them.  They are always polite.  She has no issue with Ms Whyte.  She got photographs of the boys when she asked for them.  A is daddy’s girl but more clingy to her.  There will be no problem having Y and A at the same time.

The submissions of the parties

1. It is not generally my practice to record the submissions made by the parties but given the nature of this dispute and the comprehensive submissions made, most particularly by the Independent Children’s Lawyer’s counsel, it is in my view appropriate to do so.

The submissions of counsel for Independent Children’s Lawyer

1. Counsel relied upon the expert reports.  It should be noted that at the commencement of the proceeding, counsel for the Independent Children’s Lawyer informed the Court that the Independent Children’s Lawyer had written to the parties putting them on notice as to whether or not they wish to have the experts attend for cross-examination.  None of the parties had indicated any desire to do so.  Counsel’s assertion to this effect was not gainsaid by either of the self-represented parties or by counsel for the Father.  Accordingly I am entitled to give appropriate weight to the unchallenged expert evidence.

2. Counsel submitted that in May 2015 the boys came into Ms Whyte’s care.  This was a good thing for the children.  They have consistency and their needs are met and the evidence suggests that they are thriving.  Before that they were in an environment in which there was drug use, itinerant housing and mental health problems.   There had been two changes of primary residence.  The only stable residence the children have had is with Ms Whyte.  There is stability, safety in the Grandmother’s home.  The children, it was submitted, should stay there.

3. There is more conflict between the parties than had been thought.  The Father said this was a power struggle but the Court should not accept this.  Ms Whyte stepped into the role in 2015 because the Mother asked her to take the children.  Ms Whyte knew very little about the Father up until then.  It is reasonable for her to be sceptical of the Father.  She is only concerned as a parent.  The reports of Ms J show that the children are anxious and need stability.  Ms Whyte is not seeking to disrupt the other parents as they assert.

4. Family violence had clearly occurred during the relationship between the Mother and the Father.  The Grandmother had a good capacity to execute parental responsibility and will forment good relations but notwithstanding that her approach is demanding.  There are problems of communication between the parties.  It is appropriate that Ms Whyte has sole parental responsibility with a requirement to consult on important issues.

5. The next question is the matter of time.  The Mother has been having time and wants more.  The stumbling block has been Ms Whyte’s understanding of professional advice.  The Mother’s circumstances have now changed and there is another child in her household.  Not much is known about this child.  Three weeks ago the Mother entered into a new mental health plan.  She ought to be on medication.  There is a question as to whether she requires further medical intervention.  The psychiatric assessment of the Mother is not challenged but it is clear that the Mother was hospitalised in 2015.  It will be premature for overnight time with the Mother to take place, especially since orders were made by consent between Ms Whyte and the Mother in July 2017.  The Mother should see a mental health professional before there is any question of overnight time but otherwise time is progressing well.

6. Counsel then turned to the Father’s application.  At times the Contact Centre report shows favourable interaction with the children.  The issue for the Father is will he be consistent.  Counsel asked rhetorically what would happen if the Father came into the children’s life and then departs.

7. In considering the Father’s evidence counsel submitted that the Father’s outline of case did not address his anger, family violence, nor the lack of material filed by him in relation to these issues.

8. Counsel traversed the cross-examination with the Father about his conduct of proceedings.  It was submitted that at times the Father said he took responsibility but, in fact, he has not been truly focused to getting orders to spend time with the children.  There would be a big impact if the Father subsequently withdraws.

9. Counsel submitted that it was accepted that the Father did not enrol with Family Life (omitted).  His application was only received last week.  Counsel further submitted that the Father’s failure to attend the correct Court date was not satisfactorily explained.  His behaviour since 2014 is inconsistent with what the children need.  It is not entirely clear if the Father’s anger is until control.

10. Counsel pointed to the incident in Western Australia.  The Father said he was not told about it but Ms S said that he was.  This was a serious incident.  The bickering between the Father and Ms S goes to yelling and anger.  It is not easy for the Independent Children’s Lawyer to submit the children should spend overnight time until there is greater clarity that there is no family violence in the Father’s household.

11. The Father’s ideological opposition to same sex child rearing goes to the issue of whether the Father will support Ms Whyte as the primary carer.  Counsel submitted that the Father was convicted of serious offences.  His anger is not under control.  Time should be supervised and followed by a period of substantial attendance.

12. At this point the overnight adjournment took place.  When the matter proceeded on 24 January 2018 counsel submitted that there were two possible courses of action.  It was not possible for the Independent Children’s Lawyer to give a definite view.  There is a difficulty with lack of affidavit material and the way the evidence ran.  Counsel handed up two sets of proposed orders.  Annexure A would follow a finding that the Father does not properly have a capacity to commit and in Annexure B, there is an alternative regime which would apply if the father was found to, in fact, have such capacity.

13. Counsel submitted that there were a number of aspects of the evidence which were troubling.  First, the evidence of the Father’s lack of insight about violence.  The bickering and shouting were the subject of attempts by him to minimise.  The children need to be protected from family violence and need non-exposure to it.  It was significant that the Father had denied that he was aware that police attended following an incident in Western Australia when it was clear that he had been told.

14. Next there was the Father’s evidence orally which engaged, it was submitted, with s.60CC(3)(i) of the Family Law Act 1975 (“the Act”).  He had sought custody of the children in 2012 when he knew he was likely to go to jail.  This led to instability for the children.  Further, he had taken no steps to see the children after his release from jail.  He blamed the Mother and Grandmother.  His reasons for missing the contact sessions were unconvincing and his reasons for missing the trial were likewise unconvincing.  He was also unconvincing in his explanation for the delays to set aside the orders made in his absence on 31 July 2017.  It was submitted he was unconvincing about his failure to file affidavits.

15. It was submitted the Father blames the Mother, the Grandmother and his solicitors for all his shortcomings.  He has not been consistent.  These proceedings are a major part of the children’s lives.  There is no evidence in any detail about A who it appears has special needs.

16. Next counsel pointed to the Father’s demeanour in the witness box.  There were concerns as to his reliability.  The Father said he was not good about dates if it was about him.  The discussion by the roadside was concerning.  It was put as one and a half hours or half an hour.  These discrepancies were of note.

17. Counsel noted that the evidence of both the Mother and Father about Ms Whyte was seeking in substance to suggest that she was a control freak.  In fact, Ms Whyte is a stable, primary carer.  It is important that this relationship be supported and strengthened.  The Mother and Father think that Ms Whyte is domineering and controlling.  The Independent Children’s Lawyer is concerned by the Father’s view that this proceeding is a power struggle.  This suggests that he is not likely to support the Grandmother in her role.  The Father points to the Contact Centre and the family report which are largely favourable.  But the family report interviews were before the Father’s failure to attend the Contact Centre.  In fact, the Father has spent very little time with the children.

18. Counsel submitted it was a balancing act.  On the one-hand it was the desirability of the meaningful relationship with both parents but this had to mean a healthy and good relationship for the children.  In the context of this case it also means consistent and long-term.

19. If the Court was of the view that the Father could be consistent the matter should be adjourned for some seven months or thereabouts.  Counsel noted that two of the parties are self-represented and the communication levels are poor.  He pointed to the benefit that the Independent Children’s Lawyer’s continuing appointment would provide.

Submissions by counsel for the Father

1. Counsel pointed to the Father’s proposal.  He seeks finality in what it was submitted is a complex matter.  Counsel emphasised that there is distrust all round.  This was not good for the children but it was the reality.  There have been no communications between the Grandmother and the Father since 2012.  The Grandmother believes that the Father suffers from mental health issues and ignores Dr W’s report.  Ms Whyte and the Father do not like each other.  Ms Whyte says that there is fear if the children come to the (omitted) but this is where the Father and his family live.

2. The Mother has a very favourable view of the (omitted).  Y is influenced by Ms Whyte.  There is nothing in Ms J’s report about fear of zombies and the like.  There is no written report from (omitted) Mental Health Service.  Both the Mother and Father live in the (omitted).  Ms Whyte is opposed to the Father’s family.  Only Ms N’s side of the family see the children.  There is no evidence to support the Grandmother’s fears that the Father would abscond with the children.  This is about distrust.  Ms Whyte will not accept a relationship between the Father and the children.  She said they were affectionate with anyone which demeans the role of the Father.  She refers to them only having seen him fourteen times.  Counsel submitted that endless hoops were being put before there would be unsupervised time.  This was described as white anting.  It was submitted that Ms Whyte was sometimes evasive in her evidence and has black and white views.  The Father gives her appropriate credit.

3. The Mother’s evidence was that she was distressed to have only six hours per fortnight with the children.  But she has a 16 year old and a younger child.  The Mother says she has no mental health problems and Y wants to live with her.  The Mother now fears that Ms Whyte will take C from her.  The Mother is a single mother but the other two parties have partners.  Ms Whyte has Ms N and the Father has Ms S.  Ms S will make the Father step up.

4. Ms McGee regards Ms Whyte as controlling and both she and the Father say that they were intimidated by the bullying behaviours of Ms Whyte.  The relationship between the Father and Mother was improving.  The Father was frank about his past offending and now wants to be a parent.  He wants the children to be brought up by their Father and Mother, but accepts that the Grandmother and her partner bring up the children.

5. I will interpolate and make it clear that I do not accept that last submission.  The Father does not in truth accept Ms Whyte and Ms N should bring up the children.  He has an ideological opposition to this and wished for the children to be brought up by him and/or the mother.

6. Counsel submitted that notwithstanding the incident in Western Australia, Ms S stood by the Father.  They have arguments but they are still together and Ms S is supportive.  They have a child with possible special needs.  They are involved in the community and have the care from time to time of other children.  The Mother says X wanted to see his Father.  He should have the opportunity to see the children.

7. Counsel referred to reports of Dr W and family report by Ms G.  He submitted that if the Independent Children’s Lawyer wanted to challenge their reports he should have called him.  He submitted that the Court should draw an inference pursuant to Jones v Dunkel that the evidence of those witnesses, had they been called, would not have assisted the Independent Children’s Lawyer’s case.

8. The Father seeks a graduated increase in time on a faster basis than the Independent Children’s Lawyer.  It was submitted that the children have a relationship with the Father and want to see him.

9. Domestic violence was conceded to be serious but the Father will undertake an anger management course and any other course the Court requires him to take to see his children.  Counsel pointed out that the Father had prosecuted his case to trial and that he wants to attend school plays, sports and the like.

The submissions of Ms Whyte

1. Ms Whyte pointed out that there were many aspects of Annexure B to which she did not object.  She noted that time should be spent with the Father in (omitted) and should be fortnightly.  There should not be weekly visits by both the Mother and/or the Father.  (omitted) is where the children experienced trauma and their Grandfather had made no effort to see them.  The children had been with her since May 2015.  Their health, behaviour and schooling had all improved.  She will try to help the Mother through this, try to make her a better parent.  She is doing her best.  She is not going to take C off her daughter.

2. The children have only had five nights away from her since she has had them.  They do not leave her.  She has attended lots of school meetings about Y.  Her home was the only home the children have had.  X was only nine months old when they moved in.  There is lots of support from Ms N’s family whereas the Grandfather and his family never contact her.  Neither parent takes responsibility for the trauma on the children.  There is no evidence the parents have done the courses they say they have.  She accepts that the Father wants to see the children but wants to know he will commit.  He had come to six visits and then stopped.  He had only spent 14 hours with the children over two and a half years.  A is possibly autistic.  How would this be dealt with.  Even now the Father has not provided a photograph of himself to the children.

1. The school had been told to provide reports to the parents but neither of them had sought them.  Y’s schooling is suffering because of his anxiety and overnight time is not appropriate.  She seeks the orders in her affidavit filed 18 January 2018 plus a restriction that the children not be taken to (omitted).  Communications by email, Facebook or text were acceptable but she sought an order for the non-discussion of the Court proceedings.

Submissions of the Mother

1. Both Annexure A and B provide for time as agreed for the Mother.  She has provided a certificate for her Parenting After Separation course to the parties.  She did not know she could download school material.  (omitted) is where her friends and family live.  This is why the Grandmother is opposed to it, not because of any trauma on the children.

2. Ms McGee went on to make assertions as to domestic violence in the Grandmother’s house.  She said she was involved in alleged assaults between Ms Whyte and Ms N.  None of this material was on affidavit nor was it put to Ms Whyte in even the most tangential way.  I am not prepared to give these assertions any credit.

3. The Mother says she loves her children.  When she asked for help she was protecting her children.  Her current health plan is for anxiety.  It is unfair that she be criticised as the children are on the health plan too.  She would love the children to live with her and wants more time with them including overnight and holidays.  She said that Mr Edmonds would not take off with the children and will step up.  If he obtains access it should happen on different weekends from hers.  There should still be relationships between the other children.

4. It should be noted that, unsurprisingly, both Ms Whyte and Ms McGee were labile when making their submissions.  This case has obviously been a great stress on all the parties.

The credit of the parties

1. I have already noted that there was no application to cross-examine the experts.  I do not accept that the failure by the Independent Children’s Lawyer to call either Ms G or Dr W gives rise to a Jones v Dunkel point.  Amongst other things Jones v Dunkel requires that the witnesses be readily available and this would be more improbable than not given that any possible necessity to call them only arose during the running of the proceeding.  Further and in any event, even if I am wrong on this point, the authority of Jones v Dunkel is only to the effect that a witness if called might not have given evidence that favoured the party’s case.  It does not mean that their evidence would necessarily be adverse.  Given the nature of the dispute in this case, the Jones v Dunkel point is in my view, even if made out, an irrelevant consideration.

2. Ms Whyte was a good witness.  She presented as strong-willed and she herself concedes she has an authoritarian style.  Nonetheless, she impressed as a woman of dignity and she remained calm during a process which was plainly stressful and difficult for her.  She was, in my view, a good witness who was answering the questions put to her directly and honestly.

3. Ms McGee impressed me as being an intelligent and articulate young woman.  Although, understandably, she was at times labile when giving her evidence and generally when addressing the Court, she managed, like her mother by and large, to control her emotions through what was obviously a very distressing experience.

4. Nonetheless, despite these qualities, Ms McGee struck me as being largely insightless as to the misfortunes that have befallen her.  Her perception that she has done everything required of her from time to time and still meets unrelenting opposition from her mother reflects her view of the matter, but it is misconceived.  In truth she fails to fully appreciate that her terribly unfortunate mental health difficulties from time to time, and the chaotic lifestyle she has led from time to time, simply do not disappear because things are now more stable.  Her failure to control her emotions when Y in particular talks to her is, as she herself said, distressing to Y, but she did not appear to have any insight into the necessity to rise above her emotions in her child’s best interests.

5. The Father was not a convincing witness.  On his own evidence he is a very poor historian.  He gave his daughter A’s age as three when she turned four in mid-2017.  In his favour, in one sense, I formed the clear view that Mr Edmonds is of relatively limited intelligence.  If I understood him correctly, he at one point appeared to suggest that he could not read and write, although he said he had read his affidavits later on.  He said himself he was not very bright.  I accept that this is so.  Even so he was, on any view of the matter, a terrible historian.  His assertion that he had not been told about the incident in 2014 in Western Australia was clearly wrong.  This was a serious and significant issue and even if his evidence was honestly given, which I suspect it probably was, his failure to properly recollect a very serious act of misconduct on his part is perhaps illustrative of his lack of insight.

6. Ms S was a much better historian.  She answered questions directly and to the point.  However, to an extent, she likewise suffers from a lack of understanding as to the significance of family violence.  Nonetheless, her participation in the affairs of these parties seems to me likely to be positive on all fronts.

Findings on the facts

1. I have already set out at the start of this judgment a considerable number of matters which are not the subject of serious dispute.  As Ms G recorded, the children lived in a chaotic lifestyle during the brief period of time that their parents were together.  Y, after all, was only conceived during a brief reconciliation shortly following which the Father commenced his relationship with Ms S in 2012 and which has continued.  The Mother had the children following separation for a brief period of time following which they went to Mr Edmonds and Ms S for a likewise brief period of time which was brought to an end by his incarceration and/or Court orders.

2. Thereafter from 2013 to 2015 the children lived with the Mother but in 2015 were given by her to Ms Whyte and Ms N.  While the Mother appeared to make little of it, the fact is that the circumstances that gave rise to this change of custody arose because of her own chaotic lifestyle and threats, it would appear, made by two of her own close acquaintances.

3. I accept Ms Whyte’s evidence that the children were, as she put it, feral when they came into her care.  While they continue to have difficulties, it is plain that they have thrived in the care of her and Ms N.  While Ms N has not been put on affidavit, I have Ms Whyte’s evidence about Ms N, both in her affidavits and more generally in her evidence.  It should be noted that Ms Whyte’s evidence in her affidavit is about the stability of her relationship with Ms N and her role in assisting her in caring for the children was not tested in cross-examination.

4. The submissions of the Independent Children’s Lawyer to the effect that Ms Whyte and Ms N deserve a great deal of credit for the role that they have played is one that I entirely accept and would endorse.  Indeed, one of the unattractive aspects of this case is the carping criticism from the Mother and Father of Ms Whyte and Ms N.  I accept, as counsel for the Independent Children’s Lawyer submitted, that Ms Whyte is a demanding task master but there is nothing whatever wrong with that.  The steps she has taken to regulate the time spent by each of the parents with the children springs not from an obsessive desire to control, not from any desire to control at all, save to the extent that she is seeking to protect the children from further trauma.  It is a measure of the immaturity and lack of insight of each of Ms McGee and Mr Edmonds that they attribute sinister motives to Ms Whyte.

5. It should be noted that there is simply no question that these two children desperately need a secure, safe and consistent environment.  Their anxiety and other difficulties make this absolutely vital.  It is against these findings that I come to the central points in this dispute.

Parental responsibility

1. I accept the submissions of the Independent Children’s Lawyer that there should be an order for sole parental responsibility for the children.  As counsel for the Independent Children’s Lawyer submitted it is clear beyond doubt there has been family violence.  The Mother’s assertion that the Father picked her up by the leg and her hair and threw her to the floor was not challenged in cross-examination.  I find that it occurred.  I also find that there was family violence in the form of verbal abuse by the Father on the Mother and in all probability to some extent in response also.  In my opinion in the circumstances, the presumption is to equal shared parental responsibility is clearly rebutted.

2. This being so, it is instantly obvious given the history of the matter and its likely future that it is in the best interests of the children that the Grandmother have sole parental responsibility.  The other parties can scarcely communicate with her in a civil fashion and as Mr Kanarev of counsel for the Father submitted, there is all too much distrust between the parties.  Ms Whyte will have the children living with her predominantly and it is plainly in the circumstances entirely appropriate that she have sole parental responsibility.  I accept the Independent Children’s Lawyer’s proposal as to notification for medical treatment and the like.

With whom the children should live

1. Although both the Father and the Mother would seek in an ideal world to have the children live primarily with them (to the exclusion of the other) in a sense this position has simply not been proceeded with at trial.  Although the Mother said she would wish the children to live with her she has said on more than one occasion, “I know it’s not going to happen.”  With respect, it is obvious that she is right.

2. I fully accept and endorse the submission from counsel for the Independent Children’s Lawyer that Ms Whyte’s household is the only safe and stable household these children have ever known.  The Mother’s accommodation circumstances at present are simply utterly inadequate to have the children live with her on any view.  Furthermore, and I will return to this, her mental health is not sufficiently clearly established to meet her capacity to care for the children permanently in any event.

3. The Father has only seen the children for 14 hours over two and a half years. He previously abandoned them. The suggestion that they should live primarily with him is simply untenable. Furthermore, his own household is still marked by family violence within the extended definition of s.4AB of the Act. It is clear, taking materials as a whole, and, indeed, it must be beyond any conceivable doubt, that it is in the children’s best interests to live in the primary care of Ms Whyte and Ms N.

The Mother’s time with the children

1. The Mother adores her children.  It is a matter of concern to note that her mental health appears to have been in some considerable degree influenced if not regulated by the extent to which she had the children in her care.  The children are not there to assuage mental health difficulties of the parents.  It is not clear quite where the Mother’s mental health actually, so to speak, is.  I accept the counsel for the Independent Children’s Lawyer’s submission to that effect.  She appears to be presently unmedicated and she appears to have recently felt the necessity to undertake a mental health plan.  Her complaint that the children are also subject to a mental health plan shows the victim – based self-assessment that so marked both her evidence and that of the Father.  It is misconceived.  The Mother’s ill health is, of course, not a matter for criticism but for sympathy but it is a directly relevant consideration.

2. In my view, the Mother should continue to see the children, as agreed with Ms Whyte.  Ms Whyte has made it clear that she wants to help the Mother through the difficulties notwithstanding their own interpersonal problems.  I have no doubt she will continue to do so.

The Father’s time

1. Here, the first and very stark issue, as exemplified by the Independent Children’s Lawyer’s two contrasting proposals, is the view the Court should ultimately take as to whether the Father will, as he says he will, step up and be consistent in the children’s lives.  It is submitted that if this issue was decided favourably to the Father then a time regime should commence.

2. Although this is a complex case and this is a difficult issue, I think my conclusions can be stated shortly.  I share all reservations advanced by the Independent Children’s Lawyer about the Father’s conduct both generally and of these proceedings.  He has been feckless and inconsequential in the way he has dealt with matters.  Although at times he appeared to accept his responsibility for his own prior misconduct, in truth his evidence was strongly laced with elements of victimhood which, in my view, are totally inappropriate.  In saying this, and also being critical of the Mother as well, it should be noted that both Ms McGee and Mr Edmonds had terribly difficult upbringings and they deserve, of course, a measure of sympathy for it.  Nonetheless, the Court is concerned with the children’s best interests not some kind of apportioned blame as between the parties.

3. The Father has been violent in the past and continues even in Court to endeavour to minimise his conduct.  He does not, in truth, accept the extent of his violence nor do he or Ms S accept the extent and undesirability of their own argumentation.

4. I do not accept the Father’s half-hearted endeavours to explain his failure to attend contact visits with his children.  I accept that he abused the intake worker.  If you read the Contact Centre visits he failed on a number of occasions to wash up at the end of the visits when he is required to do so.  For a man who said he wanted to see his children so badly, the pattern of events revealed by the Contact Centre report is deeply concerning.  I refer further to his dilatory approach in endeavouring to set aside the orders made in his absence in July 2017.

5. Notwithstanding all of these concerns, however, I think the Father should be given the chance to see the children and not be excised at this point from their lives forever.  Perhaps the most telling factor in my conclusion is that he has prosecuted his case to judgment.  He did after all return from Western Australia when he was made aware of these proceedings.  Despite some lamentable interim failure he has, indeed, ultimately participated in the trial.  The children, it would seem from the Contact Centre, know who he is and have enjoyed their time with him.

6. While I approach perhaps Mr Edmonds’ assertions as to his desire to step-up, with all the reservations I have detailed, I accept a submission of counsel for him that it is Ms S that will make him step up.  Ms S impressed me as a witness and as a personality.  She has a cheerful, forthright manner.  She impressed me as being a woman of some force of personality, which I suspect she would need to be to sustain a relationship with an aggressive bully like Mr Edmonds for some five years.  Put shortly, I think that the chances of him stepping up are good enough to make the experiment.

7. In saying this, I note that everyone seems to agree that should the Father enter the children’s lives and then depart, this will have a very damaging effect on the children.  The Father himself said that this would mess with the children all their lives.  I am conscious that in making this decision I am taking something of a chance.  Nonetheless, it is clear that if the relationship progresses, and progresses as it is intended by everybody that it should, the children will benefit from it.  No one, including Ms Whyte, has said the contrary.

8. In the circumstances I am going to contemplate the orders that are predicated on the basis that the Father will, indeed, properly commit to his relationship with his children.

The form of orders to be made

1. This matter can be dealt with shortly.  The orders proposed in Annexure B by the Independent Children’s Lawyer are a comprehensive and manifestly appropriate set of orders to be made.  I am going to adjourn this matter for some seven months as the Independent Children’s Lawyer requests and will review the matter then.  I shall simply say in passing that the Father’s proposed timetable is grossly over accelerated and fails properly to engage with the history of the matter as I have found it to be.  It is simply an expression of his lack of insight.

2. I furthermore confirm that this is a process in which failure by the Father to comply with the orders, as contemplated by the order 13 in Annexure B, should indeed have substantial penalty.  There is no prospect in my view that if the Father simply fails to attend without proper cause he shall go back to time at a Contact Centre.  One slip will be the final slip.  He has said he wishes to be in his children’s lives.  He must make good that assertion by his action and not just his words.

Conclusion

1. Despite the length of this judgment, I should make it clear that I have by no means traversed all the matters raised.  In the end the primary dispute between the Father and Ms Whyte is refined to a needle point and I have dealt with it.  The question as to whether time should develop yet further as between either the Mother and/or the Father and the children is one that should be revisited when the matter returns to Court in due course.

I certify that the preceding one hundred and ninety-five (195) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  23 February 2018