WORTHAM & WORTHAM

[2019] FamCA 281

FAMILY COURT OF AUSTRALIA

WORTHAM & WORTHAM [2019] FamCA 281

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the children have not had physical contact with the mother for three years – Where the father asserts that the mother presents as an unacceptable risk to the children – Where the mother seeks that the children spend equal time with the parties – Where the father seeks that any time the mother spends with the children be subject to supervision – Where the children have expressed a strong desire to see their mother – Where the family consultant supports a resumption in the mother’s time with the children – Orders made.

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA, 65DAA, 69ZT

B & B (1993) FLC 92-357
Mazorski & Albright [2007] FamCA 520
MRR v GR (2010) 240 CLR 461

APPLICANT: Mr Wortham

RESPONDENT: Ms Wortham

FILE NUMBER: MLC 7689 of 2014

DATE DELIVERED: 3 May 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 8, 9 and 10 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Norman

SOLICITOR FOR THE APPLICANT: North East Lawyers

COUNSEL FOR THE RESPONDENT: Ms Kildea

SOLICITOR FOR THE RESPONDENT: Ballarat Lawyers

Orders

1. That the father shall have sole responsibility for Y born … 2011 And Z born … 2013, collectively (“the children”) PROVIDED that he shall consult with the mother regarding the long-term care, welfare and development of the children in respect of their education and serious medical decisions to the intent that the parties shall use their best endeavours to reach agreement but if unable to do so THEN the father shall make the necessary decisions and advise the mother as soon as is reasonably practicable.

2. That the father will provide the mother with details of the children’s school including contact details for the school and the children’s teachers.

3. That the parties do forthwith exchange their residential address (and that of the children) together with their contact details.

4. That for a period of three (3) months the children spend time with the mother supervised by J Children’s Contact Centre at Suburb K or Suburb L to occur at either site (Suburb K or Suburb L) (“the Contact Centre”) at the discretion of the coordinator to allocate the site based on availability, whichever may facilitate intake and spend time the soonest at such time as nominated by the Contact Centre and that each party:-

   (a)will contact the Contact Centre within seven (7) days and request an appointment for assessment for suitability for supervised contact and/or update all necessary enrolment forms;

   (b)attend for assessment at times and places appointed by the Contact Centre;

   (c)attend at any appointment made by the Contact Centre for the supervised contact;

   (d)ensure that the children attend any appointments made by the Contact Centre for supervised contact;

   (e)comply with the reasonable rules of the Contact Centre; and

   (f)comply with all reasonable requests or directions of the staff of the Contact Centre.

5. If after the assessment intake procedure the parties are accepted by the Director of the Contact Centre as suitable, the Contact Centre to facilitate supervised contact with the mother at times nominated by the Contact Centre.

6. The children’s time with the mother is to be supervised by staff nominated by the manager of the Contact Centre and the mother is to pay the reasonable fees for the supervision on each occasion of supervision.

7. The father shall deliver the children to and collect them from the Contact Centre at times as specified by the Contact Centre and on each occasion promptly leave the building and the vicinity, unless requested to remain by a staff member of the Contact Centre.

8. If after the assessment intake procedure the parties are not accepted by the Contact Centre as suitable or the Contact Centre refuses or is not able to provide supervision THEN the parties will do all such acts and things and sign all such documents as may be necessary within seven (7) days of them being informed that the Contact Centre is not suitable, to employ a professional supervisor to supervise the mother’s time on alternate weekends for no more than six (6) occasions each for a period of up to four (4) hours with the cost of this to be borne equally by the parties.

9. That until 1 June 2020, the children communicate with the mother by way of Skype every Wednesday at 4.30 pm for twenty (20) minutes, or at such other times as the parties may agree.

10. That following a period of three (3) months of supervised time (but not in any event to exceed more than six (6) occasions) the children will spend time with the mother as follows:-

    (a)       From the conclusion of supervised time to 1 January 2020:-

    (i)Each alternate Saturday from 10.00 am to 2.00 pm;

    (ii)From 10.00 am to 2.00 pm on Christmas Day and Z’s birthday;

    (iii)By Skype and/or telephone at all reasonable times;

    (iv)Such further and other times as may be agreed between the parties in writing including text messages;

    (v)Changeover between the parties is to occur at the Contact Centre at first instance, the office of the professional supervisor if the Contact Centre is not available and otherwise at the Suburb M Police Station or such other police station or place as the parties may agree in writing.

    (b)       From 1 January 2020 to 29 February 2020:-

    (i)Each alternate Saturday from 9.00 am to 5.00 pm;

    (ii)By Skype and/or telephone at all other reasonable times;

    (iii)Such further and other times as may be agreed between the parties in writing including text messages;

    (iv)Changeover to occur at the Suburb M Police Station or such other place as may be agreed between the parties in writing.

    (c)       From 1 March 2020 to 31 May 2020:-

    (i)Each alternate weekend from 10.00 am Saturday to 3.00 pm Sunday;

    (ii)From 10.00 am Saturday to 3.00 pm Sunday on the Mother’s Day weekend;

    (iii)For four (4) hours by agreement on Easter Sunday, on Y’s birthday and the mother’s birthday;

    (iv)By Skype and/or telephone at all reasonable times;

    (v)Such further and other times as may be agreed between the parties in writing including text messages;

    (vi)Changeover to occur at the Suburb M Police Station or such other place as may be agreed between the parties in writing.

    (d)       From 1 June 2020 to 20 December 2020:-

    (i)Each alternate weekend from after school Friday (or 3.30 pm if a non-school day) to before school Monday (or before school Tuesday in the event that Monday is a non-school day), but should the mother’s time fall on the Father’s Day weekend then the mother’s time will be suspended at 5.00 pm on the Saturday preceding Father’s Day.

    (ii)The first half of Term 2 and Term 3 school holidays from the conclusion of school on the last day of term until 5.00 pm on the middle Saturday;

    (e)       From 21 December 2020:-

    (i)Each alternate weekend from after school Thursday (or 3.30 pm if a non-school day) to the commencement of school on Tuesday (or 9.00 am if a non-school day), but should the mother’s time fall on the Father’s Day weekend then the mother’s time will be suspended at 5.00 pm on the Saturday preceding Father’s Day.

    (ii)For one half of all school holidays with the children to spend week about with each of the parties during the Christmas school holidays;

    (iii)From 10.00 am Saturday to 3.00 pm Sunday on the Mother’s Day weekend if the children are not already in the care of the mother;

    (iv)By Skype on Friday prior to the weekend the children are with the father from 4.30 pm for twenty (20) minutes;

    (v)Such further and other times as may be agreed between the parties in writing;

    (vi)Changeover to occur at the children’s school but on a non-school day changeover will occur at the Suburb M Police Station or such other place as may be agreed between the parties in writing.

    (vii)Thereafter for the children’s birthday from 5.00 pm until 7.00 pm on a school day and from 11.00 am until 5.00 pm on a non-school day PROVIDED that if the children are spending time with the mother on the children’s birthdays in the event that the birthday falls on a non-school day THEN the father spends time with the children from 11.00 am until 5.00 pm;

    (viii)From 5.00 pm Easter Thursday to 5.00 pm Easter Monday in 2021 and each alternate year thereafter;

    (ix)From 3.00 pm Christmas Eve to 3.00 pm Christmas Day in 2020 and each alternate year thereafter and from 3.00 pm Christmas Day to 3.00 pm Boxing Day in 2021 and each alternate year thereafter;

    (x)By Skype and/or telephone at all reasonable times;

    (xi)Such further and other times as the parties may agree.

11. That either party be at liberty to have a nominee known to the children to facilitate transport and changeover.

12. That in 2019 the mother be permitted to attend Y’s baptismal service and primary presentation and the father notify the mother of the place, date and time of the event with two (2) weeks’ notice.

13. Both parties and their respective families be permitted to attend the primary presentation each year, significant young women and young men events and that each party notify the other of such events within one (1) months’ notice.

14. That the mother be permitted to attend Z’s baptismal service in 2021 and that the father notify the mother of the place, date and time of the event with two (2) weeks’ notice.

15. That both parties be responsible for ensuring the children attend any extra-curricular or sporting activities.

16. That neither party enrol the children in any extra-curricular activity which would require the children to attend that activity whilst living with the other party without first obtaining the other parties’ written consent.

17. That each party must advise the other party of:-

    (a)       any significant illness, accident or injury suffered by the children;

    (b)       any significant medical or dental treatment provided to the children;

    (c)any medication the children are to take whilst the children in the other’s care including the dosage and such medication to be provided to the other parent at changeover;

    (d)all specialist and allied health appointments for the children and each party shall have the right to attend.

18. That the father do forthwith advise the mother of the contact details of the children’s doctor, dentist and other health professionals and that he authorise those persons to communicate with the mother and to disclose information in respect of the children to her.

19. That both parties be noted as enrolling parents and emergency contacts at the children’s schools, other care providers or other extra-curricular activities.

20. That the children’s schools and other care providers be authorised to provide all other information and documentation about the children to both parties, including but not limited to the children’s progress, newsletters, reports and photographs and details of school activities.

21. Both parties are at liberty to discuss matters relating to the children with their school, teacher, principal and other care providers.

22. That the mother be restrained and an injunction granted restraining her from allowing the maternal grandmother to come into contact with or interact with the children until 1 January 2020.

23. That neither party denigrate the other, their respective partners, family or friends directly or in the presence or hearing of the children and will use their best endeavours to ensure that no-one else does so and shall remove the children from any environment where denigration is occurring.

24. That both parties be restrained from passing information and messages to the other via the children.

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

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

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 7689 of 2014

Mr Wortham

Applicant

And

Ms Wortham

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings between Mr Wortham (“the father”) and Ms Wortham (“the mother”) relate to the future parenting arrangements for Y born in 2011 and Z born in 2013 (collectively “the children”).

2. The father relies upon his Amended Initiating Application filed 11 December 2018 seeking orders that the father have sole parental responsibility for the children, that they live with him, but that there be no time spent with the mother.

3. The father is prepared to allow communication with the mother and the children via Skype at such times and for such duration as may be agreed with him.

4. The father also seeks that the mother be prohibited from allowing any member of her family to be present during any communication with the children.

5. At trial and as set out in the father’s Outline of Argument, his strong opposition to the mother having any effective relationship with the children was relaxed somewhat to allow the mother to have physical contact with the children in the following terms:-

   (a)Initially, at the Suburb L Children’s Contact Centre for a period of six visits at such times and frequencies as can be accommodated by the Centre;

   (b)Subsequently, subject to a report from the Contact Centre establishing that there were no concerns raised at any stage during the mother’s time with the children, at such times and at such locations and on such conditions as agreed with the father in writing.

6. The father was still prepared to allow the mother to communicate with the children via Skype, but persists in his prohibition of any members of the maternal family being present, communicating or coming into contact with the children.

7. By Amended Response filed 26 February 2019, the mother seeks equal shared parental responsibility and following a three month period of supervised time with the children at a children’s contact service, there is then a graduated increase in the children’s time with the mother culminating in a week about basis and half school holidays from the end of Term 4 in 2020. The mother also details orders that would enable each of the parties to involve themselves in the children’s health, education and religious development.

8. The father commenced the proceedings on 1 September 2014. By way of interim and final orders he sought that the mother return the children to Town N, Victoria where the family had lived since their relocation from City H in 2012. The parties separated in 2014. The father alleges that he returned home from work and found that the mother and children had left the home.

9. The mother agrees that she and the children left the former matrimonial home. She considered that she had been the victim of family violence and had been emotionally abused and manipulated by the father. She asserts that he was financially controlling.

10. From early 2014 the mother suffered ill-health with symptoms of dizziness, severe headaches and nausea. She experienced extreme joint pain and tingling sensation in her hands and feet.

11. Her range of symptoms were apparently complex and despite numerous tests no diagnosis was made.

12. In 2014 the mother began to speculate that she may have been poisoned. Blood tests provided were inconclusive, but the mother became obsessed with the belief that her symptoms were consistent with heavy metal poisoning. Blood and urine screens did not detect heavy metals, however, she interpreted results of hair analysis as identifying elevated copper levels.

13. She determined that the father was attempting to poison her.

14. A complaint was made to the local police, however without firm evidence of poisoning the police were unwilling and unable to undertake an investigation.

15. The mother’s belief was shared with the maternal grandmother who accepted that the mother’s deteriorating physical and mental health was most likely to be explained by the mother’s belief that the father had poisoned her and as a consequence she and the children were at risk.

16. Various purported discussions with the father leading up to separation reinforced her belief that the father had been putting poison in her food.

17. At the time of separation the father was a personal care worker, although he had not undertaken consistent and full-time employment for some years.

18. The mother worked as a supermarket cashier but left work following the birth of Y.

19. The whereabouts of the mother and the children was ultimately disclosed by her and whilst not providing her exact address, the mother proposed to the father by email that he spend periods of up to three hours either fortnightly or monthly with the children in Town P, Victoria.

20. On 8 August 2014 the mother accused the father of emotional abuse, poisoning, financial control and that he viewed pornography.

21. For reasons best known to the mother, she either permitted or did not attempt to stop the maternal grandmother from corresponding with the father reinforcing the allegation of poisoning, neglect and viewing of pornography.

22. The parties and extended family are members of a Church.

23. The maternal grandmother explains her propensity to forward unwarranted correspondence to the father on the basis that “the Lord has asked me to plead with you to repent and if you do [He] will give you great blessings”.

24. The maternal grandmother believed that the father had administered a substance to her and the mother in their food and drink on a number of occasions over a period of about four years.

25. Her email of 8 August 2014 contains the following opinion:-

    -I found out this week that you have been viewing pornography in the last few months. On 120^th (sic) July when I had a stewardship discussion with you said that the last few months of you marriage have been the best. I could not see how this could be so when [the mother] has had severe headaches, dizziness, numbness in upper and lower limbs. She has told me recently that Sunday is her worst day. I have sat with her in Church each week and seen that she is [pale], vague and looks sedated. It is my feeling that something of a sedative nature has been given to her on Saturday nights. I have fasted many days in the last month and the thought came to my mind one day “[prescription drug]”. I did not know what it was until I googled it. I believe that this is consistent with her sedation and memory losses and your use of pornography.

26. Orders were made on 10 December 2015 appointing an Independent Children’s Lawyer (“ICL”) and until further order the parties have equal shared parental responsibility for the children, they live with the mother and following her relocation to Town Q, the father was to spend time with the children for seven hours each Saturday and communicate with them by telephone each Monday and Thursday. The father’s time was extended on 10 December 2014.

27. The ICL engaged Dr B, Psychiatrist and Mr C, Psychologist and Clinical Hypnotherapist to complete psychiatric assessment reports with respect to the mental health of the parties. Dr B assessed the father on 12 January 2015 and the mother on 13 January 2015 and separate reports were produced. Mr C conducted assessments with the father on 7 and 14 July 2015 and the mother on 9 and 24 July 2015 and produced one report which forms annexure “G…” to his affidavit filed 4 December 2015.

28. On 28 August 2015 an updated report with respect to the mother’s mental health was prepared by Dr B. That report forms annexure “C…” to the affidavit of Dr B filed 7 December 2015. It spoke of the children being at risk of psychological and physical harm if they remained in the primary care of the mother.

1. A pathology test report of 1 October 2014 showed a high level of substance T in Z’s urine.

2. Mr C had undertaken some basic research and considered that in the circumstances of the test there was limited opportunity for the father to have administered substance T and accordingly the suggestion that the father had added poison to Z’s diet was unlikely. By logical extension, Mr C expressed concern that if the child had ingested substance T it was most likely to have occurred whilst in the presence of the mother.

3. Ultimately, no evidence was presented as to how Z came to be exposed to or ingest substance T. The mother and maternal grandmother maintained a dogged and determined belief despite all investigations undertaken which resulted in no evidence to support the mother’s belief that the father had poisoned her and the children. In light of this, Mr C’s focus then turned to a concern as to the mother’s ability to parent the children.

4. A report had been made to Child Protection Services by the mother and maternal grandmother that the father may have sexually assaulted Y. No supporting evidence was found notwithstanding that the mother believed that Y had been sexually assaulted and she explored the possibility of having Y vaginally examined under general anaesthetic at a local hospital.

5. Despite strong opposition from medical authorities the mother was keen to proceed with the invasive examination.

6. The application of standardised tests indicated that the mother was likely to have been obsessive compulsive, depressed, anxious and experiencing paranoid ideation.

7. Mr C considered the mother to be:

   [Q]uite disturbed, showing overtly psychotic behaviour including bizarre thoughts suggesting delusional thinking and unusual beliefs that appear to be disconnected from reality, strong paranoia, delusions of persecution and ideas of reference.

8. The father brought an urgent application seeking the children reside with him.

9. On 17 September 2015 ex-parte orders were made that the children live with the father and for the issue of a recovery order to ensure that the children were delivered up to him.

10. The events leading up to the ex-parte order were dramatic and set the scene for the orders that were made on 10 December 2015 which enabled the mother to communicate with the children via Skype each Thursday and Sunday for a maximum period of 20 minutes, with the calls to be initiated by the mother and monitored by the father.

11. The father was also ordered to forward to the mother a selection of photographs, cards, letters and drawings from the children and that she be permitted to forward similar items to them.

The removal of the children from the father’s care

1. The ICL advised the mother that as a result of the report, he supported the children coming into the father’s care. The mother acceded to the suggestion of the ICL.

2. The father thereafter assumed the primary care of the children and agreed with the mother that she would see the children at a McDonald’s Restaurant at City R on 16 September 2015.

3. The parties had agreed that the mother’s time with the children would be supervised. The children entered the restaurant where the mother and the agreed supervisor were waiting.

4. The father and the paternal grandfather went to a restaurant opposite the McDonald’s Restaurant to receive the children following their time with the mother.

5. The supervisor telephoned the father and advised him that the mother and maternal grandmother were trying to remove the children. The father and the paternal grandfather intervened; the paternal grandfather by standing in front of the maternal grandmother’s car to stop it leaving and the father by parking his car to block the mother’s car.

6. Apparently, the mother and maternal grandmother had anticipated that there may be conflict and hired the services of two security guards.

7. Eventually the maternal grandmother and the mother seized an opportunity and drove away with the children. Some damage was caused to the father’s car and it is alleged that the paternal grandfather may have sustained an injury.

8. The mother took the children to a town near the Victoria/New South Wales border.

9. The father was advised of the children’s whereabouts and following a police welfare check on 16 September 2015 the children were recovered and placed in the father’s care pursuant to the order on 17 September 2015.

10. Up until the trial neither party was aware of the other’s residence. The mother has now disclosed her street and suburb, but declines to identify the house in which she resides.

11. The father refuses to disclose his address and the whereabouts of the children, but concedes the suburb is Suburb S. There is a significant distance between the parties. An issue in the proceedings is whether the address of the parties, but in particular the residential arrangements for the children, should be disclosed.

12. For some considerable time the mother has been aware that the children attend Suburb V Primary School.

13. There is no allegation that the mother has attempted to interfere with the children’s school, or that she has attempted to ascertain the residential address of the children.

14. It is conceded by the father that there has not been a breach of the orders and that the mother has not conducted herself in such a way that he considered it necessary to terminate any communication that the mother has had with the children.

15. As discussed, the father has belatedly altered his position and now concedes that there may be some advantage to the children re-establishing a physical relationship with the mother, but only under the strict supervision that a children’s contact service can provide.

16. The parties are in agreement that the mother’s time with the children should recommence under supervision, but it is the arrangements that would follow a successful re-introduction that confound the parties.

17. The father’s counsel conceded that the orders sought by the father were intended to convey his strong opposition to the mother spending time with the children unsupervised. The father also is not able to contemplate that the maternal grandmother or any extended member of the mother’s family should ever come into contact with the children.

18. The father relies upon the following documents:-

    (1)Amended Initiating Application filed 11 December 2018.

    (2)Father’s Trial Affidavit filed 11 December 2018.

    (3)Father’s Affidavit in Reply filed 4 April 2019.

    (4)Case Outline Document of 5 April 2019.

19. The mother relies upon the following documents:-

    (1)Amended Response filed 26 February 2019.

    (2)Mother’s Affidavit filed 26 February 2019.

    (3)Affidavit of maternal grandmother filed 26 February 2019.

    (4)Affidavit of Mr W (psychologist) filed 31 March 2019.

    (5)Case Outline Document of 5 April 2019.

20. The ICL relies upon the family assessment report released 3 December 2018 by Dr F (“the family consultant”) who considered various Court documents and the family assessment report of Dr G dated 9 January 2015.

Evidence

1. The conduct of the proceedings was a matter canvassed with the parties and the ICL prior to the commencement of the trial. The Court highlighted the provisions of div 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) given the father’s allegation that the mother presented as a risk to the children.

2. Neither party or the ICL promoted that approach and I considered that the principles of s 69ZN would be better served by receiving the evidence that each of the parties relied upon but exercising my discretion under s 69ZT(3) as to the weight that should be given to the evidence, particularly if it is contentious.

The father

1. The affidavit evidence relied upon by the father is brief. It repeats the history leading up to the orders made on 10 December 2015 and underpins the mother’s assertion that since those orders her conduct has not given the father any cause for concern.

2. The father moved back to City H in October 2015.

3. Whilst generally the relationship between the parties has remained incident free, the father complains that there have been a number of emails forwarded by the mother and the maternal grandmother from 13 February 2018 to as recently as a few days prior to the commencement of the proceedings. The father has ignored the correspondence and despite his request via his solicitors that the mother and the maternal grandmother stop sending unwanted communication, those requests were largely ignored.

4. He exemplifies his concern by reference to the following email from the maternal grandmother on 9 April 2018:-

   It is a pity that you and your Mum and Dad have not owned up to the wrong things that you have done against me and my family.

   Again I am instructed to give this scripture to you:

   Moses 7:10

   “And the Lord said unto me: Go to this people, and say unto them – Repent, lest I come out and smite them with a curse, and they die.”

   I hope you do what the Lord wants.

   Best wishes,

   Ms X

5. The father resides in City H with his fiancée Ms D.  They commenced their cohabitation in 2018 but have had a relationship for almost two years.

6. Ms D was not called to give evidence.

7. Y qualifies for funding through the NDIS for speech pathology, occupational therapy and physiotherapy. Z is currently on the waiting list for similar funding, but undertakes speech therapy.

8. The children and to a lesser extent the father suffer from a medical condition.  There is no evidence to suggest that the father has not adequately and competently cared for the children in terms of their health and physical needs. The mother does not make such an allegation.

9. The father is not employed, but is participating in a Parenting Program. He has expressed an interest in resuming work in the aged care sector.

10. It has been a feature of the proceedings that the parties and the ICL considered that there may be an advantage to the mother resuming time with the children via a children’s contact service. An order was made by Justice Bennett on 15 December 2016 which required the parties to enrol in a children’s contact centre as may be nominated by the ICL.

11. Orders were made on 7 September 2016 which provided for the parties to enrol into the Suburb K Contact Centre. Upon enquiries being made, it was discovered that the waiting list at Town CD Children’s Contact Service was negligible, whereas there was a significant delay in gaining entry to the Suburb K Contact Centre.

12. The orders did not provide for time to start at the contact centre, but rather for the parties to enrol so that supervised time may well be an option available to the Court.

13. The father instructed his solicitors to forward correspondence to the mother’s solicitors dated 27 October 2016 advising that:-

    [U]nder no circumstances will our client sign any enrolment forms relating to immediate unordered contact at Town CD Children’s Contact Service prior to the next hearing on 4 November 2016, when these matters may be properly considered by Her Honour Justice Bennett.

14. Under cross examination, the father conceded that the paternal grandfather had investigated the “security” arrangements at Town CD Centre and determined that it was not a safe venue.

15. As matters transpired, no arrangement was able to be made for the mother’s time to resume with the children at a children’s contact service.

16. The father was strongly pressed on this issue and it was put to him that such was his opposition to any physical time resuming between the children and their mother that he would never agree to time resuming irrespective of the terms and conditions by which it might occur.

17. There was merit in the thrust of counsel’s cross examination of the father.

18. Other than the risk of the mother retaining the children without his consent or by reference to a Court Order, the father was not able to enunciate the basis of his concerns in respect of the children’s safety.

19. He considered that the mother was likely to be suffering from a psychiatric or psychological disability and whilst he did not present any evidence in support, considered that it was likely she was and remains delusional.

20. He was unable to consider that the conduct of the mother (save for his concern as to the unsolicited emails) had been exemplary and without trouble or incident.

21. He conceded that the children react well to the mother and that they remember her and love her. He explains his more benign approach to time resuming with the mother at a children’s contact centre as an indication that he recognises the children miss her.

22. He accepted that the children demonstrated a surprising connection with the mother, but minimised the impact by explaining that any excitement by Z and Y in spending time with their mother at the observed interaction conducted by the family consultant was explained by the children remaining excited following seeing their mother for the first time in more than three years.

23. The father was pressed as to what would be the logical next step in the children spending time with the mother if the supervised time went well. The father was not able to consider the next step and I find that the father had recognised that he could not avoid a resumption of time at a children’s contact service, but that thereafter he did not have any real intention to promote an ongoing relationship. Any suggestion that the mother’s time might ultimately become unsupervised was clearly beyond the pale.

24. I found the father to be well-meaning but misguided. He was either not able to recognise or unable to accept that the children’s best interests have not been served by the complete absence of any physical interaction between the mother and the children.

25. I did not accept that the father had presented any evidence that supports the contention that the mother’s mental health or current conduct justifies the trenchant position he has adopted.

The mother

1. The mother relied upon her brief affidavit filed 26 February 2019. She is currently employed in two customer service positions. She continues in her faith and supports the father’s evidence that he takes the children to church every Sunday.

2. She rents her own premises which she considers would be suitable for her and for the children. She lives north of City H and at present the maternal grandmother resides with her to provide financial and personal support.

3. The mother expects that the maternal grandmother will soon return to her home in Town CK.

4. The mother has returned to part-time studies intending to change her occupation.

5. The evidence of her interaction with the children via Skype was impressive given that she has undertaken the process on two occasions in each week for more than three years.

6. The mother was not challenged as to the history of the parties’ relationship. I accept that in the first two years of their life, the mother was primarily involved in the children’s management and physical care. Their development was impacted by a medical condition which required further effort in terms of promoting the children to eat and to walk independently.

7. Much effort was invested in physiotherapy exercises, playgroup, swimming lessons and kindergarten.

8. The mother was not complimentary of the father’s behaviour towards her during the marriage. She considered that he was sexually insensitive and emotionally and financially controlling.

9. Whilst those matters were of ongoing concern to the mother, such was her religious conviction that she needed to be loyal fearing that she would be blamed for being a “bad wife”.

10. There is little doubt however that the catalyst for the separation was the irrational belief by the mother that the father had poisoned her, the children and the maternal grandmother and that he had sexually abused Y.

11. I am left in no doubt that there was not ever any credible evidence to support the fallacious beliefs of the mother. Whatever else may have been a feature of their relationship, poisoning and sexual abuse of Y were not. I do not know whether the mother’s belief was a matter of her own making or whether the maternal grandmother either fostered the notion or supported it.

12. No evidence was presented and the mother accepts that whilst she continues to believe that the father did poison her and her family as alleged, there is no credible evidence available.

13. The mother presented in a forthright manner and I accept that she was a witness of truth. It would have been relatively straightforward for the mother to now accept that her belief that the father attempted to poison her was irrational and no longer part of her current thinking.

14. Her evidence was that whilst she continued to believe that the father had attempted to poison her, this was now well in the past and she held no current fear, nor did she consider that the father was a risk to her, the children or the maternal grandmother.

The maternal grandmother

1. Much of the affidavit relied on by the maternal grandmother was struck out on the basis that it was prejudicial rather than probative.

2. What remains is her continued strong support for the mother and her desire to see the children resume a relationship with her and the mother.

3. She has been present for many of the mother’s Skype calls with the children, but does not interfere.

4. She accepted that she had recently forwarded email communication to the father knowing that it was unwanted communication.

5. There was a dogged persistence in her presentation. She believed that the father had attempted to poison the family leading up to the separation of the parties and did not hold the father in high regard.

6. Like her daughter, the maternal grandmother has strong belief in her faith which borders on zealotry.

7. She was not able to accept that her messages seeking that the father repent could or should be considered as offensive or unwarranted. She believed that if the father had repented then the litigation would largely have been unnecessary.

8. The fact that the father does not accept her unsolicited emails and by necessary implication, refuses to repent, reinforces her view that he presents as a risk to the children.

9. Not without some targeted enquiry of the maternal grandmother did she ultimately concede that the emails were uninvited and if the mother requested that she not interfere and forward correspondence to the father, then she would abide by that direction.

10. Her acceptance was begrudging and I was not persuaded that she is sufficiently insightful to recognise the somewhat delicate balance that must be achieved if the children’s time with their mother is to resume.

Mr W

1. Mr W is a clinical psychologist. The mother was first referred to him in 2012 for treatment for possible Adjustment Disorder.

2. She then sought his assistance in 2018 following a referral for treatment for anxiety with the likely cause being the ongoing parenting dispute between the parties.

3. In evidence, the mother conceded that her most recent attendance on Mr W was also to assist in the litigation. She reasonably considered that the father may well focus on her psychiatric and psychological history and in particular her fixed view that leading up to separation the father has poisoned her.

4. There was no challenge to Mr W’s professional qualifications. He read and understood pt 15.5 of the Family Law Rules 2004 (Cth) and at no stage in his evidence did I form the impression that he had subordinated his professional opinion to assist the mother in the litigation.

5. The mother attended on Mr W for a number of therapeutic sessions.

6. On 17 October 2018 Mr W administered a test to assess the mother’s emotional health and psychological functioning.

7. As explained by Mr W, the test is described as a “standardised test” which is designed to improve the validity and reliability of the outcome. That is, the test is designed so that it is not easily manipulated by the client.

8. Mr W was asked to consider the current belief of the mother that the father had attempted to poison her and the children. The thrust of the father’s case is that the mother may well be exhibiting clear signs of a delusional disorder and if so she potentially presents as a risk to the children.

1. Mr W noted in his report that the mother had responded in the affirmative to a question about “feeling the presence of unseen people”. Such a response “is usually scored as an indicator of Delusional Disorder”. Mr W considered that cultural context may explain such a response, in particular that “Christians and other religious people often report feeing the presence and influence of deities and … ancestors”. This is considered to be a sign of a “normal, healthy, spiritually-sensitive” experience and many people who hold their faith strongly would provide such a response. Mr W asked the mother follow up questions with respect to this and the mother explained “that she feels the comforting presence of God at times”.

2. There was the further consideration relevant to the mother namely, her belief that the father had attempted to poison her.

3. Mr W considered the test results by asking the mother to ignore feelings such as the presence of God and that the father had poisoned her and the children. When the test results were considered against these parameters “her scores for Delusional Disorder and Paranoia fell to zero, which indicates the absence of delusional or paranoic functioning”.

4. An important consideration is that the mother continues to instruct Mr W for therapeutic assistance. He reports that her anxiety has diminished and he is satisfied that whilst the mother may still harbor a lingering belief that the father may have been complicit in attempting to poison her and the children, that belief is compartmentalised and now relegated to history.

5. According to Mr W, there is no good reason why in the short to medium term there will be no further need for the mother to seek therapeutic support and he considered that she “is maintaining a stable, emotionally self-regulated state of psychological wellbeing. I believe she is capable of providing safe and secure care for her children”.

6. Mr W was an impressive witness. His evidence was measured and concessions that may have been considered adverse to the mother were made.

7. The father did not call any evidence to contradict the opinion of Mr W that the mother’s anxiety was well regulated, nor that his assessment of the mother being free of any symptoms to support a Delusional Disorder was not justified.

Family consultant

1. The family consultant conducted interviews and observations with the parties including extended members of the family and the children in November 2018.

2. She was forwarded and gave some consideration to an impressive quantity of Court documents.

3. She understood the relevant family background leading up to the parties’ separation, the mother’s allegations that the father may have poisoned her and the children and the allegation that he may have sexually abused Y.

4. The family consultant also considered the report of Dr G, family consultant, and the psychiatric reports of Dr B and Mr C.

5. At the date of interview, the father’s proposal was that the children live with him and continue to communicate with the mother via Skype, but that there be no physical contact between them.

6. The mother’s proposal was consistent with her current position namely, that she commence time with the children at a children’s contact service and that there be a gradual build-up of time leading to equal shared care.

7. In interview, the family consultant recorded that the father strongly believed that the mother’s diagnosis of Delusional Disorder was current and that the children were at risk. He was strongly opposed to any involvement by the maternal grandmother and considered that she was controlling and coercive to the mother’s detriment.

8. The father agreed that the mother had communicated with the children via Skype twice per week and whilst he was critical of the content of their communication, there was no conduct on behalf of the mother that prompted him to intervene.

9. In interview, the mother maintained her belief that the father had poisoned her, but accepted that there was no evidence to support her belief.

10. She understood that the father, together with other health professionals, considered that she may be delusional and accordingly, she consulted with Mr W to assist in managing her beliefs and her anxiety arising from her not having spent time with the children.

11. The gravamen of the evidence of the family consultant arises from her interpretation of the observations of interaction between the mother, the maternal grandmother and the children.

12. The family consultant observed that the children were at first hesitant in their interaction with the mother. It must be remembered that for more than three years the only time that she has spent with the children is via Skype communication.

13. I was asked by the father’s counsel to consider the mother’s apparent focus on talking to the children about their shared experiences prior to separation. This was consistent with the father’s evidence that the mother would often speak to the children about earlier experiences, including the topic of toilet training.

14. Far from it being considered by the family consultant to be a negative experience, she very much considered that the mother’s attention to previous shared experiences was a clear indication of her being child focused.

15. The topic was considered in the following paragraph:_

    48.[The mother] brought a box of toys with her into the session. The box appeared to contain the toys that had once belonged to the children, and the toys [the mother] shared with the children over Skype. During the observation, she connected with the children through telling them about the toys, the names the children had once given the toys, and how old they were when they enjoyed the toy. The children appeared to enjoy hearing about themselves when they were younger. The children seemed familiar with the toys and Y was observe[d] hugging one of the toys the mother had previously shared with her over Skype. The mother was supportive of each child’s play, and intervened appropriately as the task required (for example, managing the lid to the glue, and assisting Y to use the glue).

16. At the conclusion of the session the family consultant observed that Z said to himself in what she considered to be a sad tone of voice “we will miss Mummy”. The family consultant had no reservation in her opinion that the children, in particular Z, gravitated towards the mother and seemed highly responsive.

17. As discussed by the family consultant, Z appeared to be preoccupied with his mother following their interaction. When Z came back into the father’s care, Z repeated that he had missed his mother and that he wanted to see her. Y was observed to twirl her hair and sing “mummy, mummy, mummy, mummy”.

18. Z was clear that his experience had been fun and that he missed both his mother and the maternal grandmother.

19. The family consultant considered that despite the significant impediment of the mother communicating with the children only via Skype, she had managed to maintain a connection with them. She gave no weight to the father’s assertion that the mother’s “interest in their lives is non-existent”.

20. Her observations were of the mother appearing affectionate and supportive and the children gravitating to her in circumstances where the long physical absence may well have suggested otherwise.

21. The family consultant recommended adopting a cautious approach given her concern that “contact with the children could allow these consciously repressed fears about the children’s wellbeing to resurface”. The family consultant did not have the advantage of the evidence of Mr W and my finding that there is no psychiatric or psychological component to the mother’s presentation which would speak against the children spending time with her.

22. Despite the warmth of the interaction between the children and the maternal grandmother, the family consultant remained concerned as to the influence that the maternal grandmother may have on the mother.

23. Whereas the mother appeared to have “moved on” in respect of her belief that the father had poisoned her and the children, the same could not be said of the maternal grandmother.

24. At [42] of the report the maternal grandmother’s attitude towards the father is explored. There is little doubt that the maternal grandmother continues to believe that the father had poisoned the mother and the children and she has rationalised her belief by her unsubstantiated view that because the father had taken on a significant component of the parenting arrangements because of the mother’s ill-health, “life had become too hard for [the father] and this was what led to him poisoning the family”.

25. The observations of the family consultant in respect of the presentation of the maternal grandmother were consistent with her presentation in evidence. It was unlikely that the maternal grandmother would ever alter her view of the father notwithstanding her evidence that all he needed to do was to “repent” for his misconduct.

26. Whilst not a feature of the mother’s evidence, the presentation of the maternal grandmother to the family consultant on the topic of the allegation that the father had sexually abused Y remains of concern. There is no evidence that there was any substance to the allegation that the father interfered with the child. The maternal grandmother remains fixed in her belief that the father may have acted inappropriately.

27. Some weight should be given to the concerns of the family consultant that the maternal grandmother may be subordinate to her direction.

28. I accept the evidence of the family consultant that it is important for the mother to rebuild her relationship with the children and this should occur in the absence of the mother’s extended family, but in particular the maternal grandmother.

29. I have considered the cautious approach adopted by the family consultant in her recommendations made at [68] of the report. Her caution is entirely justified given that she did not have the advantage of hearing the mother’s evidence and the impressive evidence of Mr W.

30. A further consideration is the opinion of the family consultant that the father is not supportive of the children’s relationship with the mother developing. The family consultant “speculated on the degree to which [the father] was motivated to support the children’s relationship with their mother”.

31. The evidence of the family consultant was of considerable assistance. Under cross examination she did not alter her position that the relationship between the children as observed by her was impressive given that the only communication with the children had been via Skype over a period of more than three years.

Principles relevant to parenting orders

1. Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The test of what is in the best interests is to be considered by the application of the objects and principles of pt VII pursuant to s 60B.

2. I bring to account the primary and additional considers of matters as set out in s 60CC(2) and s 60CC(3) of the Act. Each of the parties make allegations against the other that the children are at risk. The father contends that if the children are placed in the unsupervised care of the mother they are at risk not only because he contends the mother suffers from poor mental health and may well be delusional, but the risk of abduction and removal of the children from his care by the mother.

3. For her part, the mother considers that whilst the father is able to care for the children’s physical needs, they are at risk of emotional harm given the father is not able or unwilling to support the resumption of a relationship between the children and the mother.

4. I propose to adopt the following approach:-

   a)To give consideration to the separate proposals put by each of the parties as they were identified and presented to the Court;

   b)To have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2);

   c)To have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;

   d)To have regard to the primary considerations under s 60CC(2) namely, the benefit of the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;

   e)To have regard to the additional considers under s 60CC(3);

   f)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) are to be considered and if more weight is to be considered to one or more of the matters raised then it must be the subject of delineation and comment.

5. Section 61DA of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.

6. In the circumstances of this case, the father seeks an order of sole parental responsibility whereas the mother seeks an order for equal shared parental responsibility.

7. If the Court were to determine that there should be an order for equal shared parental responsibility and it is not rebutted, then s 65DAA required a Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practicable. In MRR v GR (2010) 240 CLR 461 at [15] it was said that the consideration of whether equal time was feasible required a “practical assessment”.

Parenting considerations

Meaningful relationship

1. A court is entitled to assume that there is a benefit to all children in having a meaningful relationship with both of the parents, but must always be considered from the aspect of the advantage to the child of having a meaningful relationship with one or other or both of the parties rather than what outcome will promote a relationship with a parent.

2. Whilst the father’s current proposal might be considered as a tentative step forward, nonetheless it recognises that the children are likely to benefit from a relationship with their mother providing it is safe to do so.

3. The evidence of the family consultant is considered to be a powerful indicator of the underlying strength of the mother’s relationship with the children and as an important consideration, the extent of the emotional attachment given the serious barrier of the mother only being able to communicate with the children via Skype.

4. I find that the mother’s relationship with the children is to be considered as “important, significant and valuable…”.[1]

   [1]Mazorski & Albright [2007] FamCA 520 [26].

Whether the mother should have supervised time with the children

1. The father is not able to contemplate a circumstance where the children will spend unsupervised time in the mother’s care. Whilst he now belatedly supports the children spending time with the mother under the supervision of a children’s contact service, when questioned as to the next step, assuming (as his proposal does) that the children’s interaction with the mother will be uneventful, he was not able to consider the mechanics of the mother spending time with the children. His initial proposal was that the paternal grandfather would supervise the time.

2. The suggestion of the paternal grandfather having any involvement in the mother’s time with the children was ill-considered and misconceived. There is evident hostility between the families and the paternal grandfather, perhaps similar to the maternal grandmother, appears to exert influence over the father.

3. Moreover, there are intervention orders mutually agreed by all of the parties that name the mother as a protected person against the paternal grandfather.

4. Whilst the unsuitability of the paternal grandfather should not have been a surprise, it apparently was.

5. Counsel had not canvassed with the father the future options that might be available to the parties and the children.

6. There appeared to be a strong belief that the litigation process would involve a further hearing consequent upon the mother’s time with the children at the children’s contact service concluding.

7. The father’s position was surprising given the submission of his counsel that he urged the Court to make orders that would least likely lead to further litigation.

8. If it is reasonable to accept that whatever comes after the supervised time at the children’s contact service would in any event require supervision, counsel had not considered whether that would be practicable or even possible, where no thought was given and no evidence presented to the identification of potential supervisors.

9. The father’s perceived need for the children’s time with the mother to be supervised is predicated on his concerns as to the stability of her mental health and more particularly, the risk that the mother may well remove the children from his care.

10. The Full Court in B & B (1993) FLC 92-357 considered that the Court needs to protect children from abuse and expanded upon the appropriateness of long term supervision at 79,780:-

    Given the obligation to protect children from abuse, the Family Court should be careful to ensure that any order for supervised access is not attended by any risk of infringement of the child’s right to safety, in the widest sense of that word. Supervised access of its very nature acknowledges the presence of a risk in the child. The Family Law Council in its paper “Access – Some Options for Reform” (1987) recommended that:-

    “Orders for supervision of access should never be made in circumstances where supervision is regarded as being necessary for the protection of the child.”

    We would not elevate such a recommendation to the status of a legal principle for the reason that, in some circumstances such as in the case of an inexperienced parent or a very young child, supervision may be necessary for a relatively short period of time.

11. There are some circumstances where supervision is of advantage or may be necessary but, as discussed, usually only for a short period of time.

12. The Full Court further considered the range of possible supervisors and said at 79,781:-

    For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.

13. Each case must of course be looked at on its own circumstances.

14. Whilst it may be surprising, the mother and children communicated without incident via Skype for more than three years. The parties now agree that there must be a more meaningful form of interaction between the mother and the children. Supervised time at a children’s contact service is limited to the availability of the service, but in any event to no more than three months or about six fortnightly visits of two hours duration.

15. The conundrum for the father is that if he concedes that there should be a next phase of the children rebuilding a relationship with the mother and he maintains that supervision is necessary, there is no proposal as to what arrangements could or should be put into place and for how long.

16. Ultimately, the father’s position distils to an outcome that would see the children spending time with the mother only via non-physical interaction.

Risks to the children

1. I have little doubt that the mother in concert with the maternal grandmother sought to remove the children from the father’s care in 2015. Their plan was deliberate and calculated involving the employment of two security officers to maximise the chance of a successful removal of the children

2. The mother was misguided and the plan was ill-conceived. It did little more than reinforce in the father that the mother’s mental state may be suspect and her behaviour placed the children at risk.

3. The consequences of the mother’s conduct is self-evident in the subsequent orders of the Court which has seen her time with the children significantly curtailed.

1. I accepted the mother’s evidence that she was in error in removing the children from the father and given the time that has elapsed, she has reflected on her conduct and accepts that it was wrong. I am not so confident that the maternal grandmother has come to the same realisation.

2. The mother’s recognition of her poor conduct was credible.

3. Her interaction with Mr W was an important step for her and I accept the psychologist’s evidence that the mother does not exhibit or display any psychiatric or psychological ill-health.

4. She is able to compartmentalise and put aside her belief that the father may have had an involvement in poisoning her and the children.

5. She continues to receive psychological support and I accept the prognosis of Mr W that the mother is likely to be stable and enjoy good mental health.

6. I do not consider that the mother presents as a risk to the children.

7. The other consideration is the risk that the father presents to the children of his steadfast refusal to accept that there is benefit to the children reuniting with the mother and enjoying a more fulsome relationship with her.

8. I find that the father was disingenuous in his support for the mother resuming time with the children at a children’s contact service. It is difficult to understand how the parties could prevaricate over the issue for a period of three and a half years. If it was considered important that the mother resume time with the children, it was within the father’s capacity to cause it to occur.

9. The mother has been beholden to the father in terms of the extent to which he considered she should interact with the children.

10. Perhaps with a level of naivety, the mother has conducted herself appropriately with the children over three years and gave no cause for concern in terms of her interaction with the children.

Children’s wishes

1. The family consultant placed considerable weight on the wishes of the children to see their mother and spend time with her. The delight of the children upon seeing their mother was made all the more poignant by the history of non-physical communication with her. The family consultant found that this supported the retention of an underlying relationship and emotional attachment.

2. I place significant weight on the presentation of the children both during the observed interaction with the mother and the maternal grandmother and later in the presence of the father.

The likely effect of any change in the children’s circumstances

1. The mother seeks to progress her relationship with the children cautiously, but ultimately seeks that there be a shared care arrangement.

2. Whilst I consider that the children will benefit from a relationship with their mother, I cannot ignore that for three and a half years they have been in the primary care of the father in circumstances where the mother concedes that their needs have been appropriately met.

3. The mistrust between the parties is manifest and the conflict is further exacerbated by the attitude of the maternal and paternal grandparents.

4. Whilst the children have not experienced substantial time in the mother’s care, her proposal is measured in that their reintroduction to her is gradual.

5. I am satisfied that the children will be able to easily adapt to the mother’s proposal save as to equal time.

6. There are other factors that need to be considered. The communication between the parties is poor. They mistrust each other and their negative attitude towards the other is reinforced by extended family.

The practical difficulties and expense of the children having contact with a parent

1. The parties have been steadfast in their refusal to disclose details of their residence and that of the children. At the commencement of the proceedings the mother was prepared to disclose the street and suburb in which she lived, but not so as to identify her house.

2. The father has refused to provide anything other than the suburb in which he resides.

3. There is a significant distance between the parties.

4. Given my finding that the mother does not present a risk of abduction to the children, I can see no good reason for the parties to not reveal their residential address and contact details.

5. The mother has been aware of the children’s school for some time and there is no evidence that she has misused that information.

6. The father will need to accept that the unfortunate circumstances in which the children have been living for the last three and a half years is now at an end and for the children to gain the maximum benefit from being reunited with their mother, there needs to be a lessening of tension in the separate households of the parties and the children need a demonstration and indication that there is a more cooperative approach between the parties.

7. A further difficulty that arises in respect of a party wishing not to disclose their residential address is that ultimately the problem transfers to the children who also will be expected to maintain secrecy.

8. In circumstances where there is no underlying risk, such a requirement would be absurd and potentially place the children in an invidious predicament.

The capacity of each parent or any other person to provide for the needs of the children including emotional and intellectual needs

1. The mother concedes that the father has cared for the physical needs of the children. She challenges his ability to provide for their emotional needs in circumstances where he does not support their relationship with the mother.

2. I am satisfied that the mother is able to provide for the children’s physical and emotional needs to the extent that her proposal requires that to occur.

3. Prior to separation she was a caring parent. Post-separation she has demonstrated significant insight and civility in her dealings with the children and the father.

4. The family consultant observed a warmth and depth of feeling between the children and the mother which was surprising given the circumstances.

5. I am not so satisfied that the engagement of the maternal and paternal grandparents will necessarily be of benefit to the children in circumstances where there is mutual mistrust and dislike.

6. The paternal grandfather has clearly been a feature of the children’s lives since separation. The maternal grandmother has not.

7. The maternal grandmother did not impress as child-focussed and any recognition that she should not have been involved in the removal of the children in 2015, or that her continued email communication with the father was unwelcome and unhelpful, was begrudgingly given.

8. There is no reason why the maternal grandmother should not also have a relationship with the children, but it must be subservient to the mother rebuilding her relationship such that she is able to control how others interact with the children when they are in her care.

Family violence

1. The mother makes certain allegations in respect of the father’s conduct towards her prior to separation. Whilst there was some focus in the proceedings on the father’s alleged behaviour, it was subsumed by a consideration of the mother’s false allegation that the father had poisoned her and the children and that he had sexually abused Y.

2. I have no doubt that the parties were unhappy and that as observed by the family consultant, the father’s personality was likely to be stronger and of the two, the more dominant.

3. There is no circumstance where the mother brings to account her assertion that the father is controlling or coercive in her proposal other than that by the children spending time with her that may also provide a different perspective for the children as they develop.

Parental responsibility

1. The father seeks an order for sole parental responsibility. The mother seeks an order for equal shared parental responsibility.

2. The determination of parental responsibility is to be considered by reference to the factors in s 60CC.

3. The issue of parental responsibility is to be determined by reference to the best interests of the children.

4. There is no evidence which would suggest that the parties are able to work together, nor that there is any likelihood of it easily occurring.

5. The children are developing well at school and that must be seen as a positive indication of the exercise of parental responsibility by the father.

6. The parties are not able to communicate other than via email. I do not consider that their communication is likely to be at a level where a consensus could be reached.

7. The Court is not able to ignore the reality of the situation of the parties and that is, for the last three and a half years the mother has had little involvement in the children’s lives and certainly has not been involved in any decision making process.

8. I consider that there should be an order for the father to have sole parental responsibility, but with a significant obligation on the father to consult with the mother before making any final decision.

Conclusion

1. Subject to an order that the father will have sole parental responsibility, I propose to make orders that generally support the mother’s proposal other than as to equal time.

2. I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and thirty three (233) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 3 May 2019.

Associate:

Date: 3 May 2019