FEDERAL CIRCUIT COURT OF AUSTRALIA
CRIPPS & LINSON	[2015] FCCA 445	

Catchwords: 
FAMILY LAW – Parenting – whether mother has alienated the children or the father is realistically estranged – family violence – whether identity contact is an option – no contact.	

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA	

MRR v GR [2010] HCA 4	

Applicant:	MR CRIPPS	

Respondent:	MS LINSON	

File Number:	WOC 393 of 2012	

Judgment of:	Judge Altobelli	

Hearing dates:	10-11 April, 16-17 October 2014	

Date of Last Submission:	19 January 2015	

Delivered at:	Wollongong	

Delivered on:	27 February 2015	

REPRESENTATION
Counsel for the Applicant:	Mr Wong	

Solicitors for the Applicant:	Barkus Doolan	

Counsel for the Respondent:	Ms Lawson	

Solicitors for the Respondent:	Johnson Horsley Lawyers	

Counsel for the Independent Children's Lawyer:	Mr Ladopoulos	

Solicitors for the Independent Children's Lawyer:	Legal Aid NSW	

ORDERS
(1)	That the Mother shall have sole parental responsibility for the Children, W (born (omitted) 2004), X (born (omitted) 2004), Y (born (omitted) 2006), and Z (born (omitted) 2010).
(2)	That the Children shall live with the Mother.
(3)	That the Children shall have no contact with the Father.
(4)	That the Father shall be restrained by injunction from:
(a)	Attending the Mother’s home;
(b)	Contacting the Children or the Mother by any means whatsoever;
(c)	Contacting the Children’s school;
(d)	Attending the Children’s school for any reason; or
(e)	Attending any sporting, social or extra-curricular events that the Children are participating in.
(5)	That the Mother be restrained from leaving the Children unattended in the presence of the Maternal Grandparents. 
(6)	That the Father to pay the costs of the Independent Children’s Lawyer, assessed at $4,435 within 60 days, or as otherwise agreed.
(7)	That the Father have leave to relist before me on 7 days notice regarding the issue of costs, provided that he does so within 28 days.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Wollongong	
WOC 393 of 2012
MR CRIPPS	
Applicant

And

MS LINSON	
Respondent

REASONS FOR JUDGMENT
Introduction
1.	This case is about four children: W who is 10 years old, X his twin brother also 10 years old, Y, 8 years old, and Z who is 4, nearly 5.  The Court needed to decide whether these children spend time with their father, and if so how often and in what circumstances.  The parents were unable to agree.  The Mother is strongly opposed to any contact or communication between the children and their father.  The Father would like to spend time and communicate with his children but also proposes that if the Mother will not cooperate, the children live with him and spend time with the Father.  This is a complex and sad case.
Background
2.	Matters of background are extracted from the detailed chronology prepared by the Independent Children’s Lawyer and her Counsel.  The chronology is reproduced in the first Schedule to these reasons.  It is a document that has been particularly useful to the Court not just because it is comprehensive, identifies the source of the asserted facts, events and contentions, but is even-handed in the sense that it attempts to neutrally set out the competing contentions of the parents in relation to relevant matters.  The chronology would have required much effort and time in its preparation, but it was enormously useful to the Court and the Court records its appreciation to the Independent Children’s Lawyer.
3.	The children’s father is the Applicant in this case.  He is 47 years old, lives in (omitted), a Sydney suburb, and describes himself as an (occupation omitted).  The children’s mother is the Respondent.  She is 43 years old, lives in (omitted) in the former matrimonial home, and describes herself as undertaking home duties.  The parents commenced their relationship in 2002 and separated in February 2011.
4.	One of the main issues in this case is ascertaining and understanding what type of violence occurred in the relationship, how frequently, the role that each parent played, and its impact on both the parents and children.  Finding of fact will need to be made in this regard.  The Mother asserts that the violence commenced as early as 2003 and occurred throughout the relationship until separation, though not continuously.  The Father agrees that some violence took place but not in the way that the Mother contends.  Both parents agree, although to different extents, that some or all of the children witnessed the family violence, and experienced it in that sense.
5.	The Mother also alleges that the Father was violent towards the children.  In general terms the Father agrees that, on some occasions, he acted inappropriately.  The impact of this on the children needs to be considered.
6.	The Father has not seen the children, or had any meaningful communication with them, since June 2011.  It is common ground that between the date of separation in February, and June 2011, the Father did spend time with the children albeit in the presence of the Mother, and for relatively short periods of time.  At the date of separation the twins were 7, Y was 5, and Z was only 18 months old.  The Father quite frankly conceded in cross-examination that Z would not recognise him as her father.  Since the date of separation, and certainly after the commencement of the present proceedings in May 2012, the parents have engaged, in slightly different ways and to different degrees of commitment, in counselling, therapy, parenting after separation programs and family dispute resolution, all with an aim to resuming some time between the children and their father.  Indeed, it is common ground that several orders have been made for supervised contact, none of which have been complied with by the Mother.
7.	An Independent Children’s Lawyer was appointed for the children.  A Family Report was prepared by Dr H.  The matter was originally listed for Hearing in November 2013, but that was vacated due to problems with the Mother’s grant of aid.  The Final Hearing commenced on 10 April, continued on 11 April, resumed on 16 October and concluded on 17 October 2014.  There was then a further delay in completing written submissions. 
8.	Both parents, and the children, were very capably represented by experienced family lawyers, and family law Counsel.
9.	By the time of closing submissions, on day 4 of the Hearing, the Independent Children’s Lawyer proposed that the Mother have sole parental responsibility, that the children live with her, and that they spend time with their father on two occasions each year for up to two hours, coinciding with Easter and Christmas, on a supervised basis.  The Mother would otherwise have to facilitate the children ringing their father and ensure that he is notified of matters relating to their health and education.  The detailed order sought by the Independent Children’s Lawyer is reproduced in the second Schedule to these reasons.
10.	The Father’s proposal remained as set out in his Amended Initiating Application filed 31 March 2014.  His main application was that there be equal shared parental responsibility, that the children live with their mother, and that the children spend time with him on a gradually increasing basis commencing with supervised time and gradually building up to weekends and alternate weekends.  In addition he sought orders that the children participate in therapy, that the parents separately attend on counselling and that the therapy and counselling be in the context of seeking to repair relationships and restore the children’s relationship with their father.  In the alternative, however, the Father sought an order for sole parental responsibility, that the children live with him, that there be no contact or communication between the children and their mother for three months, and thereafter, subject to compliance with some detailed orders in relation to therapy and counselling, the children spend time with their mother.  Whilst the orders are not expressed in these terms, in cross-examination the Father did explain that his alternative proposal only applied if the Mother failed to comply with orders made consistent with his main proposal.
11.	The orders sought by the Mother are set out in the case outline dated 3 April 2014, prepared by her solicitor.  She proposed that she have sole parental responsibility, that the children live with her, have no contact with their father, and that he be restrained from attending the Mother’s home, the children’s school or seeking to contact the school or extra-curricular activities, or seeking to contact them in any way.
The evidence
12.	In the Father’s case he relied on his Affidavit sworn 28 March 2014, together with an Affidavit of Mr C sworn 13 September 2012.  The father was extensively cross-examined, in fact twice, and Mr C was also cross-examined.
13.	In the Mother’s case she relied on her two affidavits sworn 10 July 2012, and 21 March 2014.  She was also extensively cross-examined.
14.	In the Independent Children’s Lawyer’s case there was an Affidavit of Ms Temelkovska, the Independent Children’s Lawyer, sworn 3 October 2014.  She was not required for cross-examination.  In addition there was the Family Report prepared by Dr H dated 4 March 2013.  Dr H was extensively cross-examined.
15.	A substantial quantity of documents were tendered in evidence which throw light on the factual matters in dispute.  Where relevant, specific reference to these documents will be made.
16.	It is necessary to make findings of fact including in relation to whether or not the Court accepts the evidence of the parents, in relation to specific matters, or generally.
17.	A number of interim orders were made during the course of this litigation.  Where relevant, reference will be made to those interim orders.
18.	The Court was greatly assisted by the oral closing submissions of the Independent Children’s Lawyer and the written submissions filed on behalf of both parents.  Indeed it is hard to imagine that anything else could have been said on behalf of the parents and children, to assist the Court in making a very difficult decision.
Applicable law
19.	In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.
20.	The objects and principles of Part VII are set out at s. 60B:
	60B  Objects of Part and principles underlying it
		(1)	The objects of this Part are to ensure that the best interests of children are met by:
		(a)	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
		(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
		(c)	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
		(d)	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
		(2)	The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
		(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
		(b)	children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
		(c)	parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
		(d)	parents should agree about the future parenting of their children; and
		(e)	children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
		(3)	For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
		(a)	to maintain a connection with that culture; and
		(b)	to have the support, opportunity and encouragement necessary:
		(i)	to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
		(ii)	to develop a positive appreciation of that culture.
21.	At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA.  Section 61DA provides:
	61DA  Presumption of equal shared parental responsibility when making parenting orders
		(1)	When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
		(2)	The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
		(a)	abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
		(b)	family violence.
		(3)	When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
		(4)	The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
22.	If the presumption applies, the Court is required to consider certain things:
	65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
	Equal time
		(1)	If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
		(a)	consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
		(b)	consider whether the child spending equal time with each of the parents is reasonably practicable; and
		(c)	if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
	Substantial and significant time
		(2)	If:
		(a)	a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
		(b)	the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
	the court must:
		(c)	consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
		(d)	consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
		(e)	if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
	(3) will be taken to spend substantial and significant time with a parent only if:
		(a)	the time the child spends with the parent includes both:
		(i)	days that fall on weekends and holidays; and
		(ii)	days that do not fall on weekends or holidays; and
		(b)	the time the child spends with the parent allows the parent to be involved in:
		(i)	the child’s daily routine; and
		(ii)	occasions and events that are of particular significance to the child; and
		(c)	the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
		(4)	Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
	Reasonable practicality
		(5)	In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
		(a)	how far apart the parents live from each other; and
		(b)	the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
		(c)	the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
		(d)	the impact that an arrangement of that kind would have on the child; and
		(e)	such other matters as the court considers relevant.
23.	Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.  
	Determining child's best interests
	 (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
	Primary considerations
	(2)  The primary considerations are:
	(a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and
	 (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
	Note:          Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
	 (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
	Additional considerations
	 (3)  Additional considerations are:
	 (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
	(b)  the nature of the relationship of the child with:
	(i)  each of the child's parents; and
	 (ii)  other persons (including any grandparent or other relative of the child);
	(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:
	(i)  to participate in making decisions about major long-term issues in relation to the child; and
	 (ii)  to spend time with the child; and
	 (iii)  to communicate with the child;
	 (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
	(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
	 (i)  either of his or her parents; or
	(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
	(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
	 (f)  the capacity of:
	  (i)  each of the child's parents; and
	 (ii)  any other person (including any grandparent or other relative of the child);
	to provide for the needs of the child, including emotional and intellectual needs;
	 (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
	  (h)  if the child is an Aboriginal child or a Torres Strait Islander child:
	 (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
	(ii)  the likely impact any proposed parenting order under this Part will have on that right;
	 (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
	 (j)  any family violence involving the child or a member of the child's family;
	(k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
	(i)  the nature of the order;
	(ii)  the circumstances in which the order was made;
	 (iii)  any evidence admitted in proceedings for the order;
	  (iv)  any findings made by the court in, or in proceedings for, the order;
	 (v)  any other relevant matter;
	(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
	 (m)  any other fact or circumstance that the court thinks is relevant.
24.	In MRR v GR [2010] HCA 4, the High Court said 
8.	Sub-section (1) of s 65DAA is headed "Equal time" and provides: …
	Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9.	Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
25.	A little later in the judgment the High Court said:
13.	Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Assessing the evidence of the witnesses
26.	Dr H gave evidence.  She is clearly both independent and expert.  Her evidence was convincing, and very helpful to the Court.  No submission was made by any party that the Court should not place considerable weight on her evidence, including her Report, and the recommendations made.  The one caveat to this, of course, is where the Court has made factual findings that are contrary to or inconsistent with the impressions she formed in her Report.
27.	Despite the submissions made on behalf of the Mother to the contrary, the Court accepts the evidence of Mr C, a witness in the Father’s case.  In her evidence, the Mother asserts that he was lying in relation to an incident that occurred on 19 March 2005.  He gave his evidence in a clear, cogent and unemotional way.  Even though he was a witness in the Father’s case he did not present as having any particular partisanship, but was merely recounting what he observed on a date in question.  Where the Mother’s evidence conflicts with the evidence of Mr C, the Court prefers the evidence of Mr C.
28.	In relation to the parents, assessing the credibility of their evidence is much more complex and problematic.  The Independent Children’s Lawyer’s Counsel submitted that there was a degree of concern about the reliability of the evidence of both parents.  He submitted that they were both evasive at times in cross-examination.  That is undoubtedly correct, based on the Court’s own observation.  Counsel for the Independent Children’s Lawyer submitted that each sought to minimise the negative aspects of their own behaviour, whilst exaggerating the negative aspects of the other parent’s behaviour.  That is also undoubtedly correct, based on the Court’s own observation.  On what is perhaps the most contentious issue, the family violence that took place in the relationship, Counsel for the Independent Children’s Lawyer submitted that the truth was probably somewhere in between the versions of events advanced by each parent.  Notwithstanding the submissions made on behalf of both parents to the contrary, the Court accepts the Independent Children’s Lawyer’s submission in part, and will expand upon this below.
29.	A number of important points emerge from the father’s cross-examination.  As will be seen below, some of these reflect on his credibility about specific matters.  As a result of the father’s cross-examination, but also having regard, of course, to the other evidence before the Court, the Court finds as follows:
•	The Father believes that whatever the Mother’s past problems were relating to excessive consumption of alcohol, her consumption has moderated, and it is not a concern that goes to her parenting capacity.
•	Even the Father believes that whatever involvement the Mother has had in the past in relation to criminal law has no bearing on the present case.
•	He considers her to be a good mother, whilst questioning her judgment in relation to who she involves in the parenting of the children.
•	He believes she is singularly unable to facilitate and encourage the children’s relationship with him.
•	He accepts that if the Court made orders consistent with his alternative proposal, in its present form his proposal would constitute a developmental wrench for the children that would be difficult for both the children and himself to manage.
30.	The father gives detailed evidence about incidents of family violence in his affidavit, focussing on five main events, Christmas Day 2007, October 2009, December 2009-January 2011 and 16 February 2011.  He was closely cross-examined about these events, and other events of violence asserted by the Mother in her evidence.  For the most part, when answering questions about family violence he was often unresponsive, often sought to minimise his role in events, frequently sought to deflect responsibility and shift the focus on to the Mother, and regularly sought to justify his actions by reference to notions of self-defence, removing himself from a situation, and protecting property.  He said the family violence was never initiated by himself.  He described his behaviour as reactive.
31.	If the Father believed, at any relevant time, that he had an anger management issue, he did nothing about it.  When he saw Dr B, for example, between 2006 and 2008, it was not to obtain assistance in managing his own emotions, but rather to help him deal with the Mother.  It was only by the time of the final two days of the Hearing that he had undertaken two sessions of anger management therapy.
32.	The Father never lost his composure in cross-examination.  He gave evidence in a matter of fact way.  In many other cases, his manner of giving evidence in cross-examination would be regarded as impressive.  It is only when the Court looks very closely at what, precisely, he said in cross-examination that it becomes apparent just how disturbing the evidence is.  His ability to put a different spin on the events described by the mother was impressive, but again in a disturbing sense.  For example the evidence is that on 25 December 2007 his left arm hit the left-hand side of the Mother’s face.  He agreed with this.  He was asked by Counsel for the Mother whether this was accidental.  Clearly it was not, because he did not take advantage of the proposition put to him.  Instead, he described it as “a reaction” to what the Mother was doing.  He then clarified that in fact he did intentionally hit her but it was in the context of trying to get her off his back, in a physical sense.
33.	The Father’s contention that certain violent events were precipitated by the mother having consumed excessive alcohol (for example Christmas Day 2007) is simply implausible.  He agreed, for example, that after the violent incident he left the home leaving the Mother, who he described as clearly intoxicated, to care for three young children.  This creates a dilemma for the Father.  Either she was not nearly as intoxicated as he contends such that he had no reason to doubt her capacity to care for the young children, or he was prepared to leave the children in the care of a clearly intoxicated mother with whom he had been involved in a violent episode.  It is more likely than not, having regard to all of the evidence before the Court, that even if the Mother had consumed alcohol, she was not intoxicated to the point where she could not care for the children, which suggests the Father was minimising the nature of the violence perpetrated by him, whilst exaggerating the degree of the Mother’s intoxication.
34.	The Father was carefully cross-examined about his evidence in relation to violent incidents in those affidavits filed by him before the one relied on at the final hearing.  Even he had to concede that there were often significant differences in detail.  When it was put to him that later accounts of the violence given by him downplay his involvement in the incident he disagreed, saying that the later accounts merely “added detail”.  When confronted with inconsistencies in the evidence he had previously given about the violent incidents, he in fact changed his evidence in one material way.  In relation to the October 2009 laptop incident, for example, described by the Father at paragraph 92 of his Affidavit sworn 28 March 2014 he says:
	“I grabbed Ms Linson around her shoulders..”
35.	He then clarified this by saying that in fact he grabbed “around her neck, momentarily..”  He told the Court he wanted to correct his evidence, and it was an oversight in not correcting it before he had.  He frankly agreed that the incorrect reference to shoulders made the event sound better for him.  This is a serious admission by the father, in cross-examination, that some of his evidence about a violent incident was not just wrong, but crafted to put him in a better light.  Indeed, it was fairly and squarely put to him in cross-examination that when the inconsistencies in his evidence about this incident was emerging what he did was to strategise, knowing he would be caught out, and deciding to tell the truth.  The Father agreed with this.
36.	The Father was cross-examined about the evidence the Mother gives at paragraph 27 of her Affidavit sworn 10 July 2012 about an incident that occurred when she was six months pregnant with Z, and they were living in rented premises in (omitted).  This is a disturbing incident.  The Mother dates this incident as being late 2009.  The Father describes it at paragraph 92 of his Affidavit, as an event occurring in October 2009.  In his evidence the Father alleges that the Mother grabbed his laptop and threw it on the ground, and that he “grabbed Ms Linson around her shoulders”.  He denies that he kicked her to the left side of her knee.  The evidence had already established that in fact he grabbed her around the throat.  That is what the Mother alleged in her Affidavit.  She also asserted that he repeatedly pushed his index finger into her chest saying to her “hit me.  Hit me bitch” before pushing her into the wall of the master bedroom.  She says all three of the boys were present in the room to see what was happening.  She says that he started to smash the furniture in the bedroom, again the presence of the children.  She says that he said to the boys “quick, use mummy’s makeup to draw on the wall.”  
37.	In cross-examination the Father did not recall using his index finger.  He did not recall the children being present.  He accepted he “may have” said “hit me bitch.”  He denied that he was smashing the furniture but agreed that he was “pulling out drawers, and emptying the drawers.”  This did not constitute throwing things around the room, but he agreed that the contents of the drawers were emptied on to the floor.  He agreed that X, at the very least, eventually came into the room.  He agreed that his aim was to destroy the laptop, but described this as a case of “retaliating badly.”  He agreed that he said to the boys, “quick, use mummy’s makeup”.  He agreed that he wanted one of his sons to draw on the wall with the makeup.  When asked what was the purpose of this he acknowledged that it was an “irrational thought.”  Was it to punish the Mother?  He replied “possibly.”  When you are angry, you are capable of irrational thoughts?  “That time, yes” was his reply.  He agreed this could happen even in the presence of the children, that it might involve the children and that in fact on this occasion he had recruited X in an act to punish the Mother.  
38.	All of this disturbing evidence came out in cross-examination, and is not to be discerned from the Father’s depiction of this event in his evidence.
39.	The Father does not depose to an incident that occurred in June 2003, described at paragraph 28 of the Mother’s Affidavit of 10 July 2012.  However, in cross-examination he recalled the incident and agreed she had a black eye.  It was suggested to him that the Mother received a black eye after he punched her.  His response was, “I don’t think it was a punch.”  He agreed that something happened, but he didn’t recall what.  He accepted that the black eye was the result of a scuffle between the Mother and himself and that he had called her a “nagging cow.”
40.	The Father was cross-examined about the violence that is alleged that he perpetrated towards the children.  He agreed that sometimes the children were smacked, but that it was not violence.  The line of cross-examination is set out below in summary form.  He was reminded of an incident that took place on Christmas Day 2009 in which the Mother alleges he hit W across the head.  Initially the Father said that he did not recall the incident.  He agreed that if it happened, it was a significant overreaction on his part.  When reminded about the allegation – that he got angry at W who was then 5 years old for incorrectly putting certain stickers on a truck that he had received as a Christmas present, he acknowledged that he “vaguely remembered a little flick”.  It was a slapping motion?  “Yes” was his reply.  W, then 5 years old, was having trouble putting stickers in the right place on a new Christmas present.  So dad flicks him on the head?  “Yes”, was the reply.  Counsel for the Mother gave him the opportunity to explain his thought processes.  He said “it was crazy.  It was extremely inappropriate.”  The Mother characterised this incident as violence.  Whilst the Father does not agree with that characterisation, he agreed it was extremely inappropriate.  
41.	The real issue in this case is how W would characterise this event, when viewed in the context of all the other events of violence that he appears to have experienced in his life.  At the very least, the hypothesis put forward by Dr H that events such as these engendered a fear of the Father in W is more likely to be right than wrong.
42.	The Father agreed in cross-examination that he called the children “little fuckers.”  He said, however, it was once, in the heat of the argument, and that he later retracted the comment.  The significant evidence of the Father’s minimisation of his evidence in relation to family violence, makes it very hard to accept this.  The Father was then cross-examined about another incident involving W when he was getting ready for a bath but would not comply.  He accepted that he yelled to W, “You will do what I tell you to do, now.”  When it was put to him that he then physically chastised W, the Father explained words the effect, “No, we made a game of it, I grabbed him by his foot, he laughed, and I dragged him to the bath.”  The Father accepted both that, as a result of this, W suffered a large bruise, and that it would have hurt.  He accepted that if this was what the Father considered to be a game, it was a game that certainly hurt his son.  
43.	It should be noted that the above is by no means a comprehensive history of matters that transpired in the cross-examination of the Father that reflect very poorly on his judgment as a parent, his behaviour as the Mother’s partner, and his credibility about family violence relating to both the Mother and the children.  Indeed, the written submissions on behalf of the Mother comprehensively, and accurately, set out the violence she endured at [53].  As will be seen below, there are disturbing aspects of the Mother’s evidence, but for the most part, her evidence about family violence, both directed towards her and the children, is far more likely to be correct than the Father’s.
44.	As foreshadowed there is some disturbing aspects of the Mother’s evidence which will be dealt with in point form below:
•	The Mother’s consumption of alcohol during the relationship was far greater than she concedes.  Her case that Mr C was lying is plainly wrong.  She has minimised the nature and extent of her consumption of alcohol during the relationship. Whilst there is no suggestion that this had an impact on her parenting capacity, particularly in circumstances where she was clearly primarily responsible for the care of the children, the possibility remains that it was a contributing factor to the violent incidents, a matter at least inferred if not expressly alleged in the Father’s concessions and evidence about family violence.
•	The Mother has minimised her evidence about her own involvement in the violent incidents.  In all likelihood there were probably occasions when she took action that provoked the Father, and to which she then reacted herself including the use of physical violence.  What is clear from the evidence before the Court, however, is that the violence that she perpetrated was not of the same magnitude or degree as that of the Father.  In all the circumstances and the evidence before the Court, there were events when her violence was clearly reactive, contrary to the Father’s assertion that he was being reactive.
•	The most disturbing aspect of the Mother’s evidence, however, was the way in which she deceived the Father and the Court, and clearly manipulated the legal process by, for example, consenting to orders for supervised contact which she had absolutely no intention of ever complying with.  Often the orders that were made were orders that she proposed in her application to the Court.  In cross-examination, at times, she said that at the time of the orders she considered that it was the best outcome for the children, but when pressed it was clear that there was no relevant time since the date of separation, and certainly not during the course of the present proceedings, that the mother was prepared to countenance even supervised time between the children and the Father.  Any contrary assertion of the Mother in her affidavits, or in the Family Report, are patently false.  Her explanation that she felt badgered by the legal process, that she “didn’t feel my kids would be safe” at a supervised contact centre, that she “had to put something down” as a proposal is hard to accept.
•	The mother’s evidence about the representations made to her by CatholicCare, in relation to the nature of the supervised contact service offered at (omitted) is also patently false.  Her belief, for example, that supervised contact would be for no longer than three months, before progressing to lower levels of supervision, is nonsense.  Her statement that she was told by the contact centre that supervision was “out in a park across the road” is fabrication.
•	Like the Father, she made some startling concessions in cross-examination.  For example, she conceded that even if her beliefs about supervised contact at CatholicCare were wrong, she probably would not have let the children go anyway.  She conceded that the written commitments that she entered into with the supervised contact centre was, to her, “just a piece of paper.”  That this is also her attitude about Court orders is a finding that the Court makes.  She frankly conceded that the consent orders for family therapy made after day 2 of the proceeding was, from her perspective to “give evidence about what I have been through…and to give a voice to the children” rather than the clearly articulated purposes for which the therapy was ordered.  She openly stated that she was “not changing my position, and never will.”  She openly conceded that she would not comply with any Court orders for therapy because “enough is enough” and “I really need to move on with my life.”  Finally, when I asked her whether it would make any difference to her if I made findings which completely vindicated her of all the matters that she asserted, could I count on her support in making orders facilitating the children spending some time and communicating with their father, she said it would make no difference.
•	Despite these remarkable concessions, the Mother also explained that her stance was based on three factors, that is, that the children did not want to spend time or communicate with their father, that there was a history of family violence and finally that there was no evidence to suggest that he accepted any responsibility for his past behaviour.  All of the evidence leads the Court to conclude that these are matters genuinely believed by the Mother.  This is the Mother’s dogma.  She cannot be shifted from it.  As it turns out the Court accepts the second and third bases of the Mother’s dogma and appreciates that there is some objective basis for her assertion that the children do not want to go.
•	The Court does not accept the Mother’s denials as to the violence she perpetrated towards the Father.  When confronted with COPS entries indicating that following one of their violent incidents the Father had scratches on his neck and shoulders her response was, “I was being belted.  I do not remember much.”  She conceded that she “cannot guarantee that I did not scratch his neck.”
•	The Court does not accept the Mother’s evidence about the nature and extent of the personal training business that she operated, and possibly continues to operate.  She was plainly evasive about this.  The Mother’s true financial circumstances are probably not before the Court.  This is not a major issue.
•	The Mother clearly failed in her duty to put all relevant matters before the Court in terms of the dysfunctional past relationship she has had with her parents and the potential risk that the maternal grandfather poses to the children as a result of the past abuse he perpetrated on her.  The concession she made as to an order that she would not leave the children in her parent’s care unattended probably means nothing, given this Mother’s attitude about Court orders.  It was probably offered as a result of good legal advice, rather than any belief on her part that it was necessary.  Having regard to what evidence was before the Court, however, there is probably no unacceptable risk of abuse to the children that emanates from the maternal grandparents.
•	The Court can have no confidence whatsoever that the Mother would engage in any support, therapeutic or counselling services to assist her.  The evidence suggests she is not engaging in the services that she herself initiated in order to assist her.
•	The Court finds the Mother loathes the Father.  When she said in cross-examination that she had no idea whether the Father loved the children, her answer was disingenuous, and merely reflects the depth of antipathy she feels towards him.  When asked whether he loved the children before separation, her answer that she did not think so likewise reflects her feelings towards the Father.  She could find nothing positive about the father as a parent.
•	It is highly likely that the Mother’s toxic antipathy about the Father has been transmitted to the children either directly by her discussions with them, or their presence in her discussions with others, or indirectly by her attitudes, feelings, and the systematic elimination of all aspects of the Father in the children’s lives including, for example, photographs.  Her belief that the children have nothing to gain by having a relationship with the Father exudes everything she says, does and thinks.  It is inevitable that these children have picked up on this.
45.	As damning as the Mother’s evidence is in so many respects, the evidence needs to be understood in the context of the history of this case.  As Dr H explained these children have not necessarily been alienated from their father by their mother if they were first estranged from their father by his own actions.  The evidence tends to suggest that the family violence towards the Mother and the children occurred prior to separation.  If the children were already estranged from their father at this time as a result of his own actions, the Mother’s subsequent alienating behaviours must be understood in that context.  As Dr H said in cross-examination, this is not a “parenting Olympics”.  It is not a race to see who is the worst parent, who is the most evil, who has been the most damage, but rather a decision about what is in the best interests of the children having regard to the life that they have lived to date, and their future.
The Expert’s evidence
46.	Dr H's Report is dated 4 March 2013.  She met with the parents, the children and the maternal grandparents.  As the children strongly resisted spending any time with the Father, she did not see the children with him.  The background to the dispute, and current parenting arrangements that she describes in her Report, are consistent with the evidence.  By the time of the Final Hearing, the applications and proposals of the parties had changed, but before she gave evidence this was clarified.
47.	In relation to the Mother, she made the following observation at paragraph 8:
	She was emotionally self-composed rather than emotionally labile but appeared to be very stressed and anxious about the assessment.  She explained that she was worried about her children being frightened lest they would be forced to meet their father.  She reported that W had been wetting the bed for the previous four days in anticipation of this interview.
48.	Dr H explored with the Mother the issue of supervised contact at CatholicCare.  At paragraph 12 she recorded:
She had only suggested supervised care subject to anger management because she had felt badgered by this legal process to concede something, whereas in actuality she felt that contact with Mr Cripps would be bad for her children.
49.	Dr H was interested in the Mother’s background, particularly as a child and young person.  An impression formed from the Report is that Dr H found out far more about the Mother through, for example, the maternal grandfather, than she did from the Mother directly.
50.	At paragraph 14, for example, she records the maternal grandfather’s report:
	She left home at 13 after a period of high conflict with her mother – who had had her leg amputated around that period.  Ms Linson lived in refuges and then independently until she completed university only “coming back into the fold” in her early twenties.  Mr F explained the conflict by saying his daughter had always been a “stroppy child with high standards” who was “never happy with her life since she was a little kid.
51.	Dr H of course met with the Father.  His perceptions of the Mother are recorded at paragraphs 20 and 21:
	Ms Linson is a “control freak.”  He referred to the fact that during cohabitation she had not let the children see his side of the family and also resented him spending time with his mother.  He said she was “cranky most of the time” and became very aggressive after alcohol intake – even a small amount “flicked the switch.”  When she was belligerent he would “jump in the car and do my own thing.  I wouldn’t be controlled”… “once you burn Ms Linson it’s a life sentence.”
52.	At paragraphs 24 and 25 of the Report Dr H gave the Father some feedback after the children’s interviews:
	24.	Mr Cripps was given some feedback from the children’s interviews, and appeared to understand that it was too difficult for them to opt to resume contact with him under the circumstances of the assessment interviews.  He considered that he would have been demonised to the children by their mother over the past 18 months and that it would be a “long slow process mending” the rift. He minimised the extent of domestic violence the children had witnessed saying that on one occasion “X saw a scuffle but the others were in bed”  
	25.	Mr Cripps reported feeling guilty for being “a bit tough on W” who was a more sensitive child than X . Mr Cripps said he had had expectations that as the eldest W would be “more manly and not go off crying if told off for doing things” and used to tell the child to “toughen up”. 
53.	An interesting insight into the Father is gained at paragraph 27 of the Report:
	With regard to the mother’s proposal that he attend treatment Mr Cripps’ initial response was that it would be “a waste of time” but that if Court-ordered he would “play the game” but “throw back her need to address her binge drinking”  and “menacing” behaviour under the influence of alcohol, saying he had seen her attack her mother. Towards the end of the interview his attitude mellowed somewhat: in a calm manner he said he would do whatever he was asked in order to facilitate the resumption of time with his children. Mr Cripps presented overall as a reasonable, rational and self-controlled man who minimised the extent of family violence and his input into the couple conflict.  He did not seem free to evaluate his attachment relationships objectively, particularly not his relationship with his mother.
54.	Dr H observed the family interaction between the children, the Mother, and the maternal grandparents.  The interactions were appropriate.  Dr H met with W, and the report records at paragraphs 29-32 inclusive:
	29.	Although both his mother and grandfather reported that W was nervous and shy he agreed to speak to me alone. W agreed he had “butterflies in my tummy” about coming to talk to me at first, but soon relaxed and chatted happily abut school, friends and interests. In a projective test which probes the child’s affectional ties in a visual-spatial manner (placing manipulables representing family members on an A4 page relative to the child’s central position) W indicated that his mother, grandparents and siblings were all very close to his heart. He made a point of showing that Dad was not included in his family circle or his affections by placing Dad on the edge of the page. W made no mention of his paternal grandmother or any other paternal kin.  
	30.	W completed a Happiness Check-up. This visual analogue task presents a series of clines with a sad face at the south pole and a happy face at the north pole.  The child is asked to indicate a point on the line that shows how he feels in different situations. W indicated he was happiest at home with Mum, also very happy when with his grandparents but sad when he was at school. (He is in a different class from most of his friends. He denied that anyone was mean to him). He would be very sad if asked to visit Dad. 
	31.	It is usually too confronting to ask young children directly about their preferences for residence and visitation. Furthermore, as the research literature attests, it is easy to elicit distorted responses from children by injudicious questioning. Children may give the responses they imagine the interviewer is expecting and/or may agree with yes-no leading questions in order to end the conversation quickly (“gratuitous concurrence”). It is therefore important therefore to use conversational gambits which open up the space between yes and no so that young children can express a view if they wish but are not forced to address a difficult topic. If he had three wishes W said he would wish that
	- Dad was dead
	- I was rich
	- I was invincible so no one could hurt me
	32.	Asked to explain his first wish W said this was because “then he couldn’t hurt us” W went on to say that his father “doesn’t like people saying no to him. He was cranky. I don’t want to see Dad.”  W said Dad had been even crankier and meaner to him than to the other kids. How about meeting Dad somewhere other people were watching to keep kids safe (=CatholicCare)?  W opined that Dad would “just pretend to be nice and they’d be fooled.”  W also said spontaneously “He keeps calling us every week. We don’t answer” and indicated all telephone calls from his father would be unwelcome.
55.	W’s comments in the last paragraph are concerning because of their similarity to the Mother’s comments in relation to the Father.  In cross-examination Dr H acknowledged this and opined that as the children are aligned to their mother, W probably picked this up from his mother.
56.	In relation to X, Dr H noted at paragraphs 34 and 35:
	34.	X completed the same projective tasks as his twin.   X indicated that his mother, siblings and maternal grandparents were all close to his heart. He did not select a placement for Dad or any paternal kin. X indicated he is very happy at home with Mum or Nanny and Poppy. He indicated a point on the cline just over half way between sad and happy for his mood at school.  He was asked to use the same scale to rate how he felt “when other kids are mean” and crossed the sad face. (X did not deny other kids were mean, as W had, but this point was not probed further) X’s three wishes were
	- That Dad was a better person
	- That Dad would never hit or  throw Mum’s jewellery around      
	- That everyone in the world would be happy, there would be no bad guys, no mean Dads and no hitting
	35.	Shrugging his shoulders, X said it might be “kinda OK” to see Dad sometimes at CatholicCare and immediately went on to talk about a toy sword which could be used to pretend-fight zombies. When I to say more about seeing Dad sometimes X just said “kinda” again and returned to the theme of toy weapons. Children often evade awkward questions by introducing another topic but it was interesting that the theme of self-defence against monsters was apparently activated by the topic of X’s contact with his father. Like W, X declined the option to spend time with Dad in the playroom under my supervision or to say hello to Dad in the waiting room on the way out with Mum. (All the boys were asked whether they would rather leave by a side door or to pass through the waiting area where their father was sitting.)
57.	In relation to Y, Dr H records at paragraph 36:
	Y (6, 10) seems to be a cheery, confident little extravert. On the Happiness rating scale Y indicated he was very happy in all current contexts but would be very sad in the hypothetical context of visiting Dad. He ranged his family figurines in a straight line to the right of him, with the each placement of each successive representative touching the previous one. This pattern may reflect the child’s sense of family cohesion. Like his brothers Y selected Mum first and put her closest. He made no selection for Dad or any paternal kin. He also declined to meet his father. When asked how he would feel about seeing Dad at CatholicCare Y looked nervous and asked “What did my brothers say?”  He indicated that he would like to do whatever X and W did.
58.	Dr H’s evaluation commences from paragraph 40. She explained that the children are likely to find the introduction of supervised visits stressful at this time, and may resist to various degrees and in different ways. Z, in particular, was so young at the time of separation that she would be unlikely to be able to tolerate separation from her mother during a supervised visit to a stranger, in a strange place. W was found to have expressed a strong disinclination to spend time with his father based on fear of this father’s violence. She noted that X, however, expressed more ambiguity with his feelings, a mixture of aversion and hopeful longing for a better relationship. She thought that Y was taking his cue from his older siblings, but also was mildly averse towards seeing his father.
59.	In view of the Mother’s intractability, Dr H thought that any arrangement which required her to enforce the children’s attendance is unlikely to proceed smoothly.  She simply did not have it within her to provide the children with any reassurance.  She states at paragraph 41:
	If the father has perpetrated the family violence which she alleges it would be unrealistic to expect her to insincerely provide such empty reassurances to her children, and in fact it would be potentially harmful to the children’s attachment security with their mother if she did so.
60.	She explains that the boys’ aversion towards their father is understandable if they witnessed or experienced family violence or emotional abuse by him.  She felt that if this was the case, their preferences to avoid contact should be weighed heavily.  At paragraph 44 she notes:
	It may be that W, X and Y remember their father more negatively than is warranted due to their narrative convergence with their mother’s story. On the other hand, it may be that they have accurate, traumatic memories of maltreatment and if so care must be taken not to re-traumatise them by insisting on contact with their aggressor. The school counsellor who has established a treatment relationship with the twins advises caution about re-establishing contact with Mr Cripps. Apparently she found their memories of their father were anxiety-provoking. That is also the conclusion which would be supported by my clinical impressions at interview. W in particular seems to be traumatised. 
61.	Dr H thought that if the children have been traumatised by the Father’s conduct, having contact with him would re-traumatise them, even in circumstances where there might be a low risk that they would be physically harmed.
62.	She then considers the family violence allegations from paragraphs 46-48. She discusses the typologies of violence. At paragraph 47 she notes:
	Ms Linson did not allege sadistic cruelty or sexual violence for Mr Cripps. Ms Linson describes Mr Cripps as a man who is violent “behind closed doors” when he is displeased. While COPS and medical records indicate Ms Linson suffered physical harm at the hands of Mr Cripps she may not have always been a passive victim. Perceived injustice may have incited her to inflammatory behaviour – either as provocation or resistance to attack. On the other hand, Mr Cripps obscured the true extent of his contribution to the domestic violence which the subpoena materials reveal. Spousal abusers tend to minimize and deny the seriousness of physical harm inflicted, and stress the provocation by their spouses. 
63.	Based on the background information about both parents, Dr H thought that both parents were likely to be impeded in close relationships as an outcome of their developmental experiences.  Notwithstanding this, it is seen that the Mother’s parental sensitivity towards her children was adequate, and that she was normally nuturant, whereas the Father showed a much less parental sensitivity by, for example, minimising the extent to which the children might have been traumatised and realistically estranged from him, by witnessing violence.  At paragraph 52 she notes:
	Currently the father/child relationships could not provide emotional comfort and safety to any of the children during time spent alone with the father.  The disruption to continuous contact is one causal factor (particularly for Z) but it is likely that the children’s attachment to their father was always anxious given the chaotic, upsetting relationship between the parents – especially if the children ever experienced their father as terrifying (as would appear to be the case).
64.	In her report, Dr H noted the Mother’s belief that the Father could never change.  Dr H thought that the Father could well prove the Mother wrong by seeking professional assistance to repair the relational rupture, particularly as he had declared himself willing to do so.  She thought there was nothing to stop him from demonstrating his sincerity by entering into therapy designed to increase his parental reflectiveness.  As it turns out, this is quite significant.  The Mother had said much the same thing to him on 2 August 2011 in an email.  Dr H's Report was released on 18 March 2013.  The Father made no attempt whatsoever to take Dr H’s advice on board until after the conclusion of the second day of Hearing.
65.	Dr H’s conclusions are found at paragraphs 55-59:
	55.	If the Court finds that the mother’s allegations about the father’s spousal violence and child maltreatment are supported by the evidentiary material then it would be in the best interests of the subject children to have no contact with their father at this stage.
	56.	If the Court finds Mr Cripps willing and able to acknowledge, address and amend any of his behaviour which has contributed to the children’s current fearful aversion towards him, he should be referred to an appropriate psychotherapist in order to develop his parental reflectiveness, with supervised contact to depend on treatment outcomes. 
	57.	If supervised contact is found to be suitable, the children may benefit from professional assistance to prepare them for re-engagement with their father and then to monitor the process. If W, X or Y were to show clinically significant signs of stress or anxiety supervised contact should be suspended. Their school counsellor should be able to advise. The family should also be referred to an appropriate program/service at Relationships Australia. 
	58.	Ms Linson would also benefit from psychotherapy aimed at developing her reflective capacities, as those who do not learn from (relationship) history are doomed to repeat it.
	59.	Leave should be granted to release this report to Relationships Australia (or other service provider) to whom the family members are referred.
66.	Dr H was extensively cross-examined on day 4 of the Hearing, after the parents had been cross-examined.  The following points emerge from her cross-examination:
•	The concessions made by the Father in cross-examination about the nature and extent of the violence perpetrated, was explained to Dr H.  She indicated that if the evidence was accepted, the Father’s behaviour probably indicated that no contact should be ordered.  She explained that her recommendation did not depend upon any assessment that the children are exposed to an unacceptable risk of harm in his, that is, the Father’s care, but was rather based on what would appear to be a pattern of coercive controlling violence by an unrepentant parent who thus lacked sufficient parental empathy.  The risk was that the children would be manipulated, rather than a physical risk.
•	She felt that the two sessions of therapy that the Father had undertaken in response to her advice was not of itself sufficient in the absence, for example, of a full acknowledgement of his behaviour and its consequences, an apology or expression of remorse, and the undertaking of active steps to change his behaviour.
•	If the Court did order the children to spend time with their father, the risk was that it would harm their attachment security to their mother, in circumstances where they had no attachment security with their father.  In these circumstances, contact offered no benefit, but indeed risks.  Even if the children were found to be aligned with their mother, this would change nothing.
•	Whether the children were realistically estranged from their father, as a result of his own actions, or alienated from their father, as a result of their mother’s actions, Dr H felt that it was going to be very hard for the Father in this case to repair that ruptured relationship, as he simply does not have the skills to do so.  From the children’s perspective, therefore, whilst no contact was not an ideal outcome it was the pragmatic one.
•	Counsel for the Independent Children’s Lawyer asked a question that led to Dr H raising the possibility of identity contact, limited to a number of short visits each year.  She explained that if the Court contemplated this, nothing positive should be expected out of it.  However, the children’s psychological individuation would be enhanced by occasional contact with their father.  Such contact would mitigate the possibility of him becoming either demonised, or idealised.  She explained “contact of this type is a gossamer thread – and it may not go anywhere.”  Whether identity contact was better than no contact depended on whether the Court felt that the children are genuinely terrified or traumatised by their father’s actions.  If so, no contact would be better.  If not, identity contact may create short-term harm, but long-term good, from the children’s perspective.  She thought that the difficulty in making a finding that the Father was a source of terror for the children, such that no contact would be ordered, is that they are so clearly aligned with their mother.  The Mother would, in any event, be anxious and resentful even about identity contact.
•	If identity contact were contemplated it could be as little as twice a year, or as much as four times a year, probably to coincide with major events such as Easter and Christmas.  Dr H thought that the Mother would probably need some form of coaching to help her through the identity contact idea.
•	Dr H was unequivocal about ruling out any benefit to the children of an order that they live with their father, and spend time with their mother.  She said that the total wellbeing of the children was far more important than maintaining the ideal of a meaningful relationship between the children and the Father.  The grief that they would experience, and the disruption they would suffer, living with their father would not offset any benefit that they would receive.  She was very clear in this regard – even if the Court found that the Mother had actively alienated the children against their father, much more than this was needed in order to reverse the existing living arrangements for the children.  In her opinion, the Father lacked the parental capacity to care for these children, so no change of residence could be supported by her.
•	Dr H acknowledged that during the report process she was alive to the possibility that the children had been coached or influenced by their mother.  She acknowledged that whilst there was “no Pinocchio test” the manner in which she opened up the conversational space with the children meant it was less likely that their answers could be coached or rehearsed.  She actively considered the two possibilities, that is, that the children’s traumatic memories were real, or alternatively that they were reciting a repeated history that had been distorted and intensified.  The problem was that even if it was the latter, if the children sincerely believe it, it is their truth.
•	Dr H was carefully cross-examined by Counsel for the Father.  She agreed that it was deeply concerning that the evidence indicated the Mother was simply unable to support the children’s relationship with their father, but confirmed that this in itself was not enough to justify a reversal of the existing care arrangements.  She was then presented with the evidence indicating that the Mother had failed to protect the children from the concerns that she held about the maternal grandfather who had abused her as a child.  It was put to Dr H that this reflected poorly on the Mother’s parenting capacity.  Dr H noted that the Mother had consented to orders not to leave the children in the sole care of the maternal grandparents.  She explained, however, that she was not surprised by this sort of under-protective behaviour, and that it was in fact the sort of behaviour to be expected from victims of abuse and violence.  She explained that such victims are often not adept at recognising danger and acting protectively, but even this was not enough of a concern to justify reversal of the existing parenting arrangements.  She explained there was no point removing the children from the Mother, and placing them in an environment with their father that was arguably worse.  She felt that the children’s fearful aversion of the Father was genuine, and that they simply did not have an established relationship with him.
•	Whilst Dr H was concerned about the Mother’s poor record of compliance with Court orders, she felt that a distinction needed to be drawn between those orders that the Mother genuinely believed might be harmful to her children, to other types of orders.  She explained that, in any event, like so many other factors, compliance with orders is “one part of a one thousand piece jigsaw puzzle.”
•	It was put to her that the Father was demonstrating insight into his past behaviour.  Dr H would not accept this.  She explained that his concessions came at a late stage, and under pressure, and was thus not a good indicator of parental reflectiveness, but rather suggestive of an “end game strategy.”  That the Mother did not acknowledge her own involvement in family violence reflected poor insight.  But this was in a context of a case where both parents had maladaptive personality traits, and where lack of insight was a constant thread of their relationship.  Indeed she said words to the effect: “both parents are marginal parents.  One is possibly really insensitive, the other is only marginally better.” She emphasised that she was not advocating identity contact, but was merely setting out the positives and negatives of the various options available to the Court.
•	She was challenged about her analysis of the typologies of family violence and it was suggested that there was no pattern such that the violence in this relationship could be said to be coercive and controlling violence, particularly in the context of the Mother’s defensive violence.  She explained, however, that there is a big difference between the violence perpetrated by the Father against the Mother, and that which she perpetrated against him.  The boundaries in the typologies are not clear.  She pointed out that the Father’s own admissions suggested coercive tactics.  The focus needed to be on the nature of the violent incidents, rather than whether they neatly fell into a pattern.  She rejected the suggestion that the violence was a situational, or common couple violence, as the evidence about the Father’s behaviour contraindicated this.
67.	Overall, and despite the written submissions on behalf of the Father in this regard, the Court accepts Dr H’s evidence. Nothing that was put to her in cross-examination would detract from the evidence she gave. She quite properly put the focus back on the impact of various orders on the children, rather than assessing the comparative virtue and evils of both parents. Dr H seemed to be acknowledging that whilst the Mother could not possibly be considered to be a perfect parent, and clearly lacked insight in so many ways, in the circumstances the children were still far better off with her than with the Father.
68.	Subject to a consideration of the evidence overall, and the law, the Court accepts Dr H’s evidence.
Meaningful relationship
69.	The evidence is clear – these children do not have a meaningful relationship with their father. The Mother sees no benefit to the children having any relationship with the Father, meaningful or otherwise. She is resolutely opposed to anything that might see this happen.
70.	The Mother’s proposal is not conducive to the children having a meaningful relationship with their father.  The Father’s proposal clearly does achieve this primary consideration.  The Court doubts very much whether the Independent Children’s Lawyer’s proposal of identity contact would amount to meaningful relationship for the purpose of this consideration.  Meaningful relationship is an aspiration that simply cannot be achieved in this case without subjecting the children to the risk of emotional harm.
Protecting the children from harm
71.	The Court finds that there is no evidence that the children would be subjected to any form of risk of physical harm if the children were to have supervised contact with their father.  The Court finds, however, that there is an unacceptable risk of physical harm to the children if their time with him were unsupervised.  The Mother’s allegations about family violence by the Father towards the children are established.  Whilst he is clearly regretful of these events, can now see how inappropriately he acted, the fact is that the damage has been done and he has not demonstrated to the Court’s satisfaction that he has sought to help himself in any professional way.  Long-term supervised contact is not an acceptable option in this case, even if the Mother were to support the same, which she does not.  There is no evidence before the Court of anyone, other than a supervised contact centre or service, who could provide supervision on a long-term basis.
72.	The Court finds that the children, in any event, need to be protected from the risk of psychological harm whilst in their father’s care, arising from the violence that he perpetrated on the children’s mother, and to which they were exposed.  The evidence of W’s fear of his Father is clear.  He appears to be the one who was most directly exposed to the parental family violence, as well as often being the victim of his father’s violence towards him.  Fear is infectious it would seem, particularly amongst siblings.  It would not be possible to simply extract W out of the equation.
73.	The Father has perpetrated family violence, and the Court accepts Dr H’s assertion that it is probably of the coercive and controlling type. He has not apologised or demonstrated remorse for his behaviour. The admissions he made came during cross-examination. His attempts to rehabilitate himself have been too late, and too little. In these circumstances, the psychological risk to the children is real. Just as fear is infectious for children, so is the completely inappropriate attitude of power and control that permeates coercive and controlling violence, and that sense of entitlement and indifference towards the victim.
74.	The Court’s conclusion in this regard is unaffected by finding that the Mother participated in family violence, because the violence that she participated in was of a different degree and context.  She was volatile, and reactive.  Alcohol probably played some role.  The effect of her violence on him was insignificant compared to the effect of his violence on her, and the children.
75.	Needless to say, the Father is an unacceptable role model for these children, and whilst the Mother’s role modelling may not be ideal, this Court assesses that any risk to the children is far less with them in her care than in his.
76.	The need to protect the children from harm is a consideration that prevails over the benefit to them of having a meaningful relationship with their father.  A question for the Court is whether the recognition contact proposed by the Independent Children’s Lawyer, two contact visits a year, is a way of balancing these two primary considerations, that is, giving the children a chance of a meaningful relationship, whilst protecting them from harm.  The Court finds that on the evidence before it, the need to protect the children from harm outweigh any chance that, somehow, two brief contact visits a year would achieve a meaningful relationship.  Dr H raised identity contact as an option for the Court to consider, but not necessarily as an answer to this case.  Recognition contact would be stressful for the children and would, in any event, need to be supported by their mother, something which this Court finds she is quite incapable of doing.  In short, the benefits of recognition contact do not outweigh the disadvantages.
77.	The Court recognises that the absence of even recognition contact will mean that these children will probably not have anything to do with their father until they are old enough to make their own decision.  There is no doubt a psychological price they will pay.  If anything, Dr H minimised the adverse psychological impacts on them on this scenario.  Nonetheless, in the difficult and complex circumstances of this case, this Court judges the no contact option to be better than recognition contact.
Views of the children
78.	The child, W, in particular, has expressed a very negative view about spending time with his father.  The Court accepts that this is based on his genuine experiences with his father’s inappropriate discipline of him and the fact that W was not only present during incidents of family violence, but actively recruited by the Father in one instance.
79.	The Court, however, does not make its decision on the basis of this consideration.  The Court does not rule out the fact that W’s views have been influenced by his mother, which is inevitable given the implacable stance she has adopted throughout the course of these proceedings.
The nature of the children’s relationships
80.	The children do not have a relationship with their father and the obstacles to re-establishing this are, on the facts, insurmountable. For the reasons previously articulated, there is nothing the Court can do about this.
81.	The children have a good relationship with their mother.  She is able to meet their physical and emotional needs.  She clearly has deficits.  She cannot see any benefit of the Father in the children’s lives.  She cannot conceive of the possibility that the Father has changed, or can change.  The Court’s findings tend to suggest that her perception is probably right.  She has failed to protect the children from her toxic views about the Father.  She will be a good enough parent with a more than adequate relationship with the children.
82.	The children’s relationship with the paternal grandparents is problematic.  Clearly, historically, there has been a close and dependent relationship between the children, the Mother, and the maternal grandparents.  What was once quite a dysfunctional relationship between the Mother and her parents, is less dysfunctional.  The evidence suggests that her father abused her as a child, but she does not believe there is a risk that he will abuse her children.  There is no evidence to suggest that this has occurred to date.  She has offered to consent to an order that she will not leave the children alone with her parents.  There is no question about this mother’s protectiveness of the children, even to the point of ignoring Court orders and manipulating the legal process.  Her protectiveness is the clearest indicator that she does not believe that her father presents a risk to the children.  Despite the written submissions on behalf of the Father in this regard, the Court will make an order in terms of that proposed by the Mother.
83.	In short, a relationship with the Father is not possible. Dr H clearly felt that he lacked the skills to manage the transition of the children into his care, let alone then being a fulltime carer for them.
Facilitating and encouraging relationships
84.	Whether or not this is a statutory consideration that applies to the present case, it is certainly another relevant factor: s.60CC(3)(m). The Court finds the mother is completely unable to support any relationship between the children and their father. This is because of the family violence that she experienced, perpetrated by him. Dr H is right in suggesting that the children became estranged from their father as a result of this violence, both towards her, and to them. The relationship having been severed shortly after the date of separation, as a result of his own actions, the Mother did everything in her power to ensure that there was no prospect of the relationship being repaired.  If there were such a phenomena as post-realistic estrangement alienation, that is probably what occurred in this case.  If the legal system had the capacity to have intervened within weeks of the date of separation, rather than within years, the outcome might have been different for these children.
85.	Even on the Father’s proposal that the children spend time with him, or that they live with him, the Court would have lingering concerns about his ability to encourage the children’s relationship with their mother.  His behaviour and attitude in relation to his conduct, for example,  minimising, deflecting, justifying and plainly failing to accept responsibility suggests a deep seated attitude of lack of appreciation of the value to the children of their mother and of the important role she played in their lives.  There was a very disconcerting sense of self-entitlement, and a preoccupation with meeting his needs during the relationship, rather than that of the Mother and children’s, that causes the Court to be concerned about his capacity to foster and encourage the children’s relationship with their mother, even on his proposal.
Likely effect of change and separation
86.	The Father’s proposal, if accepted, would be an unacceptable developmental wrench for these children, something he himself conceded in cross-examination.  Needless to say, the same result would occur if the children were to live with him, rather than to just spend time with him.  His own proposal was inadequately considered, in terms of transition, and dealing with the complex emotional needs that the children would have.  In fact, little evidence was adduced by him to support his alternative proposal for the children to live with him.  He did not give the impression of having an extensive support system, let alone the emotional skill to be able to carry it out.  The change would be far too great for these children, and something that Dr H thought they could not cope with.
87.	The sad reality in this case is that even supervised time would be probably too much for the children to cope with in circumstances where their mother is so implacably opposed to any contact at all.
Issues of practical difficulty and expense
88.	There are no such issues presenting in this case.
Parental capacity and parental attitudes
89.	These two additional considerations can be conflated, in the circumstances of this case. Very little needs to be said, without merely repeating what has already been said. As Dr H said, deciding what is best for children is not a parenting Olympics, even in the reverse sense where one focuses on deficits rather than strengths. Having regard to all the evidence, the Mother has greater parenting capacity than the Father, and the Father has greater parenting deficits than the Mother. Even the Father conceded that the Mother was a good mother, a curious concession to make in cross-examination given that his case had, up until then, been presented on the basis that she was both violent and a drunk.
Family violence
90.	This has been discussed at length earlier in these reasons.  The Father has perpetrated family violence against the Mother, often in the presence of the children, and separately against the children, particularly W.
The Order least likely to lead to further proceedings
91.	The finality of a no contact order means, barring an appeal, it is the order least likely to lead to future proceedings.  The making of any other order at all gives rise to the possibility of enforcement proceeding in circumstances where the Mother has so clearly demonstrated to the Court that she will not comply with any order that she does not believe is adequately protective of her children, even in circumstances where she disingenuously proposes the said order.  This is another contra-indicator to making an order for identity contact.
Order in the best interests of the children?
92.	Some of the strongest submissions made on behalf of the Father emphasised that even if findings of family violence were made against him, this did not necessarily mean that there is some form of risk to the children, or that a no contact order should result. Counsel is surely right in the sense that family violence does not, ipso facto, lead to any particular conclusion. The focus must always remain on the children in this case, and not children generally. But in relation to the children in this case, Counsel for the Father correctly submitted that there is “… barely a pulse to the relationship between the children and the father.  The mother has, objectively, done nothing to provide life support to this relationship …” The totality of the evidence leads the Court to conclude that it was the Father’s aggression, violence, and lack of insight that principally contributed to the very situation that Counsel so poignantly describes, both as regards the children and their mother. Moreover there is no benefit to these children that exceeds the emotional burden on them of keeping their relationship with their father on life support through identity or recognition contact a few times a year. Regrettably, the enormous complexity of the operative factors in this case can only lead to a conclusion of no time at all with their father. This is the drastic outcome necessitated by the evidence in this case.
93.	It must follow that sole parental responsibility should be ordered.  Even if the Court were required to consider equal or substantial and significant time, neither is, on the evidence before the Court, in the children’s best interests, or reasonably practicable.
94.	In her email of 27 January 2015 sent to all the parties and the Court, the Independent Children’s Lawyer sought costs from the Father in the sum of $4,435.  As at the date that these reasons are being published and Orders made, the Court has not been advised as to whether the Father has responded to this email.  If he has not responded, an inference can be drawn that he does not oppose the Order.  The Order will be made in the first instance, but should the inference have been drawn inappropriately, leave will be given to relist in this regard.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate:  

Date:	  27 February 2015

Schedule One
Date	Event	Source	
(omitted) 1967	Father is born 	F#2
	
(omitted) 1971	Mother is born	M#1
	
(omitted) 2002

(omitted) 2002	According to Mother:
parties commence living together. The Father moves into the Mother's apartment in (omitted).

According to Father:
parties commence their relationship.	
M#2

F#4
	
June 2003	The Father returns from drinking at his Mother's home. The parties argue and the Father punches the Mother in the face and leaves the apartment. The Mother receives a black eye as a result of the punch. The Father does not return to the apartment for 6 weeks following this incident. 
	M#28	
Approximately (omitted) 2004	When the Mother is 7 months pregnant with the twins, the Father becomes angry and pushes her into the wall. She hits the wall with some force and falls to the ground.
	M#26	
(omitted) 2004	Twins (W and X) born
	M#3, 8	
In or around (omitted) 2004 	Mother returns to work on a full-time basis after giving birth to the twins. The twins are cared for by the Maternal Grandmother, Ms P.
	M#9	
Beginning of 2005	Mother gives up work to become a full time homemaker and parent. Father continues to work full time.
	M#10	
Beginning of 2006	Parties move to new home at (omitted)	M#11	
(omitted) 2006	Y is born 	M#3	
Between May and December 2007	The Father is out of the family home during this period and living with his Mother. 
During this and other periods of separation, the children do not see their Father.
	M#40

M#42	
25 December 2007	According to Father:
Father has Christmas lunch at the Paternal Grandmother's home. When he returns home at approximately 6:00 pm, he observes the Mother to be intoxicated. To avoid confrontation and to stop the Mother drinking, the Father suggests that they go to a vacant block and let off some fireworks. After letting off a few fireworks the Father seeks to go home. He and X begin walking home but the Mother wants to let off some more. When they return home, the Mother gets more fireworks and waves them around while she has a cigarette lighter in her other hand. The Mother says "I will light these in the fucking house. I don't care. You are such a wimp Mr Cripps. Fuck off". Father attempts to take the fireworks from the Mother's hand. The Mother punches and kicks the Father's face and body. The Father goes to the study and grabs his laptop and tells the Mother he is leaving and will return when she sobers up. As the Father leaves the study, the Mother jumps on his back. The Father swings around his left arm and hits the Mother in the left hand side of her face. The Father then walks out the front door and places the laptop in his car and walks back inside to check on the Mother. When he returns, he finds the Mother lying on the ground. He checks that she is alright and then leaves. The Father sees X at the bottom of the stairs so he puts him to bed. He reassures him for 15 minutes until he falls asleep. After leaving X's bedroom, the Father asks the Mother if she is okay but she does not respond. The Father observes that she looks okay. The Father leaves the house and attends (omitted) Police Station and reports the incident. The Father is advised by the Police that the Mother has been taken to (omitted) Hospital.

According to Mother:
The Mother and Father enjoy a bottle of wine together and the children go to bed at approximately 8 pm. X gets out of bed and the Mother allows him to wrap a birthday present for a friend's birthday. The Father becomes upset and enraged that the Mother swears at him. The Father hits the Mother in the left eye with an open fist causing her to fall to the ground. The Father then straddles the Mother's legs and hits her on the right side of her mouth cracking her front tooth. The Mother observes the Father to be very enraged. She grabs him by the shirt to try and get him off her and the Father hits her to the left side of her jaw. The Father then leaves the home. X witnesses the entire incident and becomes distressed and cries. The Mother calls a neighbour for help and the neighbour calls the Police. The Police determine the Mother needs an ambulance and she is taken to (omitted) Hospital for head injuries. The Mother's parents come from (omitted) to care for the boys. The Mother is discharged from the Hospital the following day. The Father leaves the home to go to his Mother's. Several weeks later the Mother receives an AVO from Blacktown Court. The Police tell the Mother that the AVO was lodged by mistake. The Father subsequently seeks to revoke the AVO.
	
F#81 – 85

M#66 – 67
Annexure "D"	
After December 2007 	Father arranges a consultation with Dr B in (omitted) to seek professional assistance and advice about dealing with stressful situations and how to deal with altercations with the Mother.
	F#90	
Early 2008 	The Father notices that the Mother has brought home various items which he believed/suspected were stolen goods. 
	F#116	
March 2008 	Mother sends the Father a text message that she has been caught shoplifting by the Police and to hide all of her goods.
Mother is caught shoplifting in (store omitted) at (omitted) Shopping Centre. She uses Y's pram to hide the stolen goods. 
The Mother is charged with stealing and receives a 2 year good behaviour bond. The Mother is also banned from all (omitted) Shopping Centres for 12 months.
	F#117

F#118	
In or around 2008	The parties sell their (omitted) home and the Mother's (omitted) Apartment and they buy a vacant block of land at (omitted). 
While the (omitted) home is being built, the parties live in rental accommodation in (omitted). 
The Mother continues to care for the children full-time and the Father works outside the home full-time. 
	M#15 & 16	
16 April 2008	Final AVO made at Blacktown Local Court protecting the Mother for 12 months. 
	M#68
Annexure "E"	
June/July 2008 	The Father attends Blacktown Local Court in relation to an ADVO that has been taken out against the Father. The Father tells the Magistrate that he does not feel threatened by the Mother and the ADVO against the Mother is therefore dismissed. 
The Father consents to an ADVO to protect the Mother for a period of 12 months.
	F#87

F#87	
25 December 2008 	Father asserts that the Maternal Grandfather places a full bottle of Boags beer in Y's mouth whilst a photo is taken. Y is 18 months old. 
	F#79
Annexure "P"	
2008	The Mother smashed a crystal wine glass on the bench. This was witnessed by the twins and Y.
	F#95	
January 2009	The twins separately tell their Mother that, "Daddy threw X across the lounge room floor because X would not do what he was told." 
	M#34	
February 2009	The Father becomes angry about the boys' toys. He yells at the Mother. He picks them up and throws them into another room with enough force to break the toys. The Father picks up an Xbox controller and begins smashing it against the fire place mantel. With a smile on his face the Father looks at the Mother and says to her, "I will use the boys to get to you." The boys are very distressed and begin screaming, No daddy no." Father storms out of the house calling the boys, "Little fuckers" and does not return home for three months. 
	M#29	
February 2009	The twins tell the Mother "Daddy picked up W and threw him across the bedroom. W hit his head on the bed." The Mother confronts the Father about this and the Father denies it. The same evening the Mother confronts the Father again and he becomes enraged and knocks the Mother to the ground and starts trying to twist her legs around each other. She screams loudly and the Father gets off her and walks away.
The following day the Mother asks the Father to see his doctor again to see if the doctor will give him medication. The Father laughs and tells the Mother that he has already seen his doctor and the doctor laughed at the idea of the Father going on anti-depressants. 
After this incident the Mother no longer leaves the boys in the Father's care whilst she goes shopping.
	M#35 & 36	
In or around October 2009	The parties have an argument. The Father grabs the Mother around the throat and repeatedly pushes his index finger into the Mother's chest. While he does this, he says to the Mother "Hit me. Hit me bitch" and then he pushes the Mother into the wall in the master bedroom. The Mother hits the wall with some force and it knocks the air out of her and she falls to the floor. All 3 boys are present in the room and see the incident. The Father then starts to smash the furniture in the bedroom and throws the Mother's makeup around the room. He pulls out the draws of the dressing table. He smashes and throws the Mother's jewellery around the room and her clothes. The children witness all of this and all become upset and start to cry. The Mother hears the Father say to the children after she leaves the room to call the Police "Quick use mummy's makeup to draw on the wall." The Father leaves and the Mother again phones the Police and tells them not to come.
 	M#27	
October 2009	Father is on the bed working on his laptop. The Mother asks to talk to him. The Father wants to finish what he is doing. The Mother grabs the Father's laptop and throws it to the ground. The Father continues to try to work and the Mother again grabs his laptop. The Father grabs the Mother around her shoulders and tells her that he will speak with her once he is finished. The Father denies that he kicks the Mother to the left side of her knee as alleged by the Mother. 
	F#92	
21 December 2009	The parties have an argument and the Mother goes into the bedroom. After an hour she tries to resolve the fight. The Father is watching the television. She asks the Father to talk and the Father grabs the Mother around the throat and kicks her on the left side of her right knee. The Mother feels immense pain in her knee and she falls to the ground. She crawls back to her bedroom. Her knee remains painful for a further 6 months and she is unable to do any running during this time. The Mother does not seek medical attention or Police intervention because she wants to shield the boys from the drama. 
	M#30	
25 December 2009	The Father and W are playing with W's new Lego toys. The Father is interrupted by a telephone call. W continues to play with the Lego. After 5 minutes, the Father walks over to W and forcefully whacks him across the head with an open hand without saying a word. The Mother intervenes and the Father says "he put the stickers on the truck wrong." The Father leaves the home. 
	M#31	
From December 2009 until January 2011	There are various incidents and arguments between the Father and the Mother. During these arguments the Father asserts he never assaults the Mother. When arguments escalated he chose to remove himself by leaving the home. The Father asserts that on various occasions that the Mother said denigrating things to him and locked the door or stood in the doorway from to stop him from leaving the home.
Father also asserts that the Mother became aggressive with him on various occasions and that she assaulted him. She threw bottles of wine at the Father, microwave, plates, food and fruit. The Mother also damaged their property by kicking walls and throwing objects. 
	F#93 – 94

F#95	
(omitted) 2010	Z is born 	M#3	
After January 2010 	After Z is born, the Mother is unable to drive for 6-8 weeks or carry the children. Despite this, the Mother refuses to allow the Father to drive the children to school or to help make their lunches.
	F#27	
Early 2010	Mother and Father attend parent teacher interviews for W and X. Mother asks the Father to stay outside to look after the children so that she can talk to the teacher. The Mother tells the Father that she will look after the children's schooling. After this date the Mother refuses to allow the Father to take the children to school.
	F#25 – 26	
12 April 2010 	The Father parks his car across the driveway before leaving the (omitted) home which results in the Mother's car being blocked in the driveway. She cannot move the car and cannot take the children to school. The Mother has to call upon her friends to drive the children to school. The Mother later asks the Father why he did this and he replied "Because you're a cow and I hate you. You took my laptop. "
	M#38	
June – August 2010	Father coaches the local junior soccer team, the (omitted). W and X are members. The team trains every Wednesday afternoon from 3:30 pm until 5:00 pm. The Father leaves work early each Wednesday to collect the children from home and take them to soccer practice. The Father also takes the children to their Saturday games each weekend. 	F#28	
January 2011	The Mother is downstairs in the kitchen when she hears the Father yell at W. She then hears a heavy thump and the sound of dragging and W screaming. The Mother races upstairs and observes W on the bathroom floor crying in pain. She picks him up and observes a large red mark and bruise appearing on the front of W's thigh. The Father expresses that the kids do not listen to him and he storms out of the bathroom and pushes X's bedroom door into the wall causing a hole in the wall. He kicks the child safety gate down the stairs causing bits of wood to splinter off the stairs. All 3 boys witness this incident. The Father leaves the home and then returns a few days later.
	M#32	
16 February 2011	According to Father:
Z is eating spaghetti in the highchair and the Father retrieves pieces of spaghetti she has dropped. The Father asks the child if she has had too much and the Mother becomes angry and yells at the Father. She then lunges at the Father. The Father picks up a tea towel and flicks it at the Mother at an attempt to have her move away (the Father does not recall hitting the Mother with the tea towel in a violent manner). The Mother throws a large apple at the Father's head and tells him that she is leaving and taking the kids away from him. The Mother then leaves with the children. 
The Mother returns later that evening with 3 Police Officers and the Father is given a provisional ADVO.

According to Mother:
The tea towel made contact with the Mother’s face and head. She was also holding Z at the time. The Mother spoke to (omitted) Police Station the following day to ask for an AVO and a COPS event number was issued.
	
F#97

F#98

M#65	
February 2011 	Parties separate

Father moves to his Mother's home in (omitted) in NSW

Father pays child support of $2,400 per month (including payment of school fees) until December 2013 when Father ceased contributing to school fees.
	M#21

F#4

M#22	
After February 2011 	After separation the children live with the Mother

The Mother allows the Father to spend time with the children at least once and sometimes more per fortnight at the MacDonald's Restaurant in the local area. The Mother is present during all periods that the children spend time with the Father. 

The Mother also allows the Father to attend the matrimonial home at (omitted) on 3 occasions to spend time with the children. The Mother is present during each time the children spend time with the Father.

During Periods that the children spend time with the Father. The Father asserts that the children are sad and very clingy with him. They frequently say to him "We miss you daddy, why aren't you with us and when are you coming home to stay."
	F#31

F#32	
May 2011 	The Father returns to the family home to mow the lawn. He spends 20-30 minutes with the children under the Mother's supervision. 
	M#43	
11 May 2011 	Mother sends Father an email stating that the Father's sporadic behaviour and sporadic contact with the boys is affecting the boys' home and school life and maybe he should see the children once a month and with no toys as a reward for not seeing them. 
	F#35	
After 11 May 2011 	The Mother only allows the Father to spend time with the children once a month. Father makes numerous requests via email and text message to see the children but the Mother ignores him. 
Any time the Father does spend with the children occurs at the park or by the harbour. 
	F#36	
Mid 2011	Mother allows the Father to care for the children while she competes in a fun run race in (omitted). 
	F#36	
Before June 2011 	The Father sees the children on 2 occasions only. 
One occasion being when he mowed the lawn and the second occasion being at (omitted) Park for an hour or so. The Mother supervises these contacts. 
After both occasions the boys say to the Mother "We don't want to see daddy anymore, he still scares us. We never know when he will get angry and hurt us again."
	M#44	
June 2011 	Father contacts the Family Relationships Centre at (omitted) to arrange mediation regarding the children. The Mother subsequently fails to attend and the Father is issued with a s.60I Certificate. 
The Mother refuses to talk to the Father and tells him that he is a "Hopeless parent". 
	F#37	
June 2011

15 June 2011	According to Father:
The Father meets the Mother and children at (omitted) Restaurant in (omitted) for dinner. The children are happy and excited to see the Father. 
Y asks the Father when he will be coming home and the Father tells him that he isn’t coming home and that Y and the others can see him at his new home. 
The Mother storms out of the restaurant with the children and the Father is left to pay for the dinner. 

According to Mother
The Mother allows the Father to have dinner with her and the children at (omitted) Restaurant in (omitted). The meal is a disaster. 
The Father is aggressive towards the Mother and says to the children "I am going to take you off mummy and you are going to come and live with me." He also says "Mummy is horrible; she can't look after you. Mummy needs to be reported to DOCS because she is not doing a good job looking after you." 
The children are traumatised by these comments and they are so upset that the Mother leaves before the dessert is served.

After this incident the Mother has great concerns about what the Father might say to the children during any unsupervised time.
	F#99

M#45

M#47	
After June 2011 	Father makes various requests to spend time with the children and these requests are all denied or ignored. 
	F#38	
12 July 2011 	Mother sends email to the Father accusing him of not being able to talk to her like an adult. The Father asserts that she says "this is going to be one costly, lengthy process".
	F#39	
2 August 2011 	The Mother sends an email to the Father expressing her views to the Father. 
	M#46
Annexure "A"	
3 August 2011	Father undertakes a pre-mediation interview at Relationships Australia, (omitted).
		
August 2011	W begins seeing school counsellor at Mother’s request	M#59
Annexure “C”
	
10 August 2011 until 14 September 2011	Father attends 5 or 6 sessions of the Parenting After Separation Program at Relationships Australia called "Focus on the Children", (omitted). 
	F#40
Annexure "B"	
12 August 2011 	Father sends an email to the Mother stating that he is extremely disappointed that the Mother has not returned his calls / messages /emails regarding his requests to spend quality time with the children. 
	F#42	
After August 2011	Children stop spending time with the Father
	F#6	
3 November 2011	Father is issued with a s.60I certificate by Relationships Australia. The FDR practitioner deems FDR inappropriate under sub regulation 25(2).
		
23 December 2011 	Father instructs his Solicitors (Verekers) to write to the Mother requesting time with the children from after school Friday until Sunday afternoon each alternate weekend. No response is received. 
	F#43	
December 2011 	Father attends the Mother's home to try to deliver Christmas presents to the children. The Father requests to see the children and the Mother refuses. The Father leaves the residence. 
	F#108	
Early 2012 	On the occasions that the children spent time with the Father at the (omitted) property, the older children ran out of the house to meet the Father. 
	F#33	
16 February 2012	Mother leaves the house and obtains the assistance of 3 Police officers to collect personal items. Father is advised that an AVO is being applied for.
		
In or around April or May 2012
	X begins seeing the school Counsellor. 
	M#59	
2 May 2012	Initiating Application filed by the Father. 
Father seeks Final Orders for shared Parental Responsibility, for the children to live with their Mother and for the children to spend time with the Father each alternate weekend from 4:00 pm Friday until 4:00 pm Sunday and in the alternate week from 4:00 pm until 6:30 pm Wednesdays. He also seeks time during all school holidays and special occasions. 
		
25 June 2012 	School Counsellor Ms S writes a letter advising about circumstances under which she has been counselling the boys.  
	M#59
Annexure "C"	
11 July 2012	Mother files Response to Initiating Application. 
The Mother seeks both property and parenting orders. 
In relation to the parenting orders, the Mother seeks sole parental responsibility and for the children to live with her. She also seeks order for the children to spend time with the Father on a supervised basis each alternate Saturday from 9:00 am until 4:00 pm. The Mother also seeks orders for the Father to submit to a Psychiatric Assessment and that he undertakes 6 months of Anger Management Counselling. In relation to telephone communication, the Mother seeks orders that the Father is entitled to contact the children once a week by agreement but if there is no agreement, from 6:00 pm until 7:00 pm on Wednesdays. The Mother seeks the same interim parenting orders. 

The Mother also files a Financial Statement.
		
16 July 2012	Parties enter into Interim Consent Orders in the Federal Magistrates' Court in Wollongong for the Father to spend time with the children supervised through CatholicCare at (omitted). 
The consent Orders note that the Father shall be entitled to telephone the children once a week if agreed but in the absence of an agreement each Wednesday between 6:00pm and 7:00pm. The Mother is to use her best endeavours to encourage to children to speak with the Father. 
The matter is adjourned to 18 September 2012.
		
After 16 July 2012	The Mother tells the children that their Father will be contacting them each Wednesday. The children reply "No we will not speak to him. Just hang up or don't answer the phone." The Mother tries to encourage the children however the boys says that they do not want to speak with the Father and that he scares them. The children are distressed and they cry and beg the Mother to not make them speak on the phone. Z is too young to express a view but she picks up on the boys' distress and cries also. 
	M#52	
17 July 2012 	Father contacts CatholicCare (omitted) and Completes an Intake Assessment. He is advised there is no waiting period.
	F#44	
18 July 2012 	Father telephones the Mother's residence to speak to the children. The Mother says to him "They do not want to talk to you". The Father asks the Mother to hand the phone to the children and the Mother says "No I won't be bullied by you". The Mother hangs up the phone. 
	F#45	
25 July 2012 	Mother completes an intake form for CatholicCare Supervised Contact. 
	M#50	
July 2012 – Approximately December 2012
	Father attempts to call the children each Wednesday but is unable to speak with the children. 	F#46	
By August 2012	The Mother decides that it is not in the best interest to answer the Father's phone calls.
	M#54	
15 August 2012 	Mother is due to attend an intake interview at CatholicCare. She is unwell and is unable to make it. She contacts the centre and advises them. The centre makes an appointment for her to attend on 10 October 2012.
	M#50 & 51	
18 September 2012	The parties attend Court and directions are made regarding the property matter. 

Parties see a Family Consultant for a Child Dispute Conference. The parties are seen separately and an Independent Children's Lawyer is recommended by the FC and for Subpoenas to be issued.

The Court orders an appointment of an ICL and the matter is adjourned to 13 November 2012. 
		
8 October 2012 	Mother is contacted by CatholicCare and advised that her appointment for 10 October 2012 needs to be cancelled. The Mother is not available until 30 October 2012 because of school holidays. She is told that somebody will be in touch with her but she is not contacted again by CatholicCare until after the release of the Family Report. 
	M#51	
30 October 2012 	Father asserts that the Mother completes an Intake Assessment at the Family Relationships Centre 3 months after Orders were made in July 2012. Father is advised by the centre that the Mother cancelled Intake Meetings on various occasions.
	F#47	
13 November 2012 	By consent, the Court Orders that the Mother will do all things as directed by CatholicCare in order to complete any necessary intakes or assessments of the children so as to allow supervised contact to occur; including delivering the children to CatholicCare as requested. 

An Order is also made for the preparation of a Family Report. 

The Court notes that the Mother has delayed in completing her intake requirements at CatholicCare but that she has now completed those requirements with the centre advising that contact will commence within 2-3 months and that the children will be required to complete their assessment prior to the commencement of supervised time. 

The Court further notes that it is in the contemplation of the parties and the ICL that the Family Report interviews be conducted subsequent to the children having some time with the Father on a supervised basis and the ICL is to liaise with CatholicCare and the Family Report writer with a view to appointments being facilitated at an appropriate time. 

The matter is adjourned to 10 April 2013.		
On or about December 2012 	The landline number at the (omitted) property is disconnected or changed. Following this the Father telephones the Mother on her mobile each Wednesday. The calls are either terminated or they ring out. 
	F#46	
December 2012 	Father is advised by the Manager at CatholicCare that the Mother did not facilitate the children attending their intake assessment. He is advised that the supervised contact program would be withdrawn if the children do not attend their Intake Assessment. 
	F#49	
December 2012 	Father sends Christmas presents to the children via post. The Father takes a photo of the presents and cards he sends the children. 
	F#109
Annexure "S"	
25 February 2013	Parties and children attend interviews for Family Report	Family Report p. 2
	
18 March 2013 	Family Report by Dr H is released to the parties. 
		
18 March 2013 	After the Family Report is released, the Mother forms the view that it is not in the children's best interests to have contact with the Father. 
	M#57	
26 March 2013 	The Father receives correspondence from the Manager at CatholicCare advising him that the centre is unable to complete the intake process because the Mother has refused to attend. CatholicCare is unable to complete the intake process. 
	F#50
Annexure "D"	
10 April 2013 	The parties attend Court and an agreement is reached that the Mother and Father will attend an informal mediation to discuss the option of the children resuming time with the Father. 
The Father's Solicitor writes to the Mother's Solicitor to attempt to arrange this. 

The matter is listed for a 2 day Hearing commencing 4 November 2013. 

The matter is adjourned to 7 August 2013 for further directions. 

The Court notes that during the period of adjournment, the parties will consider Relationships Australia or other therapeutic intervention as to the issues raised in the Family Report.
	F#51	
31 May 2013 	Father is advised by his Solicitors that Johnson Horsley Lawyers are no longer representing the Mother. 
	F#51	
28 June 2013 	Father's Solicitor writes the Mother directly to request that she engage with Relationships Australia or any other therapeutic institution. The Mother does not respond. 
	F#52	
25 July 2013 	Father's Solicitor has advised that Johnson Horsley Lawyers are acting for the Mother again and that she is receipt of a grant of aid to appear at the Final Hearing.  
	F#53	
7 August 2013 	The parties attend Court and the matter is adjourned to 3 September 2013. 

The Court notes that if the matter is not resolved by the adjournment date then the Court will make trial directions. 

The Court also notes that the ICL will arrange a Legal Aid mediation to be held on 27 August 2013. 

Specific property orders are also made in relation to the CTTT matter.
		
3 September 2013	The parties attend Court and trial directions are made. 

The Court also notes that the Legal Aid conference scheduled for 27 August 2013 is changed to 2 September 2013 because the Mother could not attend the 2:00pm timeslot on 27 August 2013.
		
8 October 2013 	Parties participate in a Legal Aid Family Law Conference. No agreement is reached. 
		
17 October 2013 	Father's Solicitor receives correspondence from Johnson Horsley Lawyers seeking an urgent relist because the Mother no longer has a grant of aid for a Final Hearing following the Legal Aid mediation. 
	F#55	
18 October 2013 	The matter is listed and the hearing dates for November are vacated. The proceedings are adjourned for Final Hearing on 10 & 11 April 2014.
		
November 2013	Father sends an email to the school requesting a copy of the children's school reports and information regarding the children's extra-curricular activities. The Father is advised by the school that they will need to seek confirmation from the Mother that the Father is indeed the Father before releasing any documents.

Mother receives a telephone call from the Principal of the children's school. She is advised that the school has received an email from the Father asking to attend all events. The Mother is alarmed by this. 

W and X also overhear their school teacher speaking to the Mother about the Father contacting the school. After this conversation with the teacher, the Mother finds W's arm covered in bite marks. She asks W why he did it and he replies "I was so scared that Dad would come to school and what he would do to me." The Mother takes photos of the bite marks. The Mother also raises this incident with the school counsellor.
	F#57
Annexure "F"

M#70

M#71	
26 November 2013 	Mother's Solicitors write to the Father's Solicitors advising that W has been self harming and he has been wetting the bed and requesting that the Father not attend the school.

The Father however continues to contact the Principal in December and request to attend presentation night. The Father is advised that he cannot attend.
	F#58 & 59
Annexure "G"

M#72
	
November 2013 – March 2014	Father calls the children on 16 occasions and the calls are not answered (6 November, 13 November, 13 November, 20 November, 4 December, 11 December, 18 December, 25 December 2013 & 1 January, 2 January, 8 January, 15 January, 22 January, 29 January, 5 February, 12 February, 26 February 2014). 
	F#46
Annexure "C"
	
16 December 2013 	Father's Solicitor writes to the Mother's Solicitor requesting further information about W self harming and wetting the bed. No response is received. 
	F#60	
December 2013	Father ceases to contribute to school fees – child support payments from this time reduced from $2,400 per month (inclusive of payment of school fees) to $1,975 per month
	M#22	
18 February 2014	Father submits an Application for contact to occur through CareSouth. 
	F#62	
19 February 2014	Father's new Solicitors "Gale Meredith & Associates" write to the Mother's Solicitor and request that the Mother complete an Intake Application with CareSouth because the waiting list with CatholicCare is too long. 

Mother's Solicitor writes to the Father's Solicitor advising that the Mother will not complete an application for CareSouth or CatholicCare because of the recommendations in the Family Report.	F#62
Annexure "J";
M#73
Annexure "H"

F#62
Annexure "K";
M#73
Annexure "I"
	
27 February 2014 	Father's Solicitors write to the Mother's Solicitor requesting again that the Mother complete an Intake Application with CareSouth that the Father will seek to have the matter relisted if the Mother does not complete intake. 
	F#63
Annexure "L";
M#74
Annexure "J"	
Early March 2014	The Father contacts Mr W at the children's school requesting a copy of school reports, school photographs and dates for the children's curricular and extracurricular events. The Father is advised that these will not be provided because the Mother has told the school not give out any information regarding the children. 
	F#103	
3 March 2014 	Mother's Solicitor writes to the Father's Solicitor advising that the Mother will not complete an Intake Application for CareSouth. The correspondence also asserts that the Father agreed not press for compliance of the Interim Orders (this is disputed by the Father) and advising that the Mother opposes any attempts by the Father to enforce the Interim Orders prior to the Final Hearing
	F#64
Annexure "M";
M#74
Annexure "K"	
5 March 2014 	Mother is contacted by CareSouth asking her to complete an intake. The Mother refuses. 
	M#75	
13 March 2014 	Father's Solicitor writes to the Mother's Solicitor seeking that the Mother facilitates telephone contact between the Father and children on the 13 March 2014. 
The Father's Solicitors receive a response from the Mother's Solicitors that the children do not want to speak to the Father and therefore the Mother will not force the children to speak with him.
The Father does not call the children as a result.
	F#65
Annexure "O"	
19 March 2014 	Mother is told by the Principal that the Father has been in touch with the school again and has asked for information about the children. 
	M#76	
21 March 2014	Father's Solicitor receives correspondence from the Mother's Solicitor requesting that the Father cease contacting the children's school. 
	F#104
Annexure "Q"	
31 March 2014 	The Father files an Amended Initiating Application seeking Final Orders for shared parental responsibility for the children live with the Mother and for the children to spend time with the Father on an incremental basis moving from supervised time.

For the first eight weeks he proposes to spend supervised time through Catholiccare each Sunday from 12noon until 2pm. 
For another eight weeks, he proposes to spend unsupervised time each Sunday from 12noon until 4pm. 
Following these eight weeks, he proposes to spend time with the children from 10am Saturday until 4pm Sunday for another eight weeks
Finally he proposes to spend time with the children from after school Friday until 4pm Sunday each alternate weekend. 

In the alternative, the Father seeks sole parental responsibility for the children and for the children to live with him. 
He also proposes that the Mother be restrained from contacting the children for a period of 3 months and then after 3 months, to begin spending time with the children incrementally. 
During the first stage of the Father's proposal, the Mother is to be supervised for a period of 6 months by either CatholicCare or CareSouth.
		
10 April 2014	First day of final hearing

Schedule Two
Minute of Order proposed by the Independent Children’s Lawyer

PARENTAL RESPONSIBILITY

1.	The mother is to have sole parental responsibility for the children W born (omitted) 2004, X born (omitted) 2004, Y born (omitted) 2006 and Z born (omitted) 2010 (“the children”).

LIVE WITH

2.	That the children live with the mother.

SPEND TIME WITH

3.	That the children spend time with their father as follows:
(a)	on two occasions each year for up to two hours each, one within the period one week either side of Easter and one in the two week period immediately before Christmas, as follows:
(i)	such time to be supervised by an agency such as Care South or CatholicCare (‘agency’);
(ii)	if possible, such agency to arrange for the collection of the children from the mother's home and to be taken to the location at which the children are to spend time with the father;
(iii)	if the agency is unable to collect the children from the mother's home in accordance with subparagraph (ii) above, the mother shall arrange for the children to be delivered to such place in time for the commencement of the children's time with the father;
(iv)	the father shall be responsible for arranging and paying for the services of such agency;
(v)	the father shall ask the agency to notify the mother of the details of the time the children are to spend with the father, as well as collection arrangements and in the event that the agency is unable or unwilling to notify the mother directly, the father shall notify the mother of such details in writing not less than 21 days before each meeting.
(vi)	the father shall be permitted to give the children small gifts or Christmas presents at such meetings with the children; and

(b)	at such other reasonable time as any of the children may request.

COMMUNICATE WITH

4.	That the mother ensure the children are at liberty to telephone the father at any reasonable times as the children wish to do so.

AUTHORISATIONS AND PROVISION OF INFORMATION
HEALTH

5.	That the Mother shall ensure that the Father is notified as soon as is practicable if any of the children:
(a)	is admitted to hospital with a life threatening condition; or
(b)	is diagnosed as suffering from a life threatening illness.

EDUCATION

6.	That, by these orders, any childcare centre, pre-school or school which the children are attending from time to time is authorised to provide the father with copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the father in relation to the children.

7.	That both the Mother and the Father be permitted to attend any school event relating to any of the children to which parents are ordinarily invited but the father shall be restrained from approaching or speaking the mother or the children at such events unless the children approach him.

CONTACT DETAILS

8.	That the mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.

9.	That the father keep the mother advised of his E-Mail address and telephone number at all times.

RESTRAINTS AND INJUNCTIONS

10.	That the Mother and the Father shall:
(a)	be restrained from:
(i)	discussing these proceedings in the hearing of or presence of the children;
(ii)	speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children;
(b)	take all reasonable steps to prevent any other person:
(i)	discussing these proceedings in the hearing of or presence of the children;
(ii)	speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.