FEDERAL MAGISTRATES COURT OF AUSTRALIA
SLATER & SLATER	[2010] FMCAfam 232	

FAMILY LAW – Parenting – final hearing – interim orders made – supervised time ordered – sole parental responsibility – child aligned father – father has two self-harming acts recorded – further assessments ordered.	

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT
Disability Discrimination Act 1992, s.29
Federal Magistrates Court Rules 2001, r.1602	

M and M (1988) 166 CLR 1235	

Applicant:	MR SLATER	

Respondent:	MS SLATER	

File Number:	BRC 12787 of 2007	

Judgment of:	Coates FM	

Hearing dates:	11 & 12 February 2010	

Date of Last Submission:	12 February 2010	

Delivered at:	Brisbane	

Delivered on:	18 March 2010	

REPRESENTATION
Counsel for the Applicant:	Mr Lynch	

Solicitors for the Applicant:	Best Wilson Family Lawyers	

Counsel for the Respondent:	Ms Downes	

Solicitors for the Respondent:	Williams Lawyers	

Counsel for the Independent Children’s Lawyer:	Ms Lyons	

Solicitor for the Independent Children’s Lawyer:	Forest Glen Lawyers	

ORDERS
(1)	That all previous orders are discharged and pursuant to Rule 16.02 of the Federal Magistrates Court Rules 2001, these orders take effect from 18 March 2010.
(2)	That the children [X] born [in] 2000, [Y] born [in] 2002 and [Z] born [in] 2003 (“the children”) live with the mother. 
(3)	That the mother have sole parental responsibility for making decisions regarding the long term care, welfare and development of the children. 
(4)	That in exercising her sole parental responsibility the mother shall (save in the case of an emergency with the children) advise the father by email of her intended decision and consult with him regarding that decision. The father shall provide any response by email within two days. The mother shall give genuine consideration to the father’s views in relation to the decision, but shall not be bound by his views.
(5)	That the mother shall be responsible for the daily care, welfare and development of the children when they are living with her. 
(6)	That the children spend time with the father up to two hours each week supervised at the [T] Children’s Contact Centre on times and days as can be accommodated by the Centre for the first six months that the children live with the mother. During this period the father is restrained from having contact with the children either by attending at their school or at any centre conducting extra-curricular activity or at any other time. 
(7)	That the parents will keep each other informed of their residential address and home telephone number and will advise each other of any change within two days. 
(8)	That the parents will keep each other informed of the names and address of any medical practitioner or educational institute that the children attend and will inform the other of any change within two days. 
(9)	That the mother will continue family therapy with Mr G and continue to attend in accordance with the recommendations of Mr G. The mother shall be solely responsible for the costs of her counselling. 
(10)	That the children attend counselling with Mr G and will continue to attend in accordance with the recommendations of the Counsellor. Both parents shall equally share the costs of the children’s counselling. 
(11)	That this order provides authority for Mr G and Dr S to consult with each other regarding their respective therapy with the parents in order to co-ordinate therapeutic interventions for their respective patients, if such consultation is permitted by law or within the ethical considerations  of their professional associations.
(12)	That the Independent Children’s Lawyer arrange for the attendance of the children upon Mr G to explain the Court’s orders to the children. 
(13)	That pursuant to Rule 15.09 of the Federal Magistrates Court Rules 2001 Dr M be appointed a court expert in this matter and if she in unavailable then as nominated by the Senior Family Consultant of the Federal Magistrates Court, Brisbane.
(14)	That the father attend upon Dr M or other expert on a date and time to be advised for the purposes of the preparation of a report to be made available to the Court.
(15)	That the mother attend upon Dr M or other expert on a date and time to be advised for the purposes of the preparation of a report to be made available to the Court.
(16)	That the Federal Magistrates Court of Australia be responsible for payment of the cost of preparation of the family report.
(17)	That the parties be restrained from discussing any adult issues regarding the Court proceedings and/or outcomes with or in the presence of or within hearing of the children. 
(18)	That costs be reserved. 
(19)	That this matter be adjourned to 9.30 am on 9 August 2010 in the Federal Magistrates Court of Australia at Brisbane.
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:
(20)	That for a period of at least three months from the commencement of the children living with the mother, the father engage with and attend Counselling with Dr S and shall continue counselling in accordance with the recommendations of the counsellor. The father shall be solely responsible for the costs of his counselling.
IT IS NOTED:
(21)	That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Brisbane	
BRC 12787 of 2007
MR SLATER	
Applicant

And

MS SLATER	
Respondent

REASONS FOR JUDGMENT
1.	After hearing this matter at trial, I formed the view that I could not make final parenting orders without obtaining a further expert report. 
2.	I indicated to the parties I would seek such from psychiatrist and family consultant, Dr M.
3.	Although the children had been in a shared care situation, I also made immediate orders at the end of the hearing for them to spend only supervised time with the father, as I formed the view that they were at immediate risk of abuse, neglect or family violence. 
4.	It was on that basis that I did not accept:
a)	The submissions of the father’s counsel that there ought to be a phased reduction of time the children spent with the father, to lesson any effect on them because of a change in “contact” circumstances. Immediate risk is immediate risk and phasing down the time would not remove the risk I will refer to later; and
b)	I did not accept that the risk was assessable and defined whereby a time limit could be put on supervised time, as submitted by counsel for both the independent child lawyer (“the ICL”) and the mother.
5.	I indicated that I would give my reasons later, then discharging the interim orders and making new orders, to preserve the father’s right of appeal. 
ORDERS SOUGHT
6.	This is a parenting orders application brought by the father of [X], born [in] 2000, aged 9, [Y], born [in] 2002, aged 7 and [Z], born [in] 2003, aged 6.
7.	After some amendments, the effect of the final orders the father sought would result in equal shared parental responsibility; that the children otherwise live with him and spend every second weekend with the mother; orders for celebratory days and telephone time and collection and delivery orders. 
8.	The particulars of the orders are contained in his amended outline of case e-filed on 1 February 2010.
9.	The mother had in the weeks before the trial sought an order for equal shared parental but changed that just before trial, seeking an order for sole parental responsibility. She sought that the children live with her and spend the first six months in supervised time with the father.
10.	The draft orders stated in her summary of argument document e-filed 25 January 2010 referred to shared school holiday periods, but that would depend on my final orders.
RECOMMENDED ORDERS
11.	There was no recommendation for living arrangements from the family consultant Ms T and while I put that down to inexperience with regard to the Family Law Act 1975 (“the Act”), in every other respect, including her options for the children, I found her report to be detailed, considered and credible. 
12.	Psychologist Mr G made a definite recommendation that the children live with the mother and that the father engage in therapy.
13.	The ICL made known her recommendation just before the trial, that the mother have sole parental responsibility, that the children live her and that the time with the father be supervised for two months, after which they should spend every second weekend with him as well as half of school holiday periods. 
14.	At the end of the trial the father’s position did not change but I did not accept the time limits for supervision as recommended by the mother and ICL  as being appropriate.
PREVIOUS ORDERS
15.	Previous orders have been made in this matter.
16.	On 2 July 2008, after a contested interim hearing, orders were made for the children to live with the father and spend each alternate weekend from Friday to Sunday with the mother, as well as Tuesday overnight until Wednesday during school terms, with shared arrangements during school holidays. 
17.	On 14 April 2009, orders were made by consent for the children to live on a week about basis with the parents. 
18.	Both parents agree shared care is not working and they do not seek orders for shared care. Both parents acknowledge that communication is a difficulty, a fact I find on the evidence.
BRIEF OVERVIEW
19.	The following is a brief history of the parties and the relationship.	
a)	The father was born [in] 1980 and is aged 29;
b)	The mother was born [in] 1983 and is aged 26;
c)	They commenced a relationship in 1999 when the mother was aged 16 and the father aged 19;
d)	[X] was born two years later, followed by [Y]’s birth another two years later, followed by [Z]’s birth the following year; 
e)	Each party makes allegations about the other during the relationship, the father’s allegations being to the effect that the mother was not interested in the children and would spend her time going to clubs and partying and meeting friends while he was happy to look after the children. The mother states that the father lost interest in her and that he was very controlling with regard to the children;
f)	While the cause of the separation which occurred in early (January) 2006 probably cannot be identified with precision – and there is no need to account for the differing stories - I take the view on the evidence that these parties were young, the mother being very young when the relationship started and was forced to cope with the added burden of three young children to raise; 
g)	When the children began displaying behavioural problems, the parties took different steps which has resulted in different positions being adopted as to parenting needs; 
h)	There are allegations that the paternal grandparents not only supported the father but interfered in the children’s relationship with the mother;  
i)	The current circumstances are that the mother has re-married and has another child 13-months old and the father has not re-partnered.
20.	The circumstances have not been favourable to these parties working out their problems in their children’s best interest and so the parenting provisions of the Act must be applied to ensure that the best interests of the children are the paramount considerations and are reflected in the arrangements to be made for them.
21.	How I came to make my decision is as follows. 
THE LAW
22.	Section 60CA of the Act states that in making parenting orders the best interests of the child is the paramount consideration.
23.	The Act lays down a non-exclusive list of considerations to take into account before those orders to be made in the best interest can be determined. 
24.	Section 60CC(2) contains the primary considerations. 
25.	They are considering:
a)	The benefit to the children of having a meaningful relationship with both parents; and
b)	The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 
26.	There is a note under that section which states “Making these considerations the primary ones is consistent with the objects of this part of the Act.”
27.	Those objects are stated at s.60B.
28.	The first two objects are reflective of s.60CC(2)(a) and (b).
29.	The first object is that the best interests of the children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, but there is a significant and important rider to that, because the words “to the maximum extent consistent with the best interests of the child” are inserted into that object. That must take into account different circumstances which exist for children and their parents and the different parenting capabilities and circumstances which may become apparent as evidence in any particular case is put before the Court. 
30.	The second object repeats the protection requirement about physical or psychological harm due to exposure to abuse, neglect or family violence as stated in s.60CC(2)(b).
31.	The third and fourth objects are ensuring that the children receive adequate and proper parenting to help them achieve their full potential and ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. 
32.	The section goes on to state the principals underlying the object and that is that children have a right to be know and to be cared for by both parents; they have the right to spend time on a regular basis with and communicate on a regular basis with both parents or others significant to their care, welfare and development; that parents jointly share duties and responsibilities concerning their children; that parents should agree about the future parenting of their children and that children have a right to enjoy their culture if there is a cultural issue apparent. 
33.	The object stated at s.60B is the imperative setting to the considerations of the best interests decision.  
34.	Additional considerations are stated at s.60CC(3) and set out some but not all of the relevant considerations the Court would take into account.
35.	The extent to which the parties have taken or have failed to fulfil  some important parental responsibilities is set out in s.60CC(4) and are relevant considerations.
36.	I am then to consider the presumption of equal shared parental responsibility in s.61DA and consider the living arrangements as set out in s.65DAA. 
37.	When referring to the evidence, I will refer to these various considerations. Various strands of evidence do not necessarily stand alone and may be applicable across a range of the stated considerations in the Act. 
38.	I will identify various additional considerations by reference to the section in square brackets.
THE KEY EVIDENCE
39.	While not discounting all of the considerations against the evidence, some issues particularly stand out in this matter, being: 
a)	The alignment of the oldest child [X] with the father;
b)	The father’s insistence that the children have Asperger’s disorder or were verging on having such; 
c)	The father’s claim of having Asperger’s disorder, his functioning, communication and cooperation in relation to his parenting; 
d)	The father not abiding by parenting plans and orders; 
e)	The father’s self-harming events; and
f)	The father’s view that he is the only parent capable of providing the children with proper parenting.
40.	These allegations are not stated in any order of descending importance and are not isolated from one another.
41.	Evidence of the alignment and views [s.60CC(3)(a)] of [X] in the family dispute is given by the parties and the experts.
42.	As the mother was experiencing difficulty in controlling [X]’s behaviour, she was given a referral by her GP to psychologist Mr G.
43.	Both Mr G and the family consultant Ms T gave evidence that [X] is aligned with the father. My findings on the evidence of [X] stating she believed the mother to be a bad person and would go to hell; of her assaulting the mother while pregnant and stating she hoped the (unborn) baby would die; of her being used as a spy for the father in the mother’s household; that she hates the judge in the proceedings; that she did not want to see the family consultant Ms T and that she was uncontrollable in the mother’s household, was alarming. She is a nine-year-old child and in my opinion, displaying an alignment in support of her father is destructive of her best interests in her other relationships. 
44.	Her behaviour and words can only have come from one direction, that is the father and possibly his family, after constant encouragement.
45.	Evidence was given of the type of activity or behaviour which caused [X] to align with the father’s views.
46.	Perhaps the most excessive of the father’s acts have been in relation to discipline in the mother’s household.
47.	When the children have reported to the father that they have been in trouble and disciplined in the mother’s household, he has undertaken investigations, as he put it, of the circumstances. He would explain to the children why such discipline was wrong. He did this on numerous occasions, although admitting that he could not have witnessed the events resulting in the disciplinary action and he was aware that children may tell each parent what they think that parent wants to hear. 
48.	He constantly discussed these issues with the children to give them his perspective of what was occurring and why they were not to blame and as such, it can be discerned how [X]’s views were formed and moulded.
49.	This attitude to the mother’s discipline cannot be separated from the fact that on the evidence, I find that the father used [X] to “spy” on the mother’s household, as was referred to in evidence. 
50.	These actions were intended, in my view, to undermine the mother’s ability to lay down clear guidelines of behaviour in her household. They not only influenced the child’s views, but indicate that the father falls short in his capacity to provide for the emotional needs of the children [s.60CC(3)(f)], as well as displaying a shortfall in his attitude to the responsibilities of parenthood [s.60CC(3)(i)]. On both counts, the father’s actions fall short of what is required in the best interests of the children to have the benefit of a meaningful relation with both parents [s.60CC(2)(a)]. Proper discipline in many respects is a required response by parents to protect children from a variety of otherwise harmful circumstances, simply because children have no insight into what may be harmful to them. To influence [X] and to wilfully undermine the mother’s duty to care for and control [X] is, in my view, an issue of abuse or neglect on the father’s part [s.60CC(2)(b)], from which the child must be protected.
51.	On the evidence I am satisfied that the father has taken deliberate steps to achieve [X]’s alignment, described by Mr G as an alliance-based relationship rather than a father-child relationship, which has resulted in [X] not having the benefit of a meaningful relationship with her mother [s.60CC(2)(a)]. The relationship with [X] is not beneficial, but destructive The evidence suggests that such is being turned around since [X] has engaged in counselling with Mr G.
52.	Discipline was on the father’s mind when he complained about the mother’s husband, Mr L, who he claimed used a strap on the children. The evidence I accept is that Mr L waved a belt and by folding it double made it crack, but did not hit the children. I am satisfied that after completing a parenting course, the mother and Mr L now use “time out” and “quite time” disciplinary actions, to which the children respond well.
53.	The disciplinary attitudes shown by the mother and Mr L is in contrast with that of the father. He uses a range of methods, which include making the children jump and run on the spot. If they do not do so to his satisfaction, they must run harder or jump higher. The expert reports raised concerns about this type of discipline. Both Ms T and 
Mr G disagreed with this type of discipline. Evidence was given that [Z]’s teacher also disapproved of this type of discipline. The father, while agreeing to limited “time out”, told Ms T he worries about the long term effects of such and referred to studies where children felt ostracised from their family. The father did not verify his reference to such studies and said he got some advice from church members.  
54.	Mr G, in order to understand [Z]’s troublesome behaviour which has included violence towards other students and running away and hiding, arranged a meeting between the father and [Z]’s teacher. The first observation Mr G made was that the father turned up in a T-shirt with “World’s Best Dad” emblazoned on it and he explained what a good father he was. This was part of that evidence indicating the father’s view that he was in effect the only capable parent for raising the children. As to [Z]’s behaviour, Mr G reported that the child’s teacher told the father that his discipline strategies and yelling at the child at school in front of students were unhelpful and too rigid and advised a less confrontational approach, using time out. Mr G reported the father disagreed with that approach. The father did not accept the event as disclosed by Mr G, but I accept Mr G’s evidence.
55.	The mother has a very straightforward view of such discipline, it may turn the children away from enjoyable physical activity.
56.	The paternal grandmother has not helped the situation, joining in with the father to upset the relationship between [X] and the mother. On one occasion, the grandmother rushed [X] away from school when the mother had arrived. The grandmother in her rush ignored a teacher’s request not to take the child as she would breach school policy, the child not being changed into her school uniform. While it may have been the child’s time with the father, she did this merely to deprive the mother of seeing the child and as was put to her in the witness box, did not leave [X] with the impression that the grandmother was supportive of her relationship with her mother. That type of act was also part of the grooming of the child in her alignment with the father.
57.	The grandmother has also taken a far bigger role than appears to have been justified, given the mother’s ability to look after the children reflected in the evidence and the consent orders the parents reached for week about shared care. She organised, rather than let the parents or the mother make decisions, for medical assessment of [X] because of concern about her weight. But the weight issue went beyond mere health in two aspects.
58.	Firstly, the father accuses the mother of not providing proper food for the children [s.60CC(3)(f)]. 
59.	Secondly, the father weighs the children daily and makes a big issue of their weight. 
60.	The constant focus on their weight and bringing the children’s attention to their weight is bizarre and in my view reinforces in the children’s minds that something is wrong with the mother’s ability to provide proper food. This type of action pressures [X] into taking sides and makes her part of the parental dispute and begins to involve the other children in the adult issues. It displays a lack of ability in fostering the relationship with the mother [s.60CC(3)(c)] and deprives [X] of the opportunity to benefit from a meaningful relationship [s.60CC(2)(a)], because the subject of weight may be an important issue for parents to address, but not in this manner where the children are forced to take sides. In another respect, the constant weighing and reference to weight shows the father is failing to allow the mother to participate in decisions about what may be long term issues for the children [s.60CC(4)]. His acts show that he does not try to involve the mother.
61.	While I am satisfied that initially, the very young mother may not have always had an appreciation of proper nutrition, I was satisfied that by the time of trial, she had matured, or grown personally as put by her counsel, into a mother quite capable of understanding and providing for such needs, reflected in the fact that she sought help from Mr G and a dietician. It appears that part of [X]’s weight issue, apart from the disturbance between the parents which is affecting her, was the mother oversupplying her with fruit, a situation the mother is now aware of.
62.	Another pressure on [X] has been the father stating to her that he did not know why the mother left the family, because [X] adopted that view. That is brainwashing the child. 
63.	The cumulative result of these adult-spun pressures on [X] amounts to long term abuse, a concept which takes many different forms. Subjected to constant pressure, she wants to live with the father and although the younger children reported they wanted to live with the mother, a pattern is established to involve the younger children at a later stage of their lives.
64.	That [X] wanted to live with the father, was in Ms T’s opinion which I accept, a view she was too young and immature to consider as to the ramifications for the long term, the sibling relationships and as to her best interests.
65.	The father’s psychological functioning is in issue for a number of reasons [s.60CC(3)(m)]. 
66.	In his new trial affidavit, filed 11 February 2010, he disclosed that he had been recently diagnosed with Asperger’s disorder by Dr S.
67.	There was very little information provided and he did not have Dr S give evidence on his behalf.
68.	Apart from any question of his capacity [s.60CC(3)(f)] to parent and of his responsibilities to being a parent [s.60CC(3)(i)] being assessed against such a disorder, in oral evidence he insisted that [X] has Asperger’s disorder and the two younger children were showing signs of it. As well, he said the mother had shown previous signs of depression.
69.	Before going further, the father’s counsel relied on s.29 of the Disability Discrimination Act 1992 stating that, as I was exercising power under Commonwealth law, if I considered the father suffered from a disability, being Asperger’s disorder, I had to make “reasonable adjustment” for the father’s situation.
70.	Section 29 of that act states: “It is unlawful for a person who performs any functions or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person’s disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility”.
71.	The words function, disability and reasonable adjustment have definitions under that Act, but, the submission is misconceived.
72.	I am not proposing to discriminate against the father, I am proposing to make parenting orders under the Family Law Act which may well affect him, but which do not discriminate against him within the meaning of the Disability Discrimination Act. 
73.	I do not have to make reasonable adjustment for him, I have to make orders in the best interests of the children as the paramount consideration. If I have misread the Disability Discrimination Act, then there was little evidence of the disorder or leaning difficulty within terms of that Act produced by the father and more importantly, no evidence of any assessment of his parenting ability because of Asperger’s disorder or just what reasonable adjustment could be made in terms of the best interests decision.
74.	While the father often avoided answering questions directly and went off into long rambling explanations with non-relevant references to what was being asked, there was no evidence to say that was because of Asperger’s disorder.
75.	Returning now to the parenting decision and the father’s claims about himself and the children having Asperger’s type disorders, there was no evidence available for testing regarding them having such disorders. Mr G was not in a position to contradict such claims, nor was he asked to, but he expressed concern that the whole of the family circumstances facing the children may not been explored by the father’s various health professionals, because they were not in a position to have the mother’s account of the disturbances in this family. 
76.	The father did not relinquish his position that either himself or the children suffered from Asperger’s disorder or some disorder closely associated with it. He seemed to use his own diagnosis as an excuse for his behaviour and while that may or may not be true, it is behaviour which so affects the children that [X] is aligning herself with the father, [Y] is disrupted and [Z] is showing such disturbing signs of aggression he was expelled from a school.
77.	There was no evidence that depression the mother may have suffered, as the father alleged, affected her parenting at the time of trial.
78.	Other psychological issues the father is facing arise from at least two allegations of self-harm. 
79.	The father played down one event described by the mother as an attempted suicide and denies another event described by the mother as wrist slashing. 
80.	The first event occurred after an argument in the year 2000. The mother said she witnessed the father attempting to hang himself. She said he had placed a noose around his neck and kicked a chair he was standing on from beneath him. The noose was secured to the house ventilation system. She said she rushed to his assistance and he allegedly said “If you ever leave me, I will kill myself”. The father told psychiatrist Dr C that the act was a ruse and the rope did not have enough strength to harm him.
81.	Whether the words were spoken or not and whether the act would have been capable of being successful, the issue is that the act occurred and could have ended in tragedy. If the act was a ruse, then it was childish and while the then age of the father can be taken into account, such is not an excuse. 
82.	There is another allegation that he slashed his wrists in 2005 or 2006.
83.	This was after another disagreement. The mother said the wrist slashing was not severe and the father was able to treat himself with pressure bandages.
84.	The father gave a different version in his evidence, that he accidently cut himself on a fence while playing with the children, yet Dr C, not called for cross-examination, stated the father admitted to hurting his wrists in the past.
85.	Dr C said the father seemed to have engaged in two impulsive episodes of self harm, but these were not indicative of any pervasive psychiatric personality disorder. 
86.	Another view of the father was seen from his psychiatrist, Dr L, who wrote to the family consultant. Her letter and report are dated 25 August 2008. Dr L records that in January 2006 after separation, the husband was put onto a depression medication. She referred to the paternal grandfather as having concerns about the father’s suicidal plans of hanging himself and that he had made a noose. Dr L also stated that the father had depression at the age of 15. She recorded the father being depressed in relation to the marital separation but that he, had no suicidal ideation at the time of interviews. I assume the father accepts this evidence because he attached this letter to his affidavit filed 8 April 2009.
87.	The father did not accept subpoenaed material from Dr B was correctly recorded, where she referred to his suicidal thoughts by hanging, around January-February 2006. The subpoenaed material records that Dr B treated the father for depression and that he was going to hand the children back to the mother and contemplated hanging himself.  She also referred to a previous attempt at hanging where the wife “caught him” and to slashing his wrists. She also recorded that he had been depressed since high school.  
88.	And another view of the father was given by Mr G, who reported the father stated before [X] was born that he set up a noose to hang himself, but he would not elaborate.
89.	Section 69ZT allows me to accept material outside of the rules of evidence if the circumstances are exceptional and it is important, relates to the proceedings and is probative. 
90.	The functioning of a parent is such an important part of deciding what parenting orders should be made in the best interests of the children as the paramount consideration, I am going to accept the documentary evidence from Dr L and Dr B as representing statements made by the father, despite his denial of some of those statements. 
91.	He has told different health professional different things at different times, but there are so many records of his statements about self-harm that his denials at trial are hollow, made only to achieve the parenting orders he set out to achieve. In oral evidence he even spoke of having a noose under a canoe outside when playing with the children, and a noose is not a normal thing to have around a back yard.
92.	On that evidence as a whole, but particularly on Dr C’s evidence as well as the records of Dr L and Dr B, I find at least two self-harming events more likely than not occurred. Further, he had suicidal thoughts around January-February 2006. If the father does not suffer from a disorder, then he callously and deliberately acted in a manner to frighten the mother or harm himself. No other finding is available.
93.	The issue of physical harm went further. Mr G reported that the father made comments to the effect that [X] would may suicide on being disciplined, when placed in the toilet of the mother’s house. She was sent there as a “time-out” discipline, the toilet being a place where there were no objects of diversion. The father allegedly stated that he might have planted the idea of suicide in her head and he told Mr G that the toilet was the place where most suicides occurred. The father denied stating this to Mr G. I accept Mr G’s version of events. 
94.	As the evidence went on, I did not have a very clear picture of the father being a stable person and I became concerned for the children if the decision should be made for them to live with the mother.
95.	His non-acceptance of evidence not favourable to him followed a general pattern where he claimed many of the reports in this matter were incorrect, either misquoting him or getting things wrong.
96.	I am to consider the magnitude of the risk of something occurring, see M and M (1988) 166 CLR 1235, but sometimes evidence can suggest risks can be of undefined character.
97.	A line of cases directs the Court to assess the magnitude of the risk of an event happing, but is there an unacceptable risk of either direct or psychological harm to the children? Of psychological harm, the answer is yes, [X]’s alignment being the example of what has occurred. As to physical risk, the answer lies in the history of at least two attempts to self-harm, about six years apart, the last being in about 2006. There was also the father’s talk about [X] suiciding. 
98.	The two self-harming events have been separated by time but in my view there is no indication or evidence that such could not occur again.
99.	The father said he was prepared for a decision where the children would not live with him, but I was not satisfied that I could rely on his evidence as reflecting that there would not be another attempt at self-harm or some other event. I could not be more specific but his statements about [X] possibly suiciding are of the greatest concern. The father rambled when giving evidence on many occasions and avoided direct answers on other occasions. I do not know with confidence what to expect from him and despite Dr C’s opinion, he appeared to be very unstable. 
100.	Apart from the self-harming acts and the talk about [X] suiciding, there was also the evidence of the father’s intent to align [X] with him and so I conclude that the father is an unacceptable risk to the children, if not physically, then psychologically. While I cannot determine the potential for accomplishment of the self-harming acts, if he does not suffer a disorder, then I must conclude that the acts were either real attempts or designed to manipulate the mother. I do not conclude this on these acts alone, but the controlling nature of the father can be seen in the whole of the evidence which emerged.
101.	I have also taken into account the father stating he was depressed because of an allegation by the mother that he had raped the son. The mother gave evidence she was concerned because the child had experienced a sore bottom but she accepted medical opinion, at the time it seems, that nothing untoward had occurred between the child and the father and she did not press that allegation. She said she was concerned at the time.
102.	The mother was properly questioned as to why she consented orders with the father on a shared care basis if she really feared for the children, in the light of the father’s two self-harming attempts.
103.	Given her answer to these questions, I do not accept that she consented because she did not care or did not have concerns.
104.	She stated that she was sick and tired of seeing the children pulled between each parent, where different attitudes and styles of parenting were apparent. She said they needed stability. She said while the father was in control, she did not fear for the children but would otherwise. She said she has had to witness and the children have had to witness his behaviour when she has wanted to leave, ranging from depression and crying, to self-harming episodes, to threats. She said she has surrendered to every demand of the father, from time, to sport and activities to schooling. She gave a very clear, concise and what I accept to be a genuine answer to this difficult, but necessary question. She has insight into the situation and the needs of the children.
105.	She also said it was time to have the decision made and she sought supervised time for the children and the father for six months because she did not know what he would do. It would give him time to get assistance in dealing with the new regime and his own problems if her orders were granted.
106.	Another part of the relationship between the children and the parents [s.60CC(3)(b)] is, which I accept, that the father looked after children at an early age. I was asked to consider that as an aspect of him being primary carer and the children’s attachment, but I consider the evidence as a whole displays a great attachment between the children and the both parents. I accept that at that time the mother did go out, either to work or to socialise, but these issues are not enough to outweigh the significant issues of concern about the father’s behaviour and how to protect the children from abuse, neglect or family violence [s.60CC(2)(b)].
107.	The father does not support or finance many of the extra curricular activities organised by the mother, preferring the children to be mostly with him. He did not give evidence of their need to engage in outside activities and social functions. This evidence must be viewed in terms of his capacity to assist or provide for the needs of his children [s.60CC(3)(f)].
108.	While both parents appear to be able to provide for the daily material needs of the children, the father may soon be having financial difficulties in relation to school fees.
109.	At the father’s insistence, the two girls attend at The [G] School in [T], acknowledged in the proceedings as the city’s most expensive school.
110.	The mother cannot afford the school fees, which will amount, according to the father, to $8,000.00 this year. She and her husband support their 13-month old child and at present, on a week about basis, the three children the subject of this application. Mr L earns between $800.00 and $900.00 a week as a [occupation omitted] and travels about the [suburb omitted] and south to obtain employment. The mother receives those benefits she is entitled to receive, but their circumstances are those of perhaps an average family, perhaps a little less. 
111.	The father is unemployed, although stating in cross-examination he was a [occupation omitted], that is, he is available for casual employment. To the date of trial, he had not been offered any supply [omitted] work as a newly qualified [omitted].
112.	He is also qualified as a [omitted], but does not work in that field.
113.	He owes The [G] School $10,000.00 for last year’s school fees. 
114.	He could not say how he will meet the fees for this year and the debt for last year if his employment prospects do not improve.
115.	He said he has concerns about sending the children to a state school, but these were not very well defined, except perhaps for some emphasis on religious instruction.
116.	His attitude to this important area of parental responsibility [s.60CC(3)(i)] cannot be described as being thoughtful. He stubbornly maintains that The [G] School is the best school for the girls, but closes his eyes to the fact that they must be there on borrowed time if the fees are not paid. He said the school has been very understanding, but he produced no evidence of that, although he did state he had not received a notice of demand for school fees. There is a lack of co-operative discussion and decision-making about schooling, to be decided against the financial background of the parties. The father is asking the Court to allow the uncertain schooling situation continue and the mother is asking for certainty.  Early schooling is such an important best interests issue for children there has to be certainty of decision-making.
117.	Apart from the girls schooling very possibly being interrupted because of the lack of apparent finances to keep them at The [G] School, [Z] was expelled from school for his behaviour and orders have to be made to give him every opportunity for family and school stability [s.60CC(3)(g)].
118.	The issue of family violence arose [s.60CC(3)(j) and (k)] in terms of a domestic violence order. The farther applied for such an order in 2007, claiming that Mr L had assaulted [X], that he had firearms for hunting pigs and that the maternal grandfather had assaulted him. An ex-parte order was made against the mother for two years. Mr L denied ever assaulting or whipping [X] or the children at this trial, however, when cross-examination was directed to the father, he admitted slapping the mother after alleging she punched him. He said he could not get away and what I think he was describing was a reaction to being punched. The issue is uncomplicated, there was no evidence given which would excuse him of engaging in even defensive violence. He should have just fled, if his allegation that he was being punched is true. There is no excuse for any party to engage in domestic violence and no excuse whatsoever for a male to hit a female.
119.	Telephone time has developed as an issue for the children. The father admitted to spending up to one and a half hours on the telephone with the children when they are in the mother’s household. That is far too much time. At evening time, this excites them at the wrong time of the day. It is part of the father’s conditioning of [X] to align herself with him and part of his control over the situation by ensuring that all of those things which have to be done for small children in the early evening cannot be done, such as feeding, bathing and getting them ready for bed.
120.	The children have a good relationship with the grandparents on both sides, but I am to look at the nature of that relationship [s.60CC(3)(b)(ii)].
121.	I have no doubt that the paternal grandparents have been interfering to such an extent that they have lost sight of the children’s need to have the benefit of the relationship with both parents, especially the mother.
122.	The background to the breakdown can be understood from two perspectives. Firstly, they simply sided with the father, their son. Secondly, they became upset about the rape allegation, although the mother let that go, long ago.
123.	That the grandmother became involved in responsibilities which should have been exercised by the parents together under the existing orders has demonstrated that she gives the mother no credit at all for parental responsibility about serious decisions and gives the father backing to continue making decisions without gaining the mother’s consent or confidence. The situation also indicates to me that the father is having difficulty making decisions without having his mother present and I have to consider whether he actually has the capacity to provide for the needs of the children, that is their best interests, without assistance [s.60CC(3)(f)]. It is also a consideration of the willingness and ability of the father in facilitating and encouraging a relationship between the children and the mother [s.60CC(3)(d)].
124.	My view is that he is giving every indication that he cannot get on without the paternal grandmother. On many occasions he enlisted the grandmother to assist. She has become so involved that she has:
a)	Supplied the mother with lists of things to do for the children;
b)	Supplied a school with lists of books for [Z];
c)	Sought an interview with the family consultant to state her views; and 
d)	Sought to sit in on [Z]’s class because of his behaviour.
125.	This is a very disturbing situation. It undermines the mother.
126.	The psychiatrist, Dr C, found that the father had rigid views of life and that was apparent in the father’s answers to questions, like saying the mother had views of the world different from his. Similar words were used by the grandfather in exhibit 3, when describing the mother, so again, it seems the father is greatly influenced by his parents.
127.	The grandmother said she can put aside the differences in future. I would hope she can for the benefit, that is, the best interests, of her grandchildren. 
128.	It seems the mother has a more stable attitude and she said that when proceedings are over she expected the grandparent’s relationship with her to settle down.
129.	I think that what has occurred is that the mother and father, when young, had three children. The mother was only 20 and the father 23, and in stepping up to assist them, the grandparents went too far, taking all responsibility from the parents. When the relationship broke down, it was too late to resile from their positions, resulting in descriptions of the mother by the grandfather as stated in Exhibit 3.
130.	Exhibit three, email correspondence dated 23 November 2009 from the grandfather to the father’s solicitor states, among other things: “…I think it raises another problem with the shared parenting concept: [Ms Slater’s] views of life, education, integrity, personal responsibility are so totally different from [Mr Slater’s] that the system simply can’t work. Whether it’s politically correct or not, and whether its an acceptable point of view in a court of law, I must say that [Ms Slater’s] world view is sub-standard, inferior, toxic and not conducive to raising functioning members of society”. 
131.	That very harsh statement of the mother sums up the father’s attitude as well, because he made several statements that he and the mother’s views were worlds apart. 
132.	Whether the grandparents like the law or not is irrelevant because the law exists and because the shared care decision was taken by the parents, but what is relevant is that they have no insight into assisting their grandchildren appreciate both parents. Further, the grandparents have a mistaken view, shared care is not mandatory.
133.	In my view, and especially because evidence from Mr G and others was that the grandmother had greatly involved herself in decisions for the children  - she admitted comforting the father at times over the parental dispute – she and the paternal grandfather have made wrong decisions which have encouraged this matter to get out of hand. I note the grandmother said she did not accept all of this letter’s statements, but that back down came only during cross-examination with no step taken beforehand to tone the views down.
134.	Further, if Dr L’s note correctly states that the grandfather was concerned about the father’s suicide talk, then the grandfather, who complains about the mother, seems to have pushed a safety issue under the carpet instead of assessing what may be required to protect the children.
135.	Despite this, the mother recognised that the children love the paternal grandparents and she did not want to deny time with them, despite her damaged relationship. 
136.	This role of the grandparents has implications concerning the father’s willingness to foster a close and continuing relationship [s.60CC(3)(c)] between the children with the mother and is an issue related to the exercise of parental responsibility [s.61B]. Both parties were to exercise joint parental responsibility under existing orders, that is, make those decisions for the welfare and benefit of the children together. That has not been occurring and the father has been controlling the situation or not assisting the mother when [X]’s attitudes and [Z]’s behaviour became apparent. The mother acted to get assistance and sought the father’s involvement.
137.	The issue of control became live in my mind on hearing the parties. The manner in which the father and paternal grandmother tried to second guess the questioning indicated avoidance of issues. The manner in which the father rambled through answers and avoided answering direct questions indicated he was guarding his answers and attempting to give his version of events without answering specific questions. He was attempting to control his answers and I accept he exerted control over the situation regarding the children.
138.	The Act states that there is a presumption that parents have equal shared parental responsibility [s.61DA], which does not apply if there has been abuse of a child or family violence. I am satisfied that the father’s admission that he punched the mother was an act of family violence, as was his screaming that he would kill her and the children and are important facts.
139.	But the issue of equal shared parental responsibility is of prime importance to the children and the parents and it is not something which should easily be removed.
140.	The presumption can be rebutted by evidence that satisfies me that it is not in the children’s best interests to order equal shared parental responsibility.
141.	In this case, the evidence pertaining to:
a)	the alignment of [X] and the self-harming acts;
b)	the role of the paternal grandparents;
c)	the control exerted by the father, and 
d)	his admissions that he did not abide by orders when [X] did not want to go the mother’s house,
satisfy me that the presumption should be rebutted. I do not then have to determine the living arrangements [s.65DAA].
142.	Both the ICL and the mother’s counsel sought supervision orders, the ICL for three months and the mother for six months.
143.	Both appear to have placed a time limit so that the children would settle into a new regime and allow the father to seek assistance for some of the issues identified in these reasons.  
144.	I could not determine what evidence would lead me to conclude why any specific period would be such whereby the concerns about the father’s behaviour would be resolved. 
145.	Mr G stated a very simple truth, the father could have supervised access abandoned when he could show he could act properly. He said “…I believe there is a lack of insight and a lack of displayed capacity, I suppose it would be when the person can display insight and capacity you know, so that would have to do with [Mr Slater’s] capacity to engage in a genuine therapeutical alliance with some therapist.
146.	Mr G said the father appeared to require psychological therapy to help develop an independent sense of self, so that he could feel good about himself rather than having [X] affirm and align with him.
147.	The situation has developed where he saw the mother as being competitive and so he vilified the mother and because he was becoming reliant on the children which to a degree was or appeared to be an emotional need that the children met for him, an emotional dependency is itself a consideration [s.60CC(3)(c) and s.60CC(3)(m)].
148.	Mr G said his sessions with the children had a different dynamic when the father was present. The father wanted to talk about strategies rather than therapy for the children and he finally had to say that he could not assist the father, who worked against assistance for the children. Mr G concluded that there was chaos in the family because of the father’s attitudes.
149.	I could not then say that after two months or six months the father would act properly within terms of the Act for the children’s best interests. 
150.	I intend making a supervision order, not imposed as a punishment, but in the children’s best interest to remove the father’s destructive influence and to protect the children from any harm.
151.	Mr G did recommend that the father work with Dr S and perhaps there could then be a combined program developed for the family. I will make a consent order to that effect.
152.	The father has displayed distinctly odd behaviour, not that of the reasonable person. In a very real sense, the best interests decision and the considerations, supported by the objects appear to be based on what a reasonable person, a reasonable parent would do in the best interests of their child or children and many of the father’s acts have not been reasonable or acceptable within normal community standards. That is why I require more expert evidence, particularly from a family consultant and psychiatrist such as Dr M. 
153.	I identified those factors in favour of the father’s case. They would have to include the very evident truth, that the children love their father and have fun with him, but at their age, they just do not have insight into what has been occurring or why I find it necessary to order supervised time. A report the father relied on by counsellor Mr W reflects some of the father’s concerns, however, it is counselling done without all of the family context, I think, being made available to 
Mr W, and so it was only of limited use in these proceedings.
154.	The content of supervision was also canvassed and it would be far better that the children spend time with the father in a relaxed environment. I am very aware that the children’s view is that they have a good relationship with the father and that a change in the living arrangements and a move to supervised time will be out of the ordinary for them and will probably have an adverse effect on them [s.60CC(3)(d)]. It is a choice between that situation and the risks which are apparent on the evidence. If the orders do not break the nexus now between [X] and the father, [X] will be denied the opportunity of having the benefit of a meaningful relationship with her mother, a situation which will have been caused by the father. I accept that there has been improvement in that relationship, but it is a tenuous relationship. As the younger children get older, they may also be influenced by the father’s unhealthy views of his parenting ability and of the mother. The paternal grandparents are unsuitable supervisors because of their attitudes to the situation and no other names were suggested. The best that can said for the supervision centre is that events can be recorded. I am satisfied that the evidence shows the father has no insight into his behaviours and, as was stated in evidence, blames other factors, filters the information and vilifies views not aligned to his.
155.	There is no practical difficulty or expense imposed while the children spend time and communicate with the father in a supervision centre, although their right to maintain personal relations with him will be affected as required by the need to protect them [s.60CC(3)(e)].
156.	It was on this basis that I determined to make interim orders and not finalise the case, the care, welfare and development of the children being too important. I indicated that the interim orders would probably reflect the final orders, except perhaps for the children’s time with the father depending on new evidence particularly of his functioning. This is also the path least likely to bring the matter back to Court [s.60CC(3)(l)] and takes into account the rider stated in s.60B that best interests are met by ensuring the meaningful relationship with both parents “to the maximum extent consistent with the best interests of the child”. It is not in their best interests to be so influenced by the father and subjected to the chaos within the family whereby the mother’s role is diminished or nullified.
157.	In many respects, the father has failed to fulfil his parental responsibilities as to decision-making for counselling, schooling and encouragement of the children in being able to communicate with the mother and again I use [X] as the example of this failure [s.60CC(4)(a) and (b)]. 
158.	I will discharge the orders and change them where necessary on the evidence. Under Rule 16.02, the new orders will take effect from the day of publication of the reasons. That also preserve’s the father’s appeal rights.
159.	The father alleged bias against the experts. I did not find them to be biased. 
160.	I have made an order for both parents to share the cost of counselling for the children. In the circumstances, such should be shared.
161.	Finally, I am ordering a report from Dr M, but that does not mean that her opinion is not open to challenge and she will be a witness in the same manner as other witnesses. If Dr M is not available, then I will leave the choice of expert to be nominated by the Senior Family Consultant of the Federal Magistrates Court, Brisbane.
I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Coates FM

Date:  18 March 2010