FEDERAL CIRCUIT COURT OF AUSTRALIA
BRONSON & MAY	[2015] FCCA 82	

Catchwords:
FAMILY LAW – Whether husband’s anger and aggression a risk to children –    whether time spent between children and husband should be supervised.	

Legislation:
Family Law Act 1975 (Cth), ss.60B, 60CC
Family Law Legislation Amendment (Family Violence And Other Measures) Act 2011	

Applicant:	MR BRONSON	

Respondent:	MS MAY	

File Number:	DGC 2781 of 2011	

Judgment of:	Judge Phipps	

Hearing dates:	10 & 11 June 2014	

Date of Last Submission:	11 June 2014	

Delivered at:	Dandenong	

Delivered on:	16 January 2015	

REPRESENTATION
Solicitor for the Applicant:	Mr Kenna	

Solicitors for the Applicant:	Kenna Law	

Counsel for the Respondent:	Mr Gates	

Solicitors for the Respondent:	Littleton Hackford & D’Alessandro	

Counsel for the Independent Children’s Lawyer:	Ms Gordon	

Solicitors for the Independent Children’s Lawyer:	Reale Lawyers	
ORDERS
(1)	That all previous orders be discharged.
(2)	That the wife have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2009.
(3)	That the children live with the wife.
(4)	That the children spend time with the husband as follows;
(a)	if one is available, at a supervised contact centre nominated by the wife at such times as the Centre can provide; and
(b)	subject to paragraph 5, for four hours at a time by agreement in writing between the husband and the wife.
(5)	Any time spent by the children with the husband must be supervised by a person approved in writing by the wife or by a person approved by the wife being in substantial attendance.  The written agreement and approval, in addition to being in writing, may consist of a text message or email, and must specify whether the person approved is to supervise or be in substantial attendance.
(6)	For the purpose of any time the children spend with the husband changeover shall take place at a supervised contact centre nominated by the wife or otherwise at a place and in a manner nominated by the wife in writing including by text message or email.
(7)	That the children communicate with the husband by telephone on each Wednesday between 5.00pm and 5.30pm with the husband to initiate the call to the wife’s mobile telephone number.
(8)	That the wife shall at all times keep the husband informed of any medical condition of the children and give permission for the husband to communicate with and be provided information from any treating doctor or specialist with respect to the medical condition of the children.
(9)	That the wife shall provide written permission to any kindergarten or school attended by the children to release information to the husband with respect to the education of the children and any fee or charge associated with obtaining copies of any relevant material or information including school photographs shall be paid by the husband.
(10)	That each of the parties keep the other informed within 24 hours of any changes to their residential address or telephone and email contact numbers.
(11)	Each party is restrained by injunction from:
(a)	denigrating the other party to or in the presence of the children or permitting any other person to do so;
(b)	discussing any matter regarding these proceedings in the presence of the children or permit any other person to engage in such discussions in the presence of the children.
(12)	That the order appointing the Independent Children’s Lawyer is discharged.
(13)	Otherwise all extant applications are dismissed.

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

(1)	
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG	
DGC 2781 of 2011
MR BRONSON	
Applicant

And

MS MAY	
Respondent

REASONS FOR JUDGMENT
Introduction
1.	Mr Bronson, the husband, and Ms May, the wife, have two children X born (omitted) 2008 and Y born (omitted) 2009.
2.	The wife has a child by a previous relationship, Z born (omitted) 2002 who lived with the parties during their relationship.  The parties commenced cohabitation in (omitted) 2006.  They married on (omitted) 2007 and separated on 16 January 2011.  Since then all three children have lived with the wife.
3.	The husband commenced these proceedings on 8 September 2011 naming both the wife and Z’s father, Mr D, as respondents.  He applied for orders that all three children spend time with him.  The application involving Mr D and Z was resolved by a consent final order on 12 June 2012 providing that Z spend time with the husband as agreed between the wife, Mr D and the child Z.  The wife and Mr D had previously entered into final parenting orders in relation to Z which provide for Z to live with the wife and spend time with Mr D at times agreed.  Strictly speaking on 12 June 2012 a procedural order should have been made removing Mr D as a respondent but in practical terms that is what has happened because he has no interest in the proceedings involving the children X and Y and has not participated since 12 June 2012.
Issues and proposals
4.	The significant issues are:
a)	whether the parties should have equal shared parental responsibility for the children or should the wife have sole parental responsibility;
b)	whether the children can safely spend time with the husband without supervision or at least substantial attendance by a suitable adult.
5.	The husband proposes orders that:
a)	the parties have equal shared parental responsibility for the children;
b)	the children live with the wife;
c)	the children spend time with the husband;
i)	one day unsupervised with the children on each alternate Saturday.  The time spent will be doing an activity or at the paternal grandmother’s residence.  Time spent with the children will increase every six months upon consideration and agreement between both parties;
ii)	changeovers occur at (omitted) Police Station;
iii)	the husband have phone contact with the children every Monday and Wednesday from 5.00pm until 5.30pm;
iv)	the husband be permitted to attend extra-curricular activities, concerts, basketball training, parent teacher interviews and any activities associated to the best interests of the children;
v)	the husband spend time with the children on their birthdays for two hours;
vi)	the husband spend time with the children on his birthday and Father’s Day;
vii)	the husband spend half the day with the children on Easter, from 9.00am until 1.00pm;
viii)	the husband spend time with the children on Boxing Day from 9.00am until 5.00pm;
ix)	the wife provide the husband with photos of the children’s activities, functions and other events participated in by the children;
x)	such other times on family occasions reasonably agreed between the parties.
6.	The wife proposes orders that:
a)	the wife have sole parental responsibility for the children;
b)	the children live with the wife;
c)	the children spend time and communicate with the husband as follows;
i)	on one Saturday in each month for a period of up to 6 hours at the home of the paternal grandmother with the paternal grandmother to substantially supervise such spend time;
ii)	by telephone on each Wednesday between 5.00pm and 5.30pm with the father to initiate the call to the mother’s mobile telephone number;
iii)	at such other times and in such a manner as the parties may from time to time agree upon including special occasions on the basis that any face-to-face spend time shall at all times be supervised by the paternal grandmother.
d)	that for the purposes of all spend time provisions the father shall attend at the home of the maternal grandparents with the Supervisor at (omitted) to collect and to return the children and provided that if the father does not have access to a motor vehicle then he shall remain at a distance from the maternal grandparents home and not approach within 50 metres of the property’s boundary and in the event that the father has access to a registered and roadworthy motor vehicle (particulars whereof are to be provided to the mother prior to any spend time visit) that he shall remain seated in the motor vehicle and not alight from the vehicle at any time when attending with the supervisor to collect or return the children;
e)	that the wife shall at all times keep the husband informed of any medical condition of the children and give permission for the husband to communicate and be provided information from any treating doctor or specialist with respect to the medical condition of the children;
f)	that the wife shall provide written permission to any kindergarten or school attended by the children to release information to the husband with respect to the education of the children and any fee or charge associated with obtaining copies of any relevant material or information including school photographs shall be paid by the husband;
g)	that the husband attend and complete an authorized anger management course and provide to the solicitors for the mother written proof of completion of such course within six months of the date of these orders;
h)	that each of the parties keep the other informed within 24 hours of any changes to their residential address or telephone and email contact numbers;
i)	neither party shall in the presence of the children denigrate the other parent or permit anyone else to do so in the presence of the children;
j)	neither party shall discuss any matter regarding these proceedings in the presence of the children or permit any other person to engage in such discussions in the presence of the children;
7.	The Independent Children’s Lawyer proposes orders that the wife have sole parental responsibility for the children, the children live with the wife and that time spent by the children with the husband be for four hours at a time with a suitable adult agreed by the wife in substantial attendance.  The Independent Children’s Lawyer proposes changeover at a contact centre.
Family violence and separation
8.	The husband says that in 2010 he had time off work on WorkCover and after that he was diagnosed with depression for which he started taking medication.  He says that the medication made him have some angry outbursts where he would scream and yell and could not control his behaviour.  He says that the parties separated in January 2011 after he had an angry outburst due to his losing control.
9.	The wife says that the husband from the beginning of the relationship was controlling towards her.  She describes angry outbursts and gives instances of his controlling behaviour.  She says that the husband threatened to take his life in her presence.
10.	In cross-examination the husband conceded that he smashed objects in the home.  He conceded constantly arguing with the wife.  He conceded throwing a vase against a wall smashing it and hitting a picture.  He concedes he was angry but didn’t know why he was angry.  He concedes picking up a chair and hitting it so hard into the ground that the legs broke and that he took the chair back to the company from whom he bought it and claimed the warranty claiming that he was sitting on the chair and it happened to break.  He concedes that that claim was a lie.  He made this statement, “I admit the whole former violence when we were together”.
11.	The wife describes in detail the events which happened in January 2011.  She annexes to her affidavit statements she made to the police on 16 January 2011 and 20 February 2011.  The statements give more detail than the summary in the wife’s affidavit.
12.	From April 2009 the parties lived in (omitted).  The wife says that on Saturday 15 January 2011 the husband became annoyed with her because she wasn’t able to help him around the house as she had gallstones which caused her pain.  She describes events on Sunday 16 January 2011 and says that she decided to take the children to the park because she didn’t want to be around the husband while he was cranky with her.  As she was taking the children out to the car the husband told her she wasn’t going anywhere.
13.	She put the children in the car backed out and drove off and the husband followed her.  After a time he overtook her and put his brakes on and made her slow right down.  She turned into a driveway so she could turn around and go back the other way.  She heard tyres screeching.  The rear of her car was sticking out on the road slightly and she saw the husband reversing his car quickly towards the rear of hers.  The rear of his car collided with her car.  She says in her police statement that it was a very hard impact.  Z hurt his shoulder because it struck the side of the car seat next to him, he became really upset and the two younger ones were crying.
14.	The husband turned his car around got out and came to her window.  She locked the doors.  The husband started banging on the window and yelled at her to open the door which she was trying to open.  He kicked the bottom of the driver’s door and was banging on the glass with his fist.  She opened the window as she didn’t want him to break it.  She says the husband screamed at her to go home, she said she would not and he said he would burn the house down.  He got back in his car and drove off.  She says that while she was waiting for the police the husband rang her mobile phone about 18 times. 
15.	The police applied for and obtained an interim intervention order against the husband which excluded him from the family home which brought about the parties separation.  The intervention order named the wife and three children as the protected persons.
16.	The intervention order proceeding was heard at the Latrobe Valley Magistrates court on 21 January 2011 and a final order was made for 12 months.  On the same day the husband made an application to the court to vary the order so that he could return to the family home.  The application was listed on 24 January 2011.
17.	The wife attended court on 24 January 2011 and the police were assisting her in opposing the husband’s application.  She says that over the preceding weekend the husband had attempted to contact her over 200 times by text message and voice messages.  He continued to send her messages while they were waiting at court.  She notified the police and they spoke to the husband.  He ran up to her and grabbed both of her shoulders and was yelling at her.  A police officer wrestled him to the ground and she ran away and hid.  The husband was arrested and taken to the police station and the variation application adjourned to 25 January 2011.  On that day the intervention order was amended to reduce the distance from the former matrimonial home outside which the husband must stay to 50 metres.
18.	On 27 January 2011 the wife went to (omitted) Shopping Centre.  The husband was there and the wife saw him looking at her and then saw him twice more.  She was escorted to her car by a security guard and then reported what happened to the police.  She made a statement to police on 24 February 2011.  The police arrested the husband and he was held in custody for 28 days.  The police applied to vary the Intervention Order and on 23 March 2011 a Final Intervention Order was made extending it for a period of five years and increasing the distance clauses to 200 metres.
19.	At the Latrobe Valley Magistrates Court on 25 January 2011 the husband was convicted of contravening a family violence intervention order, assaulting police and stalking another person.  He was sentenced to an aggregate of four months imprisonment to be served by way of an Intensive Correction Order.
20.	At the Latrobe Valley Magistrates Court on 24 March 2011 the husband was charged with failing to comply with the Intensive Correction Order, stalking another person and contravening a family violence intervention order  The charge of failing to comply with the Intensive Correct Order was found proven and the original order was varied.  He was sentenced to a further 24 days imprisonment to be concurrent with the existing order to be served by way of an Intensive Correction Order.  On the charges of stalking another person and contravening a family violence intervention order he was convicted and placed on a Community Based Order for six months.
21.	The husband pleaded guilty to each of these charges.  The conviction for stalking on 24 March 2011 related to the events at the (omitted) Shopping Centre on 27 January 2011.  In cross examination the husband claimed that he was not stalking the wife, he was there to meet a friend.  He admitted pleading guilty to the offence saying that is what he was advised.  Of the events on 16 January 2011 he said that he tapped on the car window and tapped on the door with his foot.  He denies hitting hard and kicking hard.  He admits backing into the wife’s car.
The proceedings, subsequent events and family reports
22.	The first court date of this application was 31 October 2011.  On 31 October 2011 an order was made for the children to spend supervised time with the husband at (omitted).  The order provided for the husband to attend upon a psychiatrist for assessment and report and for the appointment of an Independent Children’s Lawyer.  The order for supervised time at (omitted) remained in place.  The application was adjourned for mention on 13 March 2012.
23.	By 13 March 2012 the supervised time at (omitted) house had commenced.  On that day an order was made for the preparation of a family report.  The supervised time continued and the application was adjourned for mention on 12 June 2012.
24.	A family report dated 26 May 2012 was prepared by Ms M.  In her evaluation she says that the husband acknowledges that he has an anger management problem.  He concedes that his behaviour whilst married to the wife was often violent and intended to intimidate and frighten.  Ms M says that in reflecting on his behaviour the husband had not shown any insight into the effect of his violent behaviour on the children.  She says that witnessing the family violence perpetrated by the husband is likely to have been very traumatic for them.
25.	The husband told Ms M that in 2011 he was diagnosed as having a Bipolar Disorder by the (omitted) CAT Team who attended him after he had taken an overdose.  Ms M spoke to Dr P of the (omitted) Medical Group.  He told Ms M that Dr T, a Mental Health practitioner had diagnosed the husband as suffering from depression and not Bipolar Disorder or anger management problems.  She recommended supervised contact with the children at (omitted) house until such time as a mental health authority or psychologist recommends gradual resumption of contact.
26.	On 12 June 2012 the final order in relation to the child Z was made.  The application in relation to the remaining two children was fixed for final hearing on 10 December 2012.
27.	On 4 September 2012 the husband filed an application in a case applying for unsupervised time.  He relied on reports from his general practitioner and his psychologist.  That application was dismissed on 15 October 2012.  And order was made for an updated family report.
28.	The updated family report from Ms M is dated 2 December 2012.  Ms M was provided with a copy of a report from Dr F with respect to the psychological health of the husband, a copy of a report from (omitted) house dated 20 March 2012 and a copy of the report from Dr A dated 7 March 2011.
29.	Ms M observed the children with the parents.  She observed that the children had wariness about them, a cautious and alert approach in the presence of their father, a lack of spontaneity and ease.
30.	Dr A’s report, which is not in evidence, was prepared for the purpose of the criminal charges against the husband.  Ms M says that in the report Dr A says that in his view the husband “does not present with the same insight as a normal person in the context of social interactions” and consequently does not understand the “consequences of his behaviour on his ex-wife”.
31.	Ms M interviewed the husband’s mother, Mrs J.  She said she was prepared to supervise the husband’s time with the children.  She believed the children would be safe in the husband’s care, subject to the supervision.  Ms M recommended that supervised time continue with the paternal grandmother as supervisor.  She recommended a further assessment in 2013 and says she believed that it is premature to consider final orders until about June 2013.
32.	The final hearing did not proceed on 10 December 2012.  The parties acted on the recommendations of Ms M and entered into consent orders that there be two further occasions at (omitted) house of supervised time with the paternal grandmother present and after that the children spend time with the husband from 10.00am to 2.00pm each alternate Friday until April 2013 and then from 9.00am to 4.00pm each alternate Friday, all supervised by the paternal grandmother.  An order was made for a further family report and that the matter be adjourned to 9 July 2013 for mention.
33.	Ms M’s further report is dated 12 June 2013.  By this time the wife was working every weekend in Melbourne and staying with her mother.  She was not receiving child support from the husband and although he had agreed to pay $1,000 per fortnight he had not.  She wanted to relocate to Melbourne where she had family support and so could have more employment.  The wife’s evidence is that she is prevented from selling her house in (omitted) and paying off debts by a caveat lodged by the husband.
34.	In her evaluation Ms M says this:
	Part of the writer’s concerns in regard to Mr Bronson’s parenting and also in his general disposition, is the impression that he is a very determined man and has a need to dominate.  In some instances, these traits can be assets, but in others, particularly in caring for children, they can be damaging.  It is also believed that the type of violence perpetrated by Mr Bronson towards his family is what is termed coercive controlling violence and the risks associated with this type of behaviour are high.  It is believed that the effect of  that violence are still having a harmful impact on Ms May and her elder son Z.“
35.	Ms M referred again to Dr A’s assessment of the husband’s lack of insight about the effects of his behaviour on the wife.  Ms M expressed the opinion that this limited insight is likely to extend to the husband’s parenting relationship with his children and his ability to be fully sensitive to the children’s emotional needs.
36.	Ms M said that there was substantial benefit to be gained from the wife and the children being able to relocate themselves in Melbourne.  The wife would be well supported she would have the support of her family and be in a position to seek additional employment for her financial security and comfort.
37.	Ms M recommended that supervised time continue from 10.00am to 2.00pm on a suitable day each week, the supervision to be undertaken by the paternal grandmother.  She recommended that the supervised time continue until the end of 2013.
38.	On 9 July 2013 orders were made by consent that the children spend time with the husband each alternate Saturday between 10.00am and 4.00pm, supervised by the paternal grandmother and telephone communication each Thursday between 5.00pm and 5.30pm.  The orders for changeover were:
	3. That, to facilitate the time pursuant to paragraph 2(i) hereof the father collect the children from the maternal grandparents residence situated (omitted) on condition that the father shall not alight from his vehicle.
	4.  That, the mother (or her agent, collect the children from the residence of the paternal grandmother situated at (omitted) at the conclusion of time pursuant to paragraph 2(i) hereof and the father shall remain in his mother’s house at the changeover.
39.	The application was again fixed for final hearing on 21 November 2013.  The material filed did not contain all the information which would enable a determination to be made whether the children could have unsupervised time with the father.  On that day orders were made by consent that the children spend time with the father each alternate Saturday from 10.00am to 4.00pm supervised by the paternal grandmother being in substantial attendance.  The order required the father within 30 days to make, file and serve affidavits from his psychologist and his treating GP.  The order for changeover was:
	That in order effect changeover the Father and his mother shall collect the children and return the children to and from the home of the maternal grandmother with the Father to remain in the motor vehicle.
40.	The consent order contained notations:
	A  That the parents agree that there shall be open and frequent communication between the paternal grandmother and the Mother.
	B  That the Father agrees to pay to the Mother $70 per fortnight commencing 26/10/13 such amount to be paid changeover in addition to any child support liability is assessed.
41.	The first notation reflects that the paternal grandmother and mother have developed a good relationship to the extent that the mother has taken the children to spend time with the grandmother outside the provisions of the order and agrees that that should continue.  The second is because the father is on a disability support pension and pays no or minimal child-support and the mother has the expense of travel each weekend and is prevented from selling the home in (omitted) and moving to Melbourne.
42.	When the children started spending time with the father away from the contact centre he was living in (omitted).  After the orders of 9 July 2013 the time took place at the home of the paternal grandmother in (omitted).  In September 2013 the husband moved to live with the paternal grandmother and in December 2013 moved to (omitted) with his younger brother, Mr J.
43.	On 21 November 2013 the application was again fixed for final hearing and an order made for another family report.
44.	This family report, dated 22 April 2014, was prepared by Ms E.  She interviewed both parties and observed the children with each party.  She conducted telephone interviews with the paternal grandmother and the paternal uncle, Mr J.
45.	Ms E records the moves of residence by the husband.  She also records the wife’s statement that on 1 February 2014 and 15 March 2014 the husband cancelled his time with the children because he did not have a car.  The wife told Ms E that on 15 March 2014 X told his mother he was missing his paternal grandmother and so the wife contacted the paternal grandmother and arranged the time for the children to see her independently of the husband.
46.	An incident occurred in March 2014.  There was an altercation between the maternal grandparents, the husband and the paternal grandmother at the commencement of changeover.  The evidence is the description given by the paternal grandmother to Ms E and the husband’s evidence.  The paternal grandmother was not a witness.  She told Ms E that the husband wanted her to attend his solicitor to sign documents but she would not.  I infer that the husband asked her to provide an affidavit and she would not.
47.	On the day of the incident the husband did not have a car and he and his mother travelled to the maternal grandparent’s house by public transport.  The husband insisted on standing on the nature strip outside the maternal grandparent’s home while the paternal grandmother approached the house to collect the children.  The paternal grandmother reported what happened to Ms E.  The paternal grandmother tried on numerous times to tell the husband not to stand there but the husband insisted that the wife’s solicitor’s secretary told him that it was okay to do so.  The maternal grandparents abused the husband and the paternal grandmother because the husband should not have been standing outside the house due to the intervention order being in place.  The children were not handed over.  The maternal grandmother later apologised to the paternal grandmother, and they continue to enjoy a civil and cooperative relationship.
48.	The husband claims that he telephoned the wife’s solicitor’s office and spoke to the solicitor’s secretary who told him that it would be all right to wait on the nature strip.  He acknowledged that the fortnight before he had waited further down the street.  When it was put to him that he was in breach of the intervention order at one stage she said that the intervention order referred to (omitted), the address where the mother lives.  His main response was that he claimed that the secretary had told him it would be all right.
49.	The wife in one of her affidavits says that the allegation about the statement by her solicitor’s secretary is denied.  There is no affidavit from her solicitor or the secretary and it would be an unnecessary expense for that to have been done which may then have required them to attend the cross examination, particularly when the wife is assisted by legal aid.
50.	The husband acknowledged that the fortnight before he had waited further down the street and the children came to him.  When he was asked why, when the paternal grandparents objected, he did not move down the street out of harm’s way, he again referred to his claim that the solicitor’s secretary had said it would be all right.  He said that when he had a car the children would come and sit in the car with him while the grandmother’s spoke, which took 10 to 15 minutes.  He wanted the children to speak to him during those 10 or 15 minutes.
51.	I consider it improbable that a solicitor’s secretary working in the family law jurisdiction would make a statement such as the husband alleges.  The probability is that she would say she could not answer that question and would refer it to her employer.  Apart from that, if the husband did believe that the secretary made the statement it shows his lack of insight into the effect on the wife and her family of his previous behaviour that he believed that this was a satisfactory way of varying the changeover arrangements.
52.	The intervention order provides that the husband must not “knowingly approach or remain within 200 metres of a protected person”.  The children are protected persons named in the order.  The further provision of the intervention order is that if the husband does not commit family violence while doing so he will not contravene the order by “doing anything that is permitted by a Family Law Act 1975 (Cth) order, a child protection order or a written agreement about child arrangements”.
53.	The order of 21 November 2013 provided for the husband and his mother to collect the children with the father to remain in the motor vehicle.  While the husband had a motor vehicle he had remained in it while his mother went to the grandparent’s house and collected the children and all changeovers had taken place smoothly.  Probably the correct interpretation of the combination of the intervention order and the order of 21 November 2013 is that if the husband did not have a motor vehicle he had to remain 200 metres away from the grandparent’s residence, that being where the children were.
54.	It matters little what the proper interpretation is or whether the husband had the conversation with the wife’s solicitors secretary as he alleges.  If the husband had a proper insight into how his behaviour might affect the children, the wife and her parents, he would have realised that the maternal grandparents would find his standing on the nature strip outside their house threatening.  He should have realised, as soon as the grandparents objected to him being there, that the reasonable thing to do was to move away.  He should have accepted his own mother’s repeated requests to move away.  He should have known that by acting as he did he was risking not seeing the children, which did happen.
55.	The paternal grandmother confirmed to Ms E that she no longer wants to supervise the time between the husband and the children.  The primary reason the paternal grandmother gives is the husband’s inability to listen to her, respect her or take parenting advice from her.  She told Ms E she no longer wants to be caught in the middle of the parental dispute where both parents talk to her about the other parent.  She also wants her social life back.
56.	Ms E reports that the paternal grandmother considers the children are not at risk with the husband and that he does take care of their physical needs.  She tries to encourage him to interact more with the children.  She says the children will approach their father or her when they are upset, or want something.  The husband spends a lot of time on his phone or observing the children’s play rather than interacting with them.  She believes the husband lacks ability to initiate and actively encourage age-appropriate games and activities with the children at her home.  She has suggested and advised the husband on many occasions on how to interact with them in an age-appropriate way, that the husband does not listen to her or respect her views.  The paternal grandmother said she had noted an improvement with the husband’s ability to manage his temper, but stated “people don’t change”.  She believes the husband could manage on his own his time with the children but she considers he would struggle, sometimes he does not know what is going on with the children.  She said that should the husband be granted unsupervised time with the children she is willing for the husband to bring the children to her home during that time.  She will likely be at home, but there is no guarantee.
57.	The paternal grandmother told Ms E that when she collects the children from the maternal grandmother they usually have a discussion about the children or other things before meeting the husband waiting in the car.  The paternal grandmother said that the husband wants to know absolutely everything she has discussed with the maternal grandmother even if it doesn’t relate to the children.  The paternal grandmother said also the husband insists on knowing everything she discusses with the mother.
58.	Ms E interviewed the paternal uncle, Mr J by telephone.  He stated to Ms E that he believes his brother’s ability to control his temper and anger has improved a bit over time.  He said they still fight when the husband loses his temper and raises his voice but not as much as when they were living with their mother.  He recalled a time more than 12 months previously when the husband tried to strangle him and kicked him with the steel capped boots over a fine from a video shop.
59.	An affidavit by Mr J was filed.  He says that the incident occurred before his brother was diagnosed to be suffering from Bipolar Disorder and before he had commenced treatment and counselling.  He said a scuffle occurred but it was not as serious as the family report writer makes it sound and he says he was equally to blame for the incident.  He says that he now lives with the husband and can confirm that since moving in with him there has not been any incidence of arguments or violence, that he takes his medication as prescribed and that his manner has been controlled and predictable to me and to others around him.
60.	Mr J was not cross-examined.  Little reliance can be placed on his affidavit.  I am satisfied that Ms E has accurately reported her conversation with Mr J.  In cross examination she was not challenged on this part of her report.  The statements in the affidavit about the husband’s behaviour, while living with his brother, are contradicted by the brother’s statement to Ms E.  It is improbable that the brother, aged 24, could confidently say that the husband takes his medication as prescribed.
61.	Ms E says that the husband presented as a concrete and practical thinker with little insight into how his behaviour affects others.  She discussed with the husband the incident at changeover.  She says the husband has no insight into how his behaviour on that day was inappropriate and threatening towards the maternal grandparents when he could have avoided the situation by waiting a few extra metres away and out of sight of the maternal grandparents.  The husband stated to Ms E that he wanted the children with him on the nature strip whilst the paternal grandmother spoke with the maternal grandmother, which is normally 15 to 20 minutes.  He said when he had a car the children would normally wait in the car with him until the paternal grandmother had finished talking.
62.	Ms E says this:
	There is concern that Mr Bronson has not fully addressed his temper and aggression.  It does not appear that he has completed an Anger Management Programme, and it is unclear whether Ms L has addressed family violence with Mr Bronson during their sessions.  With his concrete thinking, he lacks insight into how his behaviour affects others and appears to have self-righteous views about what he is entitled to.  Despite the paternal grandmother trying many times to discourage him, Mr Bronson insisted on standing on the maternal grandparents nature strip, which demonstrates his determination, domination and lack of insight.  He lacked the common sense to keep away and not inflame the situation with the maternal grandparents.  It is recommended that Mr Bronson either completes an Anger Management Course or intense counselling specifically to address his aggressive behaviours.
63.	Ms E goes on to say that she considers the husband is quite limited in his capacity to interact fully with the children, which may also lead to an inability to meet their emotional and psychological needs in the future.  She said he continues to ask the children for a hug or a high five, a theme throughout the (omitted) house reports.  Ms E says that this is a sign that the husband is more concerned about meeting his own needs rather than meeting the needs of the children and wanting to force emotional closeness rather than allow the children to express closeness in a more spontaneous manner.  She says it is a concern that the husband has not shown appreciation and respect for his mother for the evident sacrifices she has made to promote his relationship with the children.
64.	In the report Ms E recommends that:
a)	the wife have the sole parental responsibility for the children;
b)	the wife keep the husband informed of the children’s health and education with the ability for the husband to contact the schools and other professionals to make his own enquiries.  Also for the husband to contact the children’s school/kindergarten directly to seek his own information;
c)	change overs of the children to occur at a Children’s Contact Centre;
d)	the husband to complete a parenting program and behaviour change programme;
e)	the children spend four hours of unsupervised time with the father until he has completed a parenting program and behaviour change programme.  The time to be spent doing an activity or at the paternal grandmother’s residence.  Once the father has completed the programs, consideration to be given to the children spending a whole day with the father every alternate Saturday.
65.	The order of 21 November 2013 required the father within 30 days to file and serve affidavits from his psychologist and his treating GP, the affidavits to address any diagnosis, prognosis in treatment and the father’s compliance with the same.  The husband did not do so.
66.	On 19 November 2013, and so prior to the order of 21 November 2013, the husband filed an affidavit from his psychologist Ms L.  Annexed to the affidavit are letters dated 8 June 2012 to October 2012, 28 June 2013 and 22 October 2013.  The letter of 8 June 2012 shows that the husband was referred to Ms L by his general practitioner on 17 January 2013 for psychotherapy to address symptoms of depression and Bipolar Disorder.  In the letter of 8 June 2012 Ms L says that she has read the reports from Dr A and Dr F and agrees with the diagnosis of Bipolar II Disorder Depressed Moderate Atypical Features.  Ms L concludes the letter with the statement that in her opinion the husband has the capacity to move forward with graduated reintroduction to unsupervised access, with the proviso that he continues with counselling and is compliant with medication.
67.	In the letter of 2 October 2012 Ms L recommends a graduated reintroduction to unsupervised access beginning immediately.  The letter of 28 June 2013 says that the husband brought his children to the last two sessions.  The letter says he has demonstrated appropriate parenting.  In that letter Ms L refers to some confusion over the husband’s diagnosis.  Ms L refers to the report by Dr A diagnosing the husband with High Functioning Autism Spectrum Disorder.  She says since then the husband has been assessed by psychiatrist Dr F who diagnosed Bipolar Disorder and no evidence of Autism Spectrum Disorder.  Ms L says that the last diagnosis is accepted by all of his treating professionals.
68.	The letter of 22 October 2013 says that the husband ceased sessions on 3 May 2013.  The husband had moved away and was seeking sessions elsewhere.
69.	While the husband did not file an affidavit from his psychologist annexed to his affidavit of 14 May 2014 there is a further letter from Ms L.  This says that the husband ceased therapy with the writer on 3 May 2013, he had completed therapy for his symptoms of Bipolar Disorder and had been stable on his medication for some time.  The letter says he appeared to be coping well managing his personal matters including the difficulties with the family court matter.
70.	The assessment by Ms L in October 2012 that the husband should have unsupervised access with his children is at odds with the recommendation of Ms E in her reports of 26 May 2012 and 15 October 2012 that there be supervised time only.  Ms E had access to the reports of Ms L’s, court material and had interviews with the husband, the wife and the husband’s mother.  Ms E observed the children with each parent.  Ms E gives detailed and cogent reasons for her recommendation and acceptance of her recommendation was reflected in consent orders made after each report.  Ms E’s opinion must be preferred to that of Ms L.
71.	Annexed to the husband’s affidavit of 14 May 2014 are these documents:
a)	a letter from (omitted) Community Health Service Ltd which says that the husband attended at group sessions for Men’s Behaviour Change Group on 13 occasions from 14 September 2011 until 18 January 2012
b)	a certificate of attendance by the husband at Centacare (omitted)  Post-Separation Parenting Seminar on 23 November 2012;
c)	a certificate of completion by the husband in a Skillshare course on Anger Management dated 14 May 2014.
72.	Ms E was aware of the first two courses but not the latter.  From the husband’s description the latter is a computer-based course where he had difficulty because he did not have access to a printer.
73.	The husband said he had been attending Men’s Shed meetings.  .
74.	The courses the husband had attended were not the programs that Ms E recommended.
Parental responsibility
75.	Section 65DA of the Family Law Act 1975 (Cth) provides for a presumption that it is in the best interests of children for parents to have equal shared parental responsibility.  The presumption does not apply if there are reasonable grounds to believe that there has been family violence.  There are reasonable grounds to believe that there has been family violence by the husband.  The husband admits the family violence.
76.	It is not in the best interests of the children that there be an order that the parents have equal shared parental responsibility. The order requires decisions about major long-term matters to be made jointly by the parents and requires them to consult the other person in relation to the decision to be made about the issue; and to make a genuine effort to come to a joint decision about that issue.  The parents have no face-to-face contact and the husband’s past conduct shows that there would be a real risk that he would abuse and possibly even assault the wife if they did have face-to-face contact.  The wife will not communicate directly with the husband and she has good reason for that.  The parties have communicated by way of a communication book but on the husband’s side much of the entries have been made or initiated by the paternal grandmother.
77.	All the family reports recommend the wife have sole parental responsibility.  Ms E did not have to consider the efficacy of such an order because the husband told her he agreed to it.  In his May 2014 affidavit he says that when he made that statement he did not understand what that meant and he repeated that in his evidence.
78.	The parties have no ability to consult and make a genuine attempt to reach agreement as would be required if an order for equal shared parental responsibility was made.  In addition, such an order would place a burden on the wife which could have a detrimental effect on her ability to care for the children.  She rightly fears the husband and would likely be emotionally affected if she was required to communicate with him beyond the requirements of the communication book.
Best interest considerations
79.	In making parenting orders the best interests of the children are the paramount consideration.  The best interest considerations are contained in s.60CC.
80.	The husband commenced these proceedings on 8 September 2011, before the commencement of the amendments made to s.60CC of the Family Law Act 1975 (Cth) by the Family Law Legislation Amendment (Family Violence And Other Measures) Act 2011.  After the commencement of the amendments, in applying the considerations set out in s.60CC(2), a court must give greater weight to the consideration set out in paragraph (2)(b).  I am not required to.  I must give each of the primary considerations in s.60CC(2) the weight which is appropriate in the circumstances.
81.	The first of the primary considerations contained in s.60CC(2) is the benefit to the children of a meaningful relationship with each parent.  The mother is the children’s primary carer and all the family reports note that she does that well.  The family reports and the reports from (omitted) contact centre show that the children will benefit from a relationship with the father if that can be done safely.  The children have enjoyed their supervised time with the father and in those circumstances can have a meaningful relationship with him.
82.	The second of the primary considerations is the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.  Relevant, too, is one of the objects of the children’s provisions in s.60B to ensure that the best interests of children are met by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
83.	In a passage from Ms E’s report set out earlier in these reasons she says that there is concern that the husband has not fully addressed his temper and aggression and she refers in particular to the incident in March 2014 where the husband refused to leave the nature strip outside the maternal grandparents house despite his mother asking him many times to do so.  Ms E’s concern is soundly based.
84.	At the hearing the husband continued to maintain that he was entitled to be on the nature strip.  His reason for wanting to do so was self-centred.  He wanted to spend the 10 or 15 minutes that the grandmothers would spend conversing at the door of the house talking to his children.  This shows no insight at all into how inappropriate that was and no insight at all about how inappropriate his behaviour was in not moving when his presence was objected to.  Ms E says:
	“With his concrete thinking, he lacks insight into how his behaviour affects others and appears to have self-righteous views about what he is entitled to.  Despite the paternal grandmother trying many times to discourage him, Mr Bronson insisted on standing on the maternal grandparent’s nature strip, which demonstrates his determination, domination and lack of insight.  He lacked the common sense to keep away and not inflame the situation with the maternal grandparents”.
85.	The husband’s condition of bipolar disorder was apparently diagnosed by Dr F and the husband was prescribed medication.  Dr F’s report is not part of the evidence.  The husband’s evidence is he takes the medication.  There is no evidence from any current treating medical practitioner about the husband’s current mental health, any medication prescribed by the husband or the husband’s compliance in taking the medication.  He last saw his psychologist in mid-2013.  The only recent professional assessment is that of Ms E which is unfavourable to the husband’s case.  If the husband does have a current treating medical practitioner I must infer that any assessment by that medical practitioner would not be more favourable than that of Ms E.
86.	The husband’s behaviour in the incident in March 2014 and his attitude to it demonstrated during his evidence shows that the risks to the children if they spend unsupervised time with him are still there.  In January 2011 his controlling behaviour towards the wife was such that he backed his car into a motor vehicle which contained not only the wife but the children.  There can be no confidence that if left with the children unsupervised or without at least a suitable adult in substantial attendance his anger and aggression might put the children at risk.
87.	Ms E recommends unsupervised time but only after the husband has completed suitable courses, and then only limited unsupervised time.  I consider that the risk of reoccurrence of violent and aggressive behaviour by the husband is too great to allow even limited unsupervised time, or it least time without a suitable adult being in substantial attendance.
88.	The only alternative to the paternal grandmother as a supervisor is a contact centre.  One might not be available and so the effect of making orders that requires supervision or substantial attendance by a suitable adult might mean that the children do not see their father and so do not have a relationship with him.  Notwithstanding this, risk of unsupervised time is too high.
89.	Once final orders are made the only mechanism for approval of a suitable supervisor or person to be in substantial attendance will be the agreement of the wife.  Unless the husband gets into a position where he can afford a professional supervisor the probability of the wife approving anybody other than the paternal grandmother is low.  The paternal grandmother, when talking to Ms E, did leave open the possibility of some involvement.  The relationship between the paternal grandmother and the wife is good to the extent that the wife acknowledges that the children should see their paternal grandmother.  This means that there is at least one possible avenue for the children to spend time with their father at least occasionally.
90.	The additional best interests considerations are not as significant in this case as the primary considerations.  I will deal with them briefly.
91.	The children are too young to express any views.  The children’s primary relationship is with their mother and I have already addressed the relationship with their father.
92.	The mother has shown a willingness to promote the relationship between the children and the husband.  She has complied with court orders.  In resisting the children spending any unsupervised time with the husband she has acted in the best interests of the children.  The children have needed protection from the husband’s anger and aggression.
93.	The wife has the ability to provide for the children’s needs including intellectual and emotional needs.  The husband’s ability to provide for the children’s needs, particularly their intellectual and emotional needs, is limited.  The evidence of the family report writers and the paternal grandmother shows this.
94.	The husband has a very unsatisfactory attitude to the responsibilities of parenthood.  In wanting to spend time with the children he concentrates on his own needs rather than the children’s needs.
95.	Family violence and family violence orders are relevant.  They have already been dealt with.
96.	The analysis of the evidence relevant to these additional considerations reinforces the conclusions I have reached looking at the primary considerations.
97.	The order will provide for time at a supervised contact centre to the extent that that is available, but otherwise any time the children spend with the husband must be with the agreement of the wife and supervised by a person agreed by the wife or with the substantial attendance of the person agreed by the wife.  The agreement must be in writing which will include a text message or email which must be from the wife containing all the terms of the agreement.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  16 January 2015