Millard & Millard [2020] FamCA 107 (25 February 2020)

[2020] FamCA 107

FAMILY LAW - PARENTING - With whom the children live - Where the children were enmeshed with the father - Where the father had perpetrated family violence against the mother and eldest child - Where the children were at risk of physical and psychological harm in the care of the father - Where this risk was not mitigated by supervised time - Where any communication with the father posed risks of psychological harm - Order for no time - Order for no communication - Where the father is viewed as a serious risk to both the mother and children - Injunctive orders made for the personal protection of the mother and children.

FAMILY LAW - PRACTICE AND PROCEDURE - Where the father made no appearance on the 11th day of hearing - Where the father emailed the Court indicating his reasons - Where counsel and solicitors for the father were given leave to withdraw - Where the Court considered the email an application for adjournment - Application refused - Matter proceeded in the absence of the father.

Australian Passports Act 2005 (Cth)

Crimes (Domestic and Personal Violence Act 2007 (NSW)

Family Law Act 1975 (Cth) ss 60CC, 65Y(2) 68B, 68C, 121

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

IT IS ORDERED

(1) That Ms Millard ("the Mother") have sole parental responsibility for the children of the marriage, B born ... 2005 ; C born ... 2007 and D born ... 2012 ("the children").

(2) That for the avoidance of doubt, the Mother's parental responsibility is in respect to all major long term decisions relating to the children, including but not limited to issues about:

(a) The children's education (both current and future);

(b) The children's religious and cultural upbringing;

(3) That the children shall live with the Mother.

(4) That the children shall spend no time with the Father.

(5) That the Mother shall be at liberty to leave the Sydney metropolitan area with the children.

(6) That the Mother shall be at liberty to organise counselling for the children at such counselling services as is determined by the Mother from time to time.

(7) That pursuant to section 68B(1)(b), (c), and (d) of the Family Law Act 1975 (Cth) the Father be and is hereby restrained from:

(a) Assaulting, harassing or molesting the Mother in any way;

(b) Forwarding, sending, initiating or sustaining any communication in any form with the Mother;

(c) Approaching or being within 50 metres of the Mother;

(d) Entering or being within 50 metres of the Mother's home or any place where the Mother works.

(8) That pursuant to section 68C of the Family Law Act 1975 (Cth), Order 7 is an injunction for the personal protection of the Mother.

(9) That pursuant to section 68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the person (Mr Millard) against whom the injunction is directed has breached the injunction by:

the police officer may arrest Mr Millard without warrant.

(10) That the operation of Order 7 is suspended during any period in which an Apprehended Domestic Violence Order or a Provisional Apprehended Domestic Violence Order made pursuant to the Crimes (Domestic and Personal Violence Act 2007 (NSW) is in force for the protection of the Mother from Mr Millard.

(11) That the Father be and is hereby restrained from the following:

• (a) Assaulting, harassing or molesting the children or any of them in any way;
• (b) Forwarding, sending, initiating or sustaining any communication in any form with the children or any of them;
• (c) Causing any third parties, including but not limited to Ms EE, Mr EE and NN from forwarding, sending, initiating or sustaining any communication in any form with the children or any of them on behalf of the Father;
• (d) Entering or being within 50 metres of the children's home;
• (e) Entering or remaining or being within 50 metres of the children's schools, presently being Suburb F Public School and/or G School;
• (f) Being within 50 metres of the children or any of them;
• (g) Removing the children from the Commonwealth of Australia;
• (h) Denigrating the Mother:
  • (i) To or in the presence of the children; or
  • (ii) On social media including but not limited to Social media service 2;

(i) Causing any third party from accessing the log in details of all social media accounts operated by him.

(12) That pursuant to section 68C of the Family Law Act 1975 (Cth), Order 11 is an injunction for the personal protection of the children.

(13) That pursuant to section 68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the person (Mr Millard) against whom the injunction is directed has breached the injunction by:

• (a) causing, or threatening to cause, bodily harm to the protected person; or
• (b) harassing, molesting or stalking that person;

the police officer may arrest Mr Millard without warrant.

(14) That the Father shall immediately upon the making of these orders:

• (a) Cause to be removed from the internet including Social media service 2 or other social media accounts that he conducts, has conducted or will conduct any photo or image of the children, or any of them;

(15) That the father is restrained from posting or publishing on any social media platform, any information which identifies the Mother or the children.

(16) That he Mother shall authorise and direct the Principal and staff of the children's schools to supply the Father with copies of all school reports and school photograph order forms.

(17) That the Mother will cause the Father to be notified as soon as is reasonably practicable of any serious injury or serious illness suffered by the children.

(18) That the Family Law Watchlist Order, being Order 8 of the Orders made 14 March 2018 be discharged.

(19) That the Australian Federal Police are hereby requested to remove the names of the children, B born ... 2005, C born ... 2007 and D born ... 2012 from the Family Law Watchlist.

(20) That within 7 days of the date of these Orders the Father is to cause each of the children's passports to be delivered to the offices of Broun Abrahams Burreket and the Mother will thereafter have possession of the children's passports.

(21) That pursuant to section 11 of the Australian Passports Act 2005 (Cth) the Mother be permitted to do all acts and things and sign all documents necessary to apply for and maintain current Australian passports with respect to the children B born ... 2005, C born ... 2007 and D born ... 2012.

(22) That pursuant to section 65Y(2) of the Family Law Act 1975 (Cth) the Mother be permitted to take the children out of the Commonwealth of Australia.

counsellor, psychologist or psychiatrist the children (or any of them) attend upon;

(c) the children's school(s);

(d) the New South Wales Police; and

(e) the Department of Communities and Justice.

(24) That the Father provide a copy of Order 11(c) of these Orders to Mr EE and Ms EE.

(25) That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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

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

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

1. Ms Millard ("the mother") and Mr Millard ("the father") commenced co-habitation in 1996 or 1998 and married in May 2000. There is a dispute about the date upon which cohabitation commenced and when the marriage finally ended but that dispute need not be resolved here.
2. They are the parents of three children: B born ... 2005; C born ... 2007 and D born ... 2012. At the present time, pursuant to orders made 26 April 2018, the children live with their mother and spend no time with their father and he is restrained from contacting them. An order has been made giving the mother sole parental responsibility for the children.
3. The mother seeks orders which would continue those arrangements on a final basis.
4. The father seeks orders for equal shared parental responsibility and for the children to live with him and the mother on a week about basis.
5. As will be apparent from the history of the matter, equal shared time was trialled commencing in 2017 and eventually resulted in all three children refusing to see or spend time with their mother.
6. When the Court ordered that the children live with their mother and spend only supervised time with their father in March 2018, C ran away from her mother's home and, after police intervention, was placed in L Hospital for 13 days, while authorities determined what to do with the child.
7. Eventually, in April 2018, the Court ordered that the children live with the mother and spend no time with the father.
8. Whether it is possible for the children to live with one parent and have a relationship with the other, where they spend time with that parent, is the crucial issue to be determined.
9. If the children cannot spend time with each of their parents, and can live with only one parent and not spend time with the other, with which parent should they live?
10. It is instructive to set out, with reference to the affidavits and the chronology prepared by the Independent Children's Lawyer ("ICL"), what the parties allege to be the history of the relationship. It is not intended to list each and every allegation made by each parent against the other, or against third parties, but rather to give an overview and a context in which to place the consideration of relevant incidents and to gain an understanding of the reason these children moved from having a close, loving relationship with their mother in the beginning of 2017 to completely rejecting her by the end of that year. Specific consideration will be given to those incidents where there is evidence, of either documents or witnesses, other than solely the evidence of the mother and the father.

1. The mother alleges that in 2007, the father assaulted her, holding her against the wall with his hands around her throat.
2. Also in 2007, the mother alleges that the father smacked B so hard he left hand prints on her legs. The father denies those allegations.
3. The paternal grandmother alleged that the father had assaulted her in 2007. The father denies those allegations.
4. The mother alleged that, in 2012, when B was having a "meltdown", the father threw her in the swimming pool. The father denies the incident occurred as the mother alleged.
5. In early 2013, the father was charged with assaulting his mother's then husband, Mr OO. The charge against the father was dismissed but he pleaded guilty to a charge of damaging Mr OO's car and was placed on a good behaviour bond. The father denies that he assaulted Mr OO.
6. The mother alleges that, in late 2012 or early 2013, when D was a toddler, the father pushed the mother in the presence of family members. The father denies that he assaulted the mother on that occasion.
7. In 2013, the father proposed that the family move to Asia which would facilitate his business activities in Asia. While the mother and father travelled to explore schooling options for the children, the mother eventually declined to move.
8. On 7 October 2013, the father moved to Asia and the mother remained with the children in the family home in Sydney. It is not in dispute that, when he moved to Asia, he did so believing that the mother was a capable parent and with complete confidence in her care for the children. Neither is it in dispute that the children then had a warm and loving relationship with their mother. The father returned to Sydney every six weeks or so. When he returned to Sydney during this time, he would stay in the matrimonial home, although where he slept remains in dispute. He lived in Asia for almost two years, during which period the mother was the children's primary carer.
9. The mother alleges that on ... August 2014, in Sydney, the father assaulted her, kicking her out of bed and, with both hands, squeezing her neck. The father denies that allegation. It is considered at length later in these reasons.
10. The mother alleges that the father pushed B forcefully in her chest in 2014. The father denies that allegation.

2. There have been no recent incidents & I feel safe if we are together.

1. In August 2015 the father returned from Asia and lived separately from the mother and the children. In April or July 2016, the father moved into the house where the mother and the children lived. There is a dispute about whether cohabitation resumed but it is not necessary to resolve that dispute.
2. In later July or early August 2016, there was an incident when the mother alleges that the father punished B by soaking her with the hose. The father denies that allegation and says that he took B outside and sprayed her with a little bit of water to show her it was not nice to tip water on C's head. In cross- examination, the father specifically denied that it was a punishment. This incident is considered at length in the reasons.
3. In December 2016, the parents physically separated, the father remaining in the former matrimonial home and the mother moving to rented accommodation.
4. On 20 December 2016 there was an exchange of messages between B and the mother. The mother asked B to remind C of something she needed to take to school. The response from B's phone was "You should really be talking to dad about all these things and not using me in the middle as a kid. Your [sic] the parent with dad, not me." Unlike B's other messages around this time, there was no accompanying message of love. Later B sent a message to the mother saying "Mum I am so so sorry dad wrote that while I was in bed XO". The father denied writing the message but, having regard to B's message and the markedly different tenor of the subject message, it is likely that he wrote it.
5. The parents reached an agreement about the way the children's time should be divided between them, from the beginning of Term 1 of 2017, in the following terms:
   • With the mother from after school Monday until before school Wednesday each week;
   • With the father from after school Wednesday until before school Friday each week;
   • With the father from after school Friday to before school Monday in week 1 of 2 and alternating thereafter;
   • With the mother from after school Friday to before school Monday in week 2 of 2 and alternating thereafter.

They agreed that the children should spend the school holidays in 2017 on a week about basis.

1. On 31 December 2016, there was an incident at the home of the father's uncle and aunt. The circumstances are disputed and the evidence is discussed later in these reasons. The father denies that the incident occurred as described by the father's uncle and aunt. That incident marked the end of the hitherto cordial relationship between the father and his uncle and aunt.
2. The father took the children overseas for a holiday during the January school holidays. Emails between the parents during this trip show an unremarkable correspondence with the mother asking questions about the holiday and the father detailing their day to day activities.
3. The relationship between the parents became increasingly acrimonious.
4. In January and early February 2017 C was sending loving text messages to the mother.
5. In February 2017, the mother alleges that the father spat on her.
6. Also in February 2017, the mother asserts that the children, particularly B, were expressing fear of the father and reluctance to go with him.
7. On 16 February 2017 B messaged the mother on Social media service 1 saying "Mum please come and pick us up love [B]...Its [sic] urgent [crying face emoji]", and later "No mum please come every one is [crying]. The mother telephoned. B texted "dad didn't let us [answer]". On 17 February 2017 C messaged the mother "Please text not call me mum please mum xoxo have a good weekend" and then sent six texts each saying "Mum" then "Please answer please please mumxoxo".
8. On 24 February 2017 a notification was made to the Department of Family and Community Services ("DFCS"), presumably by a teacher, stating:

[B] and [C] are allegedly being singled out by their father and made to feel guilty. [B] expressed concern about going home to the father's home today. The caller is concerned that the children are at risk of psychological harm if exposed to the father's behaviour.

...

[B] said that she is very afraid. She is scared to leave her 2 sisters alone as she won't be there to protect them when she goes on camp next week. She is scared to go home today.

The caller reported that B told of being hit in her father's care, and an incident where C was force fed food by her father. The father in cross-examination said that report was not true and that it could be a fabrication by the school.

1. On 27 February, the mother reported to Suburb Z Police that B had expressed a fear of going to the father's home. At 4.00 pm, the police conducted a welfare check on the children and spoke to B. The maternal grandmother was present during their interview, but provided no information. The notes from Police produced on subpoena note:

[B] told police that when [the father] gets angry, he yells at her and her sisters, which makes her not want to stay there.

[B] also indicated [the father] smacks the children, however [B's] description of this "smacking" constituted lawful chastisement.

1. C's class teacher in 2017 noted that on 28 February the class discussed circles of trust and C identified mum and dad as being people within her inner circle of trust.
2. On 1 March 2017 C's teacher noted:

[C] showed signs of distress - hands shaking and crying. ... C was worried about staying at her dad's while her older sister was at camp.

1. On the same day, C texted the mother sending an image of a sad face and the words "Mum mum mum Mum please Mum Mum Mum". Later C texted the mother asking to be picked up and was concerned as she had been told the mother was ill in the head. The mother sent a text reassuring C. Around 7.25 pm C again texted asking, repeatedly, to be picked up and the mother replied "Go to sleep soon you'll feel better". At 8.59 pm C texted "Mum, Dad made me tell the truth about the police and it was so sad. I need you please answer me..." The mother replied "It's ok" and C responded "No it is not help me". The exchange continued with C distressed and the mother reassuring her.
2. At 11.39 pm that evening, the father sent the mother an email berating her. The email was three A4 pages and said, inter alia:

Being led by this dynamic in your unhealthy agenda and motives, to then have the police talk to [B], after all have you been doing and saying above to her. Making her completely upset and in line with that you say (as she has made clear above) to then have [the maternal grandmother] and you embrace and hug her and tell her what a good girl she is. Serious manipulation of a child and very unhealthy.

1. B's teacher in 2017 noted that in week 10 of first term B had been upset and waited after school to talk to the teacher. B apologised for her behaviour. When questioned why she was apologising, B:

explained her dad had told her to. He had told her the comments I had made to him during parents/teacher meetings.

She was emotional + said her dad would make her repeat Yr 6 + not let her go to high school if she didn't apologise for not being focussed.

(As per the original)

1. In June 2017, the mother moved into rental accommodation in E Street, which was directly opposite the school which C and D attended. Also in June 2017, the mother arranged for B and C to see Ms PP, a psychologist.
2. The class teacher noted at the end of term two that C reported being happy with transitions from mum to dad.
3. In week five of term two of 2017 the teacher noted "Spoke with [B] about being late for sports training. She said her dad wouldn't bring her on time because it was too early for her sister's and not fair". The parents of B's friends offered to take B to training, but the father declined as he viewed it as his responsibility.
4. In week 10 of term two the teacher noted that she spoke to B and:

[B] said her dad was yelling at her on the way to school about being ungrateful...

Mentioned she was also worried about her dad finding out about her talking to a psychologist - worried her sisters might say something.

1. In a document entitled "Child Assessment/Interview" dated 27 June 2017 created by Ms PP, B was asked to list good things and bad things about each of her parents. In relation to her father, the good things B listed were "fun, takes us skating, funny, teases us". The bad things B listed were "gets angry over small things, hypocrite - fine for him to do something wrong but not us".
2. In relation to her mother, under the heading good things, B listed "Nice, she understands me - can talk to her about anything - she's my best friend". Under the heading bad things B said "nothing". Asked whether she was worried about anything, B listed her worries as "Mum dying e.g. on the way home from work". The report notes:

Strategies for managing worry about Mum

Help for dealing with Dad when he's angry

1. Under the heading "behavioural observations" the report noted, in relation to the father:

"makes us sit outside when he's angry..."

"I feel scared about once a fortnight...when ever [sic] he gets angry I back away & walk away from him, then he sends me outside."

"Dad thinks I should be more like my sisters; they just agree with him."

1. A similar assessment was conducted with C. C is noted to have said about her father "Gets angry shouts at us - if we misbehave or don't do what we're told". In relation to her mother, C is noted to have said, "Gets cranky and tells us not to do it again". C nominated her father as the angriest person and the saddest person and her mother as the easiest person to get along with.
2. On 4 July 2017 Ms PP noted that B had presented as bright and highly engaged. She noted that B said that she was "Feeling more comfortable with dad/less signs of anxiety". B "Reported enjoying the school holidays with her father and no episodes of him becoming angry".
3. Also on 4 July 2017 the paternal grandmother wrote a letter to the mother stating inter alia:

It has been a long hard road "dodging darts" and mustering a great deal of patience to finally have [the father] allow me to spend some time with the girls which I did Friday night and Saturday morning...

I would not want to jeopardise the few occasions where I manage to see them - and it is not an option for me not to see my grandchildren, as I have been a part of their lives since they were born and have a great deal of love for them.

1. The paternal grandmother observed that she had witnessed the father insisting that B, who had turned 13 years of age, should bath with the younger children. Initially the father refused B's request that she should have a shower. The paternal grandmother described the father standing over B while she undressed and got into the bath.
2. The paternal grandmother stated in a letter to the mother:

I think we are all aware that [the father] can be insensitive to the personal needs of others and, at this time particularly, whilst he is still somewhat preoccupied with his own situation, he may be missing signals he otherwise he would not miss. I am hopeful that generally his common sense prevails, not just for his sake, but for the rest of us as well. I do not wish to see him alienate us any further and I am attempting to pave the way for some healing without having my own boundaries compromised.

1. In a counselling session on 11 July 2017 the mother told Ms PP that B had told her:

When she was staying with her father last week he pushed her and she fell over. Incident triggered by not cooking the eggs for breakfast right.

[The mother] reported that he then proceeded to yell over her when she was on the floor and she wet her pants 'out of fear'.

1. Ms PP noted, "B was encourage [sic] to discuss the above incident involving her father, however was very reluctant". Ms PP recorded:

Informed [B] that her safety/wellbeing is of most importance and that she did the right things talking to her mother about it. Encouraged to continued speaking with mother after staying with her dad and let her know of any times that she feels scared.

Discussed her desire to see her father. [B] seemed very adamant about seeing her dad and enjoying being with her dad.

1. On 28 July 2017 the father sent an email to the mother stating inter alia:

[C] is not coping as well as [B] with your moving out of our family home, where they feel a huge sense of stability and safety in what they have always known. She does not understand why our family all together is not the focus and priority for you, as it is with me that I have communicated on many occasions with you and its importance for all of us. I will not get involved in these conversations with her on your choices, that I strongly disagree with, to move out and all the disruptions it has created to our family when the priority should be moving forward from mistakes and being adults (good parents) in strength and maturity work through to keep what is so important together for all involved. The choice you have made has been yours alone and in opposition to what I think is important and a priority for our family that should be the focus for nothing is more important. However, that strength and maturity plus on countless occasions asking you to come home and heel [sic] with me for each other and our family, has been met with no reaction or equal focus and priority of importance from you.

1. That email does not sit comfortably with the father's evidence that, in May 2016 the mother had not reconciled herself to the separation.
2. On 2 August 2017, the father sent the mother an email that consisted of 11 A4 pages.
3. Among the volumes of emails from the children to each parent which were tendered were emails to the mother between July and September 2017. The messages from the children are loving and express affection.
4. On 24 August 2017 C texted the mother saying "Love you so much I will call you tonight so be prepared for my call". C sent a similar message on 30 August.
5. The father asserts that, in September 2017, C began to tell him that the mother was angry and C was scared of her.
6. On 15 September 2017 C sent a message to the mother saying "love you so much have a great sleep". On this day, the class teacher reported concern that C was becoming withdrawn.
7. On 19 September 2017 B's school counsellor noted that B was still seeing Ms PP. The counsellor noted that B told her that her father had said "we don't talk about people behind their backs so don't talk to the counsellor about me". B reported that her mother "cries all the time".
8. In September 2017, the father met his new partner, Ms QQ, at the beach where the father and the children were staying for a holiday. The father asserts that he had intended to take the children overseas but that the mother had withheld D's passport until the last minute and when they arrived at the airport he found that the passport had expired. That was what he told Ms QQ.
9. The mother disputes the father's version. In her affidavit she deposed that the father, at all relevant times, held the three children's passports which he retained after returning from overseas with the children. She deposed that she emailed the father and reminded him that B's passport might need renewing and she signed the forms to enable the father to apply for a new passport for B. She was not cross-examined about the father's allegation that she had given him an expired passport. At this time, the father was engaging in an oppressive email correspondence with the mother. More will be said about the father's emails later in these reasons. There was no email about this alleged failure on her part to provide a current passport for D. I view it as highly unlikely that, if the mother had failed to facilitate the planned holiday, the father would not have reacted in angry emails. I do not accept the father's evidence in relation to this issue. It is, however, relevant that he told the children, and Ms QQ, that the cancellation of the planned holiday was the fault of the mother.

[C] stated that she had called her dad the previous night and asked him to come and get her and had asked dad to live with him full time. [C] stated that there was some confusion from her mum and she had to get her dad to explain what was happening. [C] stated that her dad told her he had contacted the police to check it was ok to get her before arriving.

1. On 27 November, C went home with the mother after school but in the early evening, contacted the father to come and collect her.
2. Thereafter, the father deposed, "[C] and [D] continued to refuse to spend time with [the mother]" despite his encouraging them to see her.
3. The mother deposed that D ceased overnight time from 28 November 2017.
4. On 2 December, B was mentioned in the school newsletter and sent a copy to the mother. The mother says "You should also send these things to Dad". When B protested, the mother replied "You send them to me and it's not hard for you to send them to Dad also."
5. On 5 December C's class teacher noted that the mother came to class at 3pm to see C and that they appeared to chat amicably.
6. The mother emailed the father, asking him not to come to the school that afternoon when the girls were to be collected by her. She asked that he keep to the agreed schedule, stating that she had not seen C for 14 nights and that it was not to be left to the children to decide where they lived.
7. The father went to the school and collected the children.
8. At 3.51 pm on 5 December 2017, the father emailed the mother, saying that the children had come to him in tears saying that the mother "turned up in their classroom early and started [sic] yell at them, talking over them and didn't let them say anything". He stated "I will try over the coming days to encourage the girls to see you this weekend and in the meantime I think it best if you give them some peace and reflect on what is important and healthy here."
9. The note kept by C's teacher does not support the father's version of that event. The teacher noted that she was "able to see C & mother. The chat appeared amicable. C returned to the classroom".
10. The father asserts that on 8 December 2017, C told him that, in the school playground, the mother chased her, grabbed her and pushed her over. The record kept by the school indicates that the teacher saw the incident and did not see C pushed over. C said that she ran into her classroom to get away and the teacher "saw me crying and did nothing because she gets tricked by mum. I can't do this anymore Dad". It is the mother's evidence that she went to school on 8 December for presentation day. She saw only D who was quiet and withdrawn, and in the presence of the father. Both C and D went home with the father.

Yesterday I did not like how you pushed me when I said that I wanted to go to dad's and that I wanted to be with dad. Please don't ever push me like that again...you make me sad and unhappy and you call me names as well as dad. All the things you say I am, I am not.

1. The father deposed that, despite his efforts, D (who was then aged nearly six years) stopped any contact with the mother after the mother came to the school on 11 December 2017 and took D out to lunch.
2. On 12 December 2017, the father sent an email to the mother and to the children's school principal. He set out a conversation which, he said, took place with D on the afternoon of 11 December:

"[D], why are you crying honey, whats [sic] wrong?"

"Mum came to school today at lunch and took me to a café."

"That's great honey, that would have been fun!"

"No it wasn't."

"Why honey?"

"Because I did not want to go with her."

"If that is how you felt, then why didn't you tell her."

"Because I was scared of her and embarrassed in front of my friends when she came. I did'nt [sic] know she was coming.

"Sorry honey, I did not know either. Why where you scared [D]?"

"Because if I told her that I didn't want to go with her then she would not have listened to me and just do the things she does and says that make me sad and be quiet."

"Well, it's important to say what you feel honey."

"But no one was there to help me so she could have made me do what she wanted like she always does."

1. The father, in the email of 12 December, wrote to the mother:

...this continued unfortunate behaviour of yours, which has caused the girls to unfortunately feel the way they [sic] in not wanting to see, is not healthy or the right approach to give them the comfort they need in my continued efforts to support and encourage them to want to see you.

I am now dealing with them saying this morning that they don't want to go school because they are afraid you will show up again. Putting me in a position where I have to write this email, in the middle of everything else that has to be done this morning to get them to school.

This has now added to the problem of your behaviour that makes them feel the way they do.

They have asked you countless times now to stop calling them little liars, deceivers, manipulators and nightmares whenever they say what they feel or want. To stop getting angry, yelling at them and calling them names when they say where they want to be and how they feel. To stop saying they are just kids and what you want as the parent is more important - which you say to manipulate and try and silence their voice and what they feel, their emotions. They have asked you countless times now to stop saying bad things about Dad all the time that makes them not want to be with you because it makes them sad and unhappy.

...

Showing up to school today unannounced (that caught [D] by surprise and embarrassed her in front of everyone) and pulling [D] out of school without her or my prior knowledge, has not helped the situation in improving the way the girls feel due to your behaviour that makes them feel the way they do, as your behaviour creating the problem is deteriorating and unfortunately worsening the situation of how they feel towards you.

1. On 14 December 2017 there was a loving exchange of emails between B and the mother ending with B sending hugs and kisses and hearts and "You're the best".
2. On 15 December 2017 the school principal responded to the father's email advising that the school could not prevent either parent from picking up, dropping off, or accessing children during the day. The father replied on 15 December 2017:

I have asked simply to be informed and naturally advised if [the mother] shows up and tries to take either of my daughter's [sic] out of school during school time. As a consequence of what has been passed on below.

1. On 22 December, the mother went to the former matrimonial home to collect the children. C and D refused to go with the mother. D stated, "I cannot come home with you because of your negativity."
2. On 23 December the mother sent a loving email to C about Christmas, and told her she was always welcome. C replied on Christmas Eve:

Have you even read any of the emails that I have sent to you? You do not listen to how I feel, and the emails you send me do not change who you actually are.

You say to me that I am a manipulator, troublemaker, criticiser, that god knows if I am lying. I really don't care of what you have to say about me because I will always say how I feel for the rest of my life. You are the thing that you call me.

Of course I am still part of the family why wouldn't I be. What a weird thing to say. I don't really want to know what your [sic] doing because after everything you have done to me I don't really care because whenever I am near you I feel unhappy, stressed and uncomfortable...

1. On Christmas Day, when the mother arrived at the father's home to collect the girls, they refused to go with her. The father deposed that he tried to encourage the girls to go with their mother but they were reluctant. B left with the mother. Ms SS, a friend of the mother's deposed that the father brought all the children to the door, and made them tell the mother how they felt about spending time with the mother and seeing the maternal grandparents. She deposed D said very quietly "um, sad and unhappy" to which the father responded "There, you can bring your friend as a witness, I have my children." He then called her a liar, deceiver and manipulator and asked her "Is that why you abuse your children...".
2. Later that day, when the mother sent C a loving message saying she missed her, C responded with the same email she had sent on Christmas Eve.
3. On 30 December 2017 there was a loving exchange of emails between B and the mother ending with B saying "love you have a good day tomorrow."
4. On 31 December 2017 B's last message to the mother was "Love you too xoxo".
5. In January 2018, whilst on holidays in Queensland with the mother, B broke her leg. The mother returned B to Sydney and she was thereafter in her father's care. The evidence of the surrounding events will be examined later in these reasons.
6. On 17 January 2018, a provisional Apprehended Domestic Violence Order ("ADVO") was made against the father for the protection of the mother. The basis of the application for the ADVO was the father's voluminous and harassing emails to the mother and her allegation that he persisted in coming to her home uninvited. The conditions of the order were that the father should not assault or threaten, stalk, harass or intimidate the mother or go within a hundred meters of any place where she lives or works.
7. On 23 January 2018, an interim ADVO was made.
8. In January 2018, the mother reports that she had a discussion with B about returning to a psychologist. B responded "I'm fine. I've got lots of life experience. I don't need anyone to tell me what to think".
9. On 29 January 2018, notes produced by the school record that the father attended at school. The notes record that the father said he did not want any of the children seeing the counsellor at the school. The father said that the mother had taken C out of school for a milk shake at the end of the previous year and that when the mother came to pick her up C didn't want to go with her mother so the mother pushed her over. The school recorded that this didn't happen, the class teacher saw the whole event and C went willingly and happily after talking to her mother.

[The mother] took [B] away for days and brought her home with a very badly broken leg. The implication was [the mother's] fault. The father said he wanted to be called if the mother tried to take the children out of school. The father complained that the mother has been making friends and having coffee with people who don't even know the children and poisoning the friends against the father.

1. The notes kept by the school record that, on ... February 2018, D's birthday, the mother emailed to say that it was D's birthday and she would like to come to the school at 1 pm and spend some time with D and take her to a cafe for lunch. The notes recall that the mother arrived and met D outside the school office:

[D] didn't want to leave so they remained there until [D] opened her presents from Mum. Meanwhile [C] arrived and appeared not to be happy that Mum was there.

After about 1/2 an hour [the mother] left + [D] and [C] started to cry.

1. On ... February 2018 the deputy principal of [D's] school noted:

[The mother] came and visited with [D] at lunchtime for her birthday. They sat in the corridor between the office + staffroom. Office staff were watching and I passed back + forth a few times and all seemed calm.

After [the mother] left, at the end of lunch, the girls were in [the principal's] office crying. [The principal] and I talked at length to the girls, they said they didn't want to go with Mum + seemed worried. We told the girls that we would never make them go home with anyone that they didn't want to, that they are safe at school and our job is to keep kids safe at school...

The girls were keen to phone Dad, I took them to my office, dialled the number and left them in private with the door closed. [C] came out and said dad wanted to speak to me. I told dad that Mum had come see the girls at lunchtime, the girls seemed fine during the visit and then became upset when Mum left.

Dad was worried Mum would try to pick the girls up after school, I said that mum had given no indication that Mum would do this and Dad said he would do pick up at normal time.

1. The deputy principal noted that after five minutes or so the girls were calm and chatting about D's birthday and all three went back to class calmly.
2. The deputy principal noted that the mother phoned at 3.30 pm having just received a letter from the father's lawyer saying that he had been telephoned by the school telling him that the girls were "distressed and hysterical".
3. There was a loving text exchange between the mother and B on 31 January 2018 and ... February 2018, signing off with "Love you lots".
4. On 9 February 2018 charges were laid against the father of "stalk or intimidate intending to use fear of physical or mental harm" between 4pm on 4 March 2016 and 11.55pm on 11 January 2017 alleging that the father intimidated the mother with the intention of causing her to fear for her physical or mental harm. Those proceedings were returnable on 27 March 2018. The charges were laid after the police considered the email correspondence between the father and the mother. The facts relied on by the police included, inter alia:

In response to email messages sent by [the father], about 7:44pm on 4th March 2017, [the mother] wrote an email stating "Please stop this controlling behaviour.... The [father] sent a 3 and half page response which generally criticised [the mother].

...on 10th June 2017, [the mother] sent a text message to [the father] stating "Please stop sending me these messages. It isn't helpful. You have moved on, it's time to stop looking back. Please keep your communication relevant to *important information about the girls. *our financial settlement". The [father] continued to send text messages and emails with simular [sic] excessive and harassing content.

...on 16 August 2017 [the maternal grandmother] wrote an email to the [father] requesting him to stop sending her long critical email [sic]. [The father] continued to send long and critical emails to [the mother].

On the 1 December 2017, after speaking with Police [the mother] wrote an email to [the father] request [sic] him not to send such long and derogatory emails and to stop turning up at [the mother's] residence without notice. [The father] replied with a response over two pages in length with critical and harassing content which distressed [the mother].

About 6:00am on 8th December 2017, [the mother] attended Suburb RR Police Station and provided an initial statement to police.

...on 8th December 2017, [the mother] wrote an email to [the father] informing him she was "intimidated and frightened" of [him]. [The father] replied with a four page response as critical and distressing for [the mother] as previous responses. [The mother] wrote another email to inform [the father] about how distressing his responses made her feel. [The father] replied with a 2 and half page response which was as critical as previous replies.

...on 11th December 2017 [the mother] wrote an email to [the father] again asking him to stop with his long belligerent responses. [The father] continued to write excessive and critical emails to [the mother].

About 6:00pm on 11th December 2017, [the father] turned up to the [mother's] residence without being invited or having informed [her]. [The mother] has previously made requests for [the father] not to do this.

About 10:37pm on 10th January 2018, [the father] sent a text message to [the mother] which include [sic] two photographs of Valentine's Day Cards which [the mother] had written to the father about 4 years ago. [The mother] again request [sic] that [the father] not contact her unless its [sic] directly related to the children or their divorce and for any non urgent communication to be via email.

1. The father defended the proceedings and gave notice that the older children would be called to give evidence in his case.
2. On 12 February 2018, the mother filed an application seeking final and interim parenting orders.
3. On 13 February 2018 and in the following days, Dr TT, B's orthopaedic surgeon refused to provide information to the mother, on the instructions of the father. These events are discussed more fully later in these reasons.
4. On 17 April 2018, the proceedings in relation to the ADVO sought by the police against the mother for C's protection were listed for mention. C attended at Court with her father. The proceedings were adjourned on the application of the police.
5. On 14 March 2018, interim orders were made to the effect that the mother have sole parental responsibility for the children and that the children live with the mother. The children's contact with their father was to be professionally supervised by X Group.
6. The reports of the X Group supervisors are in evidence. They show, as was the father's evidence, that he did not say anything critical of or derogatory about the mother. However, they also show that the father responded to the children's complaints about their mother without ever questioning their accuracy or suggesting to the children that they should comply with her directions and her discipline.
7. On 16 March 2018, the police were involved after they received a report that C had been seen in Suburb DD. C at the time was at home with her mother. That report was made by Ms EE, a close friend of the father. The police officers spoke to C who had been texting with Ms EE. The text messages were in evidence. C's first text stated that she wanted her father and "I am planning to run away tomorrow to see my daddy. I hate it here I NEED HELP! Please SAVE ME". Ms EE replied "Sweetheart I'm so sorry. If she hurts you call 000". C responded "Okay thanks I just want daddy can you help me". Ms EE responded "Record your proof of her being nasty" and later "You can also ring Facs on 132111 and tell them you are in danger".
8. On 16 March 2018, C ran away from the mother to her father's home. The father and Ms QQ were not home and received a telephone call from Suburb Z Police Station. Over a period of time at Suburb Z Police Station, C was spoken to by a police officer and ultimately was taken to L Hospital and admitted.

Last night the Police finally listened to me and realised the truth. They made the decision for me to be back with daddy and I feel relieved, safe and happy again... I told them the truth and all the things Mum does to you like tackling you, pushing you and shoving you in the back, grabbing you and everything else she does. BUT they said you have to tell them so they can help YOU. I also told the Police the truth about how Mum makes us hate Dad and hurt us

1. On 14 April 2018, the police took out a provisional ADVO against the mother for the protection of C.
2. Competing interim applications for C's care were heard and judgment was delivered on 26 April 2018. Each of the parents sought an order that the children live with her or him and spend no time with the other parent. An order was made that the mother have sole parental responsibility for the children who were to live with her and spend no time with the father. The father was restrained from communicating with the children or approaching them, their schools or their residence.
3. Ms EE, who had been caring for the children while the father attended Court, returned them to the mother.
4. On 28 April 2018, the mother was informed that the proceedings for the ADVO against her would be withdrawn and the application was dismissed on 8 May 2018.
5. On 13 August 2018 orders were made in relation to the charges against the father, restraining the father from assaulting, threatening, stalking, harassing, or intimidating the mother. He was restrained from going within 100 meters of any place where she lived or worked.
6. The father alleged that the mother deliberately omitted to deliver a hand-made Father's Day card from B.
7. Surgery for B's leg scheduled for 24 October 2018 was cancelled.
8. The trial commenced on 29 October 2018. The matter was initially listed for five days but was unable to be completed in that time.
9. There were a number of procedural and interim applications in the period between the completion of evidence on 2 November 2018 and the resumption of the trial on 1 April 2019.
10. Those applications are dealt with later in these reasons.
11. In the reasons for judgment delivered 2 November 2018, in relation to the arrangements for the intervening period before the trial resumed, I stated:

... the ICL should speak to the children with the assistance of a Family Consultant of the Family Court of Australia. In the course of that conversation, the children can be assured that I am very well aware of their consistently expressed wish to live with their father and that I have read their emails, texts and letters to their father since 26 April 2018. They might also be told that their wishes, though relevant, are not determinative of the outcome of the proceedings.

1. On 20 November 2018, NN, the daughter of Mr and Ms EE sent an email to C stating:

Feeling so sorry for how her lies ruining your life. stolen from your dad by strangers n idiots...U right she is a monster. If I had a mum didnt love me and listen to my feelings I would be so angry and do anything to get away.

1. On 30 November 2018 NN sent C a link to Kids Help Line stating:

I here my dad n mum saying how much she always lies. she only lets u guys see who lies also.....the people that r trying to kill ur n ur sisters life u want together. Dont let them [C].

(As per the original)

1. On 3 December 2018, Mr EE sent an email to Dr K to which reference is made later in these reasons.
2. On 17 December 2018, the children sent an email to the father containing an abusive and offensive video clip about Ms QQ. Reference is made to that email later in these reasons.
3. On 15 January 2019 there was an exchange of emails between the father and the paternal grandmother. The grandmother suggested, inter alia, that the father seek counselling for his anger. His response was belligerent.
4. On 8 February 2019 the children's dog, who was living in the father's home, died. The father's solicitors advised the mother on 14 February 2019 stating that the dog's ashes had been placed in an urn and were being held by the father "for the girls and our client to have a ceremony in celebration of the dog's life in due course". The mother asked for the dog's ashes to be given to the children. The father refused.
5. There were email exchanges between the father and Dr CD, a child and family psychiatrist whom the father sought to call in his case, in February 2019. In a lengthy email dated 13 February 2019 the father provided a history of the proceedings, in which he stated:

Father starts hearing from people in the system that he is disliked by the family court because he wont be quite [sic] and stands up to their abuses. He is told the brethren in the fold have put a black mark to his name and their solution is to keep attacking with unjust decisions and abusing children; Hoping their continued abuse will elicit and force a reaction from the father to commit suicide or do something drastic to protect his children from the family court abuse.

1. On 14 February, Dr CD replied. He encouraged the father to prioritise the best interests of the children.
2. The following day, on 17 February 2019, the father created a Social media service 2 account @...1. It is conceded that the name was an abbreviation of "...". The description of the account is "Protect ur feelings, no one tells u what ur heart knows. If ur feelings aren't respected they don't love u and are fake, abusing u in their lies..." The profile picture includes the words "real recognises real, fake flock together". The content of the messages posted on this account will be discussed later in these reasons.
3. On 30 March 2019, C sent an email to the father in which she stated:

I am BEGGING the court people to make the right choice! As a child my life has already been turned upside down, no child should experience what me and my sisters have experienced!... I am in tears writing this right now.IM BEGGING YOU please can I be with my dad?!...

...

PLEASE COURT PEOPLE I'M BEGGING YOU I CANT TAKE THIS ANY MORE I NEED MY DAD! I NEED HIM...

1. The trial resumed for five further days commencing on 1 April 2019. Counsel for the father proposed that submissions be in writing. That proposal was not acceded to. An agreement was reached between counsel that the evidence would conclude on the Friday and submissions would be made on the following Monday. Because counsel for the father was part heard in another matter on Monday, it was agreed that written submissions would be made by counsel for the father by 10 am on Monday and that oral submissions would be made by senior counsel for the mother and counsel for the ICL.
2. At about 4.30 pm on Friday 5 April 2019, before the father's cross-examination of the single expert had concluded, an application was made on behalf of the father to further adjourn the proceedings on the basis that counsel for the father was unwell and unable to continue. Further dates suitable to all counsel were then allocated in September.
3. On 7 April 2019, the father posted on Social media service 2 the 12 Steps: "An Evil woman's tick list to destroy kids & their father for money & jelousy [sic] of how much the kids love their Dad".
4. On 9 April 2019, the father initiated two phone calls to B.
5. On 10 April 2019, B messaged Ms EE on Social media service 1 asking, "Could you ask dad what a full stop is meant to mean?"
6. On 16 May 2019, C sent an email to her father expressing sadness about the death of Bob Hawke. The father replied on 5 June 2019 with a heart emoji.
7. The mother deposed that at about May or June 2019 she found C in her room crying. C said:

[B] reminded me about the awful things I wrote to you last year. I feel so guilty and I'm so sorry. I didn't want to write them.

1. The mother reassured C who said "yes, I know you have forgiven me but I haven't forgiven myself".
2. On 5 June 2019 C received an email with a heart emoji. The father denies that he sent the email but it is likely that he did so.
3. In mid June 2019 B said to her mother "Dad sent me a message through NN. NN messaged me and said 'Your dad said you shouldn't wear the ring [Ms QQ] gave you'." The father denies that he caused NN to send the message.
4. Also in mid June 2019, B told the mother:

When I was sending you horrible emails and messages Dad used to write them. He would tell me exactly what to say and I wasn't allowed to say anything nice to you. Whenever I called you he would stand next to me.

1. On 28 June, the father initiated a call to B.
2. On 14 July 2019 the father replied to an email from D saying "i love you so much" with a heart emoji.
3. On 17 July 2019 D received an email from the father's email address. The father denies that he sent the email but it is likely that he did.
4. The mother deposed that on 25 July 2019 C came to her and said:

All those awful emails I wrote to you last year when I was with Dad, Dad was telling me what to write, sometimes he even wrote them for me.

1. The mother deposed that on 28 July 2019 B and C had a conversation with her. B told her that NN had sent her an email instructing her that she was to copy the email to her father. B said that she sent the email but didn't read it. That email was the subject of cross-examination of the mother by counsel for the father. The mother maintained in cross-examination that she did not believe that B had written the email.
2. The mother deposed that, during the conversation on 28 July 2019, B told her that she had been talking to her father but stopped after the dog died. B said that NN would call her and tell her to call her dad and that she used friends' phones or a public phone. B told the mother "one time I told NN that I wanted to spend time hanging out with my friends and NN said 'Your Dad is more important than your friends". The father denies that he asked NN to arrange for B to call him.
3. Also in the same conversation, C said to the mother:

I'm sorry I ran away. I don't know why I did it, I just did what he told me to. Dad is going to be so angry with me. Dad told me I was the one responsible to run away because I am the fastest and strongest and if I didn't run away, Dad told me his life and my sister's [sic] lives would be ruined. I was the only one who could fix it.

1. The mother deposed that later in the conversation C went to her room and brought her iPad back. C said:

[B] didn't want me to show you but I need to talk to you, I don't know whether to show you or not... Dad made a [Social media service 2] account for us.

1. B then said, "Dad sent me the details. I haven't even looked at it". The Social media service 2 account was entitled @...1.
2. On 6 August 2019, C's teacher noted a conversation with C:
   • Wanted to talk about the [Social media service 2] page she said dad created
   • Showed her mum, [B] didn't want to
   • Not sleeping well
   • Feels guilty about the things she said to her mum, which dad asked her to type up
   • Spoke about how mum would not be angry at her for those emails
   • Wants to stay with mum, but is scared dad will do something to himself
   • Mentioned an incident when he was in the laundry and had red handprints on his shirt. [C] not 100% sure what the red was.
   • [C] was put in a cold shower when she was in trouble - said easier to do what he asked after this - didn't want to get in trouble.
   • [B] was thrown in the pool
   • Doesn't want to talk about it with her friends, as she doesn't want to burden them with everything.
3. On 7 August 2019 B showed her mother her phone with a notification "Daddy Millard missed call - just now". Later that day, B told her mother, "Sometimes dad calls me if I haven't messaged him for a while. He usually calls me when I am at school. He hangs up if I answer the phone". This phone call was recorded in the documents produced on subpoena by the phone company.
4. On 7 August 2019 and again on 14 August 2019, C received an email with heart emoji which appeared to have come from the father.
5. The ADVO for the protection of the mother expired on 12 August 2019.
6. On 14 August 2019, C said to the mother "I am worried that dad is going to murder me. Do you know he has a sword at the house and a knife in the car? I've seen him angry..."
7. The mother deposed that, on ... August 2019, C told her:

When we were living with Dad last year, he told us a story about a 13 year old, she was about the same age as [B], and she had a terrible mother, but a really wonderful father. One night when the mother was asleep, the girl stabbed the mother in the lung and the mother died, but the girl didn't get in trouble, because she had such a wonderful father and the mother was horrible.

1. On this same day, C messaged the father a birthday message.
2. On 20 August 2019 C and B received an email with an attachment of a picture of candles spelling out "I [heart] you". The emails appeared to have come from the father.
3. On 21 August 2019 B received an email with heart emoji which appeared to have come from the father.
4. Also on 21 August 2019, B said to the mother:

Dad sent me a text message telling me about the [Social media service 2] account. The message just said '...'. I worked out what he was talking about. I don't have the text message anymore.

1. The mother deposed that, on 17 September 2019, she had a conversation with B where B told her "Dad's made another Social media service 2 account". The mother asked how B knew and B said "He sent me a request on Social media service 2 to 'follow' C and I from the account. I declined him but he requested again. I think it was to get my attention".
2. The Social media service 2 account was called @...2. The profile picture on the account was of the three children kissing the father. The father's name is on the page. The mother downloaded the posts from the account. The content of that Social media service 2 account will be discussed later in these reasons.
3. The case was due to continue on 19 September 2019. It was determined the matter could not, because of evidence of events that had occurred during the adjourned period, be completed in the two days allocated. It was instead listed for case management. At 9am on that day the father posted on Social media service 2, using the @...2 account, a photograph of the children, a series of photographs with captions about parental alienation and false allegations of family violence.
4. The mother sought an order that the father refrain from publishing images of the children or the mother. Senior counsel for the father told the court that the father would be advised about his obligations. No order was made. By letter dated 19 September 2019, the mother's solicitors asked whether the father would voluntarily refrain from posting further material, noting that immediately after the proceedings finished on that day, the father had uploaded more photographs of the children on Social media service 2.
5. The father's solicitors replied, denying that the father had uploaded the photographs.
6. On 29 October 2019, the father sent an email to the mother of some 13 paragraphs, similar in tone and accusatory content to his earlier emails.
7. The police obtained a provisional ADVO against the father on 31 October 2019. The ADVO is returnable in the Local Court on 3 March 2020.
8. On 17 November 2019, C told the mother that she had received an email from the father. She showed the email to the mother. The father had re-forwarded to C the email that C had sent to him on 1 December 2018 telling him that she missed him and "Mum is always lying and I can never trust her".

...stop requesting to follow me idk [I don't know] why you'd think I'd accept you

Stop requesting to follow [C] you already put her through enough nights of going to sleep crying because of all the stuff she saw on the other account she doesn't even have her account yet because I'm managing it.

Do not ever request my friends again.

Delete all the pictures of me, a [C] and [D] and change the profile picture I'm actually embarrassed by you for the first time.

1. The father responded to B's text the next morning saying:

Confirms damage her brainwashing lies abuses are having on my beautiful daughter's stuck in her awful alienation campaign. Her malicious psychosis is destroying them in her risks she is using and exploiting them in. Putting them in middle of her sickness then telling the court what her abuses make them say. It's like [the paternal grandmother's] sickness. So destructive. Girls are so stressed and bewildered being bombarded daily with nasty lies their alienated in. Im so worried for their safety, health, stability and development. Their deteriorating in abuses of her lies she involves, uses and exploits them in. They are the most important priority of my heart and life. I cry every morning what they are going through in her sickness showing no genuine care or love for them. Everything/one to her, including the girls, is sadly a game for her lies abusing all of us. All I can do is keep being the strong loving dad the girls know I am and keep standing up for them. It's so hard defending and protecting their well-being and best-interests when their trapped in her alienation. The abuses of her lies and orchestrations hurting the girls are worsening in her fear of them. She's involving, playing, our children in all her toxic projecting manipulations, stories deceptions like she is the court, everyone. Still breaking orders. My heart breaks for the girls, what their having to deal with in her lies harming them. I just want to give them a big hug, have them focus on healthy things and safe from poison and lying stuff she dumps on them.

1. B showed the message to the mother but did not respond to her father.
2. On 23 January 2020, C sent an email to the father stating "Hi dad I'm excited to start high school it's going to be a whole other experience and I'm really excited to go meet new people". The father responded, "To who is sending me emails through my daughter's accounts pretending to be them. These toxic manipulations are not my children, sounds nothing like them." The father included in his response a link to the @...2 Social media service 2 account.
3. On ... February 2020, D sent an email to the father saying that she missed him and wished he could be with her for her birthday. The father responded to D, including a link to the @...2 Social media service 2 account and saying:

I'm doing everything I can sweetheart and missing you every second, so much.

Happy birthday my amazing daughter. Hope you enjoy the presents I got you.

I love you so much and can't wait to give you a big hug and kiss

Lots of love

[Dad]

1. On the afternoon of ... February 2020 D sent an email to the father saying "Hi [Dad], Please mow the front hedge and the weeds it looks a little bit messy but I am not trying to be rude but please I still love you sooooooo much." The father responded with a kissing and love heart emoji. The message contained a link to the @...2 Social media service 2 account.
2. The matter was listed to continue on 11 February 2020 for a further four days. The mother had filed three affidavits. The father had filed an affidavit in response to the mother's affidavit. A Notice to Admit Facts had been served upon the father and he had responded.
3. The father did not attend on 11 February 2020. Senior counsel for the father advised the Court that, although his legal advisors had attempted to contact the father that morning, they had not received a response.
4. The matter was stood in the list until 11.00 am to give the father's lawyers a further opportunity to contact him. The father was advised by his lawyer that it was likely that the matter would proceed in his absence if he did not appear at 11 am.
5. At 10.13 am the father sent an email to my associate indicating that he would not attend. This email was some 12 pages. A copy was immediately provided to all legal parties.
6. The father's legal representatives sought, and were granted, leave to withdraw from the proceedings.
7. The matter proceeded.
8. Counsel for the ICL drew the Court's attention to the fourth paragraph of the father's email which stated:

I was given a time to meet with my counsel yesterday afternoon at 3pm. My instructions to be represented had not yet been reviewed for finalisation preparation to commence this morning. I distressingly cannot commence this hearing as a consequences, I have no team prepared with my instructions or even a review of them these last couple of weeks to cleanse.

(As per the original)

1. In so far as it was possible to construe those words as an application for an adjournment, that application was formally refused. I indicated that reasons for the refusal of the adjournment would be included in the substantive reasons. The matter is dealt with later in these reasons under the heading "Procedural/Interim Applications".
2. In the course of the hearing on 11 February 2020, senior counsel for the mother tendered a summary of documents produced on subpoena the phone company indicating that between 5 April 2019 and 3 September 2019, the father sent 52 SMS messages to B; one MMS message to B and initiated four phone calls to B.

1. An Independent Children's Lawyer ("ICL") had been appointed for the children.
2. Dr K, a child and family psychiatrist, prepared two reports as a Single Expert. The first report was dated 27 June 2018 and had been prepared before the trial affidavits had been filed. Dr K answered questions in a document dated 9 July 2018.The second report, dated 12 March 2019, was prepared in the interval between the first five days of the trial and its recommencement.
3. Dr K was cross-examined in April 2019.
4. The mother relied upon an affidavit by herself, and affidavits by Ms N (the mother's cousin), Ms P (the father's aunt); Mr P (the father's uncle); Ms O (the maternal grandmother), Ms UU (to whom the mother was referred for counselling), Dr VV (a therapist who treated the mother between 2014 and 2017), Ms SS (a friend of the mother), Ms WW (B's teacher in 2016) and Ms LL (a child minder).
5. The father relied on two affidavits by himself, and affidavits of Ms W (who supervised three periods of time between the father and the children in March and April 2018), Ms QQ (the father's then partner), Ms EE (a family friend), Ms XX (a psychologist) and Mr YY (a family friend). Ms W and Mr YY were not called for cross-examination and their evidence will be given the weight appropriate in those circumstances.
6. In addition to those witnesses who had sworn affidavits, the father sought to rely on the evidence of Sergeant ZZ to whom he proposed to issue a subpoena to give evidence. However, Sergeant ZZ was not called in the father's case.
7. The ICL relied on a report of Ms AB, a psychologist who saw B on eight occasions in 2018. She was cross-examined.
8. On 1 April 2019, at the commencement of the second five days of the trial, the husband sought to rely on an affidavit of Dr CD, a psychiatrist whom he had consulted in February 2019 and with whom he had five sessions. That affidavit was allowed over objection and Dr CD was cross-examined.
9. The hearing was due to resume in September 2019 but would not finish. The hearing finally concluded on 11 February 2020.

PROCEDURAL/INTERIM APPLICATIONS

Dr K

1. The matter was listed for hearing for five days. On the fourth day of the trial, 2 November 2018, when the parties agreed that a further five days should be set aside and those days were allocated in April 2019, the father pursued an application, which had been foreshadowed, to call the Single Expert on the fifth day to be cross-examined in relation to the father's interim application for orders permitting him to spend time with the children in the period until the matter was determined.
2. That application was opposed by the mother and the ICL.
3. After hearing submissions, I refused to allow Dr K to be called and indicated that I would give my reasons in the substantive judgment.
4. By day five of the trial, the mother's case had been closed. The mother and all of her witnesses had been cross-examined.
5. Because of the lengthy period before the trial was to resume, the father's cross-examination did not commence. There was a real risk that he would still be in cross-examination at the end of the fifth day which would have caused difficulties for his legal representatives in their conduct of the balance of the trial. Instead his partner, Ms QQ was cross examined. The remainder of the father's witnesses had not been reached.
6. Counsel had agreed to forward a large volume of documents to Dr K. Those documents included all of the trial affidavits, both of the parties and their witnesses and bundles of emails from the children to the father; the children to the mother; the father and the mother to each other and from the father to third parties.
7. Senior counsel for the mother and counsel for the ICL had already indicated that cross-examination of Dr K would be lengthy and that both had significant challenges to his conclusions and recommendations. They indicated that the cross-examination would require more than a day.
8. Dr K, in his report, had recommended the resumption of contact between the children and the father. The mother's case has always been that the children should spend no time with the father. Although the ICL has not put a position to the Court, or to the parties, it was clear from some of the submissions of counsel for the ICL, that one of the possible outcomes was an order as sought by the mother.
9. The father's interim application was for an immediate re-instatement of contact, albeit supervised by his partner and a babysitter. The cross-examination of Dr K on behalf of the mother and the ICL would necessarily be required to traverse all of the evidence then available, including the trial affidavits and the documents forwarded to him, which were relevant to that issue.

1. When the matter could not be concluded in the allocated time, on 2 November 2018, it was adjourned part heard for a further five days in April 2019. The father made an application for interim orders re-instating time with the children.
2. That application was refused and reasons for that refusal were delivered on 8 November 2018.

1. The order which was sought by the father in relation to Christmas cards was, relevantly:

That the father be permitted to write a letter to the three children limited to:

(a) Passing on his best wishes and other neutral forms of affection and timely Christmas Cards and birthday cards...

1. Included in the orders made on 8 November 2018, was the following order:

That the father be permitted to send to the ICL, for each child a Christmas card and Christmas presents and, on each child's birthday, a birthday card and birthday presents.

1. At that time, the operative orders were the orders of Benjamin J which restrained the father from contacting the children.
2. The father sent presents and cards to the ICL. The ICL declined to pass the cards on to the children and wrote to the parties sending a copy of the cards and explaining her reasons for withholding them. The ICL invited the father to send new, appropriate cards but he declined.
3. The father re-listed the matter and asked the Court to direct the ICL to provide the cards to the children.
4. The three cards were tendered in evidence.
5. Both the ICL and the mother opposed the father's application.
6. Each card contained a lengthy letter to the child. Rather than simply expressing love and Christmas greetings, the father wrote at length, telling the children how much he missed them and how he would be alone on Christmas Day and thinking of them. He alluded to his promise to protect the children; wishing he could be there to look after them; hoping they had friends who respected their feelings "which are the only sort of people you should be paying attention to" and referred to activities they would do together when "things get back to normal".
7. Counsel for the father conceded that an adult might infer from the father's words that he intended to imply to the children that they needed to be protected from their mother and that she did not properly care for them or respect their feelings but, he submitted, a child would not draw such an inference.
8. It is the mother's case that the father has subtly but persistently undermined her relationship with the children causing significant harm to that relationship.
9. It is unfortunate that the father was unable to bring himself to write a simple and appropriate message to the children.
10. The message he wrote is capable of the interpretation that was suggested and I cannot assume that the children would have thought otherwise.
11. The cards were not forwarded to the children.

1. It was agreed that Dr K would be asked to prepare an updated report and that any material which could be tendered in evidence could first be provided to Dr K for his consideration.
2. Dr K prepared a report dated 12 March 2019 after consideration of the trial affidavits, documents from subpoenaed material and a volume of emails from the children to the father between 14 March 2018 and 16 June 2018. None of those documents had been available to Dr K when he prepared his first report.

1. In cross-examination, Ms QQ revealed that she was pregnant with the father's child, a fact not known to the Court or to the mother.
2. When the matter could not be concluded, an application was made on behalf of the father that he be permitted to write to the children telling them about the pregnancy. Neither the mother nor the ICL opposed that application and orders were made in those terms.
3. The father did not write to the children. In cross-examination, he said that the pregnancy was something he needed to tell them about face to face.
4. However, it became clear that someone had told the children about the pregnancy, probably in October 2018. A screen shot from B's phone was tendered titled "Important dates" which noted "4 sib [emoticon of a baby] news 23 October 2018". The information was probably given to them by Ms EE's daughter NN. A bundle of messages between NN and C was tendered which indicated that NN was passing information gleaned from her parents and the father to the children.
5. The children's formerly positive view of Ms QQ changed.
6. On 17 December 2018, B and C forwarded an email to the father which contained short video clips made by them directed to Ms QQ. Among other comments the girls inserted the following text on the screen:

Your poor kid is going to be ugly without my dads genes. *I like you* *Just kidding bitch* Get in [puts picture of [Ms QQ] in a bin that has 'fake' written on it]

Go to hell. Don't touch my dad. Ever again. No Touching

A song played over the top includes the lyrics:

You're a dusty bitch. You make me sick. I don't like you. You belong in the zoo. We all know you are so damn fake. I don't like you, damn girl I despise you. I'm done now so I'm gonna say bye bitch. JK bitch.

1. In a separate clip the children mouth the following to Ms QQ:

Hey boo guess what. I hate you. I want to hit you with a bus. You make me want to throw up and shit on myself. Delete yourself from my life. You stupid bitch. You remind me of a foot.

In the second clip, the video depicts a bus hitting Ms QQ,

1. In cross-examination, the father revealed that he had not seen Ms QQ since Christmas and that he had received two letters that caused him to query whether he was the father of her unborn child.
2. Ms EE in cross examination said that she had not seen Ms QQ since before Christmas and had not spoken to her. Although she had not spoken directly to the father about the pregnancy, she had been told by her husband that the father was unsure of the paternity of the child. She was clear that she believed that the father was not the father of Ms QQ's child and that conversations about that subject may have been overheard by NN.

Continuation of the proceedings in the absence of the father on 11 February 2020.

1. The father did not appear on 11 February 2020. His legal representatives withdrew.
2. In so far as it was possible to construe the father's email to the Court on 11 February 2020 as an application for an adjournment, that application was refused.
3. These proceedings were listed for hearing for five days commencing on 29 October 2018. It was not possible to conclude the matter in the available time and the parties requested a further five days which were allocated in April 2019. Unfortunately, the matter was not able to be concluded within that time and a further two days were allocated commencing on 19 September 2019. It became apparent on the first day that additional material would be put before the court and the matter required more days. It was ultimately listed for four days commencing 11 February 2020.
4. The existing interim orders prevented the father from communicating with or spending time with the children and those orders remained in force.
5. It was clear that the father was aware that the matter was to continue on 11 February 2020. He had filed documents and instructed new lawyers including senior counsel who attended on the morning of 11 February 2020, clearly anticipating that the hearing would resume.
6. The father's email, received at 10.13 am that morning made it clear that he was aware that the matter was listed to conclude the hearing but that he would not attend.
7. The mother's lawyers and the ICL and counsel were present and ready to proceed. Arrangements had been made for Dr K to attend to be further cross- examined.
8. No doubt both of the parents have been under significant strain as a result of these prolonged proceedings. However, it is the strain being experienced by the children that is most relevant. These children, particularly the older girls, have made it clear in emails to their father, that they have been distressed by the length of time the proceedings have taken. They have been the subject of ongoing proceedings since March 2018. When giving evidence in April 2019, Dr K stated:

...what I think is important is a resolution of uncertainty and to have ongoing unresolved proceedings would be - I would respectfully suggest, would be stressful for everyone, and add stress to the children's lives and their experience in the home of the mother.

1. It is in the interests of the children that the proceedings be finalised and they are able to get on with their lives without the pall of litigation over them.

1. The Outline of Case document filed in the mother's case sets out her contentions in the following manner:

The mother's case is that the children are at an unacceptable risk of harm in the father's care. That risk is said to include, at least, a risk of psychological and physical harm.

...

During the course of the parties' relationship the mother recounts disturbing and abusive behavior that the family were subjected to by the father. There is also evidence from others, including the father's extended family, that corroborates his behavior towards the mother and children. His mother gives evidence that he has assaulted her and on one occasion tried to strangle her.

Post separation there were periods where the children lived with the father. From about 2017 the father failed to support a relationship between the mother and the children. It is the mother's case that the father is unable to tolerate a contrary view to his own or anybody not being in complete alliance with him. If the father's orders are granted the children will not only be at risk of harm but will also be cordoned off from supports and relationships outside of the father. Whilst the mother similarly asks for orders that would see the children having no relationship with their father this is in the context of providing them with an environment free from risk and where they will be able to individuate from her. She will also be able to support extended family relationships.

The father seeks to say to the court that the mother is a risk to the children. Curiously he has sought orders that the children spend significant time with her. He has maintained this position even during periods that the children (or one of them) have been in his care and have not spent any meaningful times with their mother.

What is clear from the evidence of both parties over the last year is that during periods where the father has had time with the children or an ability to communicate with them it has been disturbing and disruptive for the children. During the period that the children had supervised time with the father the mother's evidence is to the effect that it was destabilizing for them. Their behaviour has settled in recent months again in the context of them having no time with their father.

It is the mother's position that it is not in the best interests of the children to spend any time with the father.

(footnotes omitted)

1. The Father's case was also set out in his Outline of Case document in the following terms:

The Father's case is that the three children have and continue to have a strong bond with him. That bond has been undermined by a combination of the mother and paternal Grandmothers' denigration of him, resulting in current Interim Orders of April 2018 that prevent the children from maintaining their relationship with the father.

The father denies there is any basis in the mother's belief that he is abusive, physically aggressive or emotionally controlling of the mother and the children. He denies emphatically the many and assorted accusations made by the mother and paternal grandmother.

The father seeks Orders that provide a basis for a new start, in which each parent can accept they have different parenting styles, but that for the sake of the children they must acknowledge that whilst the children are in the other parent's care, they must be supportive of the procedures and practices that exist in the other parent's home.

As a result of [Dr K's] report, the father has significant concerns that, should he be excluded from the children's lives, as sought by the mother, the children will continue to firmly believe that the current, and any future alienation from him is a result of the mother's actions. Further, if their wishes have and continue to be ignored, and they are deprived of any meaningful relationship with the father and guaranteed of a fractured relationship with the mother, then the children are at significant risk of psychological and emotional harm in the immediate future, and ongoing.

There is no evidence the children are at risk of physical harm whilst living with the father. The evidence of emotional or psychological risk primarily arises from their strained relationship with the mother. Whether that strained relationship has resulted from the mothers inability to adjust to the increasing independence of the children or, as the mother alleges, subtle undermining by the father, are important issues, but not ones that are determinative of the children's future relationships with each parent.

The father contends that with appropriate therapy and counselling and an acceptance by both parents, and the need to modify and improve their interactions with each other for the sake of the children's ongoing best interests, the Court would be satisfied that the Orders sought by the father form the preferable foundation for the children's relationship with both parents.

1. In the course of the cross-examination of the father it became clear that it was his case that, where there was an allegation of fact in the mother's case which he denied, the person making the allegation did so at the instigation of the mother and in collusion with her. Those persons so influenced by the mother included not only his family members but also seemingly independent persons such as teachers and police officers.

1. In an Outline of Case document submitted on behalf of the ICL, the issues which were, in the view of the ICL, relevant, to be considered are set out as follows:
   • (a) Whether the children are able to have a meaningful relationship with both parents;
   • (b) Whether there is a need for any therapeutic intervention;
   • (c) Family violence allegedly perpetrated by the father;
   • (d) Family violence allegedly perpetrated by the mother;
   • (e) The mental and emotional health of the children; and
   • (f) What parenting arrangements are in the best interests of the children?

1. I propose to deal with those significant disputed allegations of fact to which the parties have referred me in the order in which they are alleged to have occurred.

1. The mother deposed that there was an incident in 2007 when the father pushed her against the wall and held her there for several seconds with his hands around her throat. She deposed that the incident left bruising around her neck. She took photographs of the bruising which she stored on the shared home computer. She deposed some weeks later "I believe [the father] discovered the photos, when he said to me 'You are a sneaky bitch.' I knew what he was talking about and when I later looked for the photos on the computer they were gone." The mother did not tell anyone about this incident at the time.
2. The father denied the allegation. No one else was present.
3. Having regard to the findings that I have made in relation to the incidents in December 2012 or January 2013 and on ... August 2014, (where the mother alleged that the father had assaulted her in a similar manner), I find it is more likely than not that the father assaulted the mother on this occasion.

1. The paternal grandmother deposed that on one occasion in about mid-2007, the father delivered B to her home to mind her for the day. She was in the bathroom when the father arrived, and when she left the bathroom the father, who was standing outside the door, grabbed her by her neck with both hands and pushed her into the bedroom with his hands around her throat. She deposed that she was left with bruises at the base of her neck with grazes and broken skin on her neck.
2. She deposed that she took photographs of the injuries but later deleted them because they were an unpleasant reminder. Ms P deposes that she was told of this incident but at a later date.
3. There is a disturbing similarity between the nature of the assault on the mother referred to above and the assault alleged by the paternal grandmother.
4. Having regard to my findings about the assaults on the mother, I am more readily able to find that it is likely that the father assaulted the paternal grandmother in a similar manner.

1. The mother deposed that in 2012, when B was about seven years old, she came home from school one day and was having a "meltdown". The mother tried to calm her down. The father picked B up and threw her in the swimming pool, fully clothed, in her school uniform. The mother deposed that, when she spoke to the father later, he said "it was an effective circuit breaker".
2. In cross-examination, the father denied that he threw B in the pool and said that he held her hand and lowered her in.
3. I do not accept that evidence. The child was fully dressed. It is more likely that this was an occasion when the father responded in anger.
4. C when talking to her teacher in August 2019, referred to the father throwing B in the pool.
5. I accept that the incident occurred as the mother alleged.

Alleged assault on the mother in 2012/2013 at EF Town

1. The mother deposed to an incident over the summer holidays of 2012/2013, when she and the father were staying with Mr and Ms P at their beach house. Mr and Ms P are the father's aunt and uncle. D was aged about 11 months and was climbing over people's laps when she tumbled to the ground. Somebody picked her up. The mother deposed:

She was not hurt but in the presence of [Mr and Ms P] and our children [the father] came towards me and shoved me hard in the chest with the palm of both hands and swore at me. He then grabbed [D] and walked inside the house with a furious expression on his face.

1. In relation to this incident, Ms P deposed that the family stayed at the beach house owned by herself and her husband in about January 2013. She stated:

Their youngest child, [D] was climbing over our laps and tumbled off. [D] was not hurt and we each quickly got up off our chairs to pick her up. I observed [the father] push [the mother] hard in the chest on his way past her and grab [D]. He took [D] inside. [The father] was angry and was muttering under his breath. [The mother] went to another part of the house and I followed her. I observed that she was crying. She said to me "Kids have mishaps sometimes. [The father] doesn't understand. I wish he wouldn't get angry like this". I was shocked by [the father's] behaviour towards [the mother]. I did not say anything to [him]. While I had often known him to be grumpy and angry, it was the first time I had seen him behave in a violent manner towards [the mother].

1. In relation to the incident at EF Town, the father deposed:

In 2012 - 2014 we went up to [EF Town]. I vividly recall the incident which [Ms P] refers to that occurred in 2013. It appears that [D] rolled off the lounge where [the mother] had left her. When I heard her scream I came in and saw her on the ground. [The mother] was not there and neither was [Ms P], [the paternal grandmother] nor [Mr P]. I picked her up and consoled her and recall I made some passing comment like "Leaving [D] on the lounge is not the brightest thing to do". Certainly I was disappointed but I was not angry and I did not shout at anyone nor push anyone.

1. Both the mother and Ms P were cross-examined about this incident. At this time, Ms P and the father were in a close and loving relationship. Ms P was not demonstrated to have any motive for misrepresenting the event. I reject the father's assertion that Ms P and the mother colluded together to give false evidence.
2. I accept that the incident occurred as the mother and Ms P deposed and that the father assaulted the mother on that occasion.

1. Mr OO was married to the paternal grandmother for a period of time. Mr OO did not swear an affidavit or give evidence.
2. The paternal grandmother deposed:

In early January or February 2013, I was awoken late at night by [Mr OO] standing at our bedroom door saying "Look what your son has done to me". [Mr OO] was dishevelled and had a look of shock on his face. He had marks on his neck, was grazed and bleeding on his arms near the elbow and had gravel grazes down his legs. I cleaned [his] wounds, bandaged him and tried to console him. [Mr OO] said "I met [the father] at the [GH Hotel]. He assaulted me. I seriously thought he was going to kill me, he had this look of rage on his face, I have never seen anything like it before". [Mr OO] was shaking as he recounted what had happened. [Mr OO] was aged 58 at the time of the alleged assault, and [the father] was aged 36.

1. The assault was reported to the police and the father was charged with assault.
2. The paternal grandmother deposed that she and members of her family supported the father through the subsequent court proceedings.
3. In 2015, the paternal grandmother deposed the father said to her "you know, I really did go for [Mr OO.]"
4. Mr P who is a barrister and Queen's Counsel deposed:

In about 2013 [the father] was accused of assaulting his mother's then husband ... Those charges were heard in the Local Court and I obtained legal representation on behalf of [the father]. The Magistrate, having heard the case, dismissed the assault charges on the basis that he was not satisfied beyond a reasonable doubt that the incident occurred. [The father] pleaded guilty to a lesser charge of damaging [Mr OO's] car by kicking it and was placed on a good behaviour bond.

Sometime later when [the father] was at my house at [EF Town] and we were sitting around the table in the garden after dinner he said to me in a boastful way: "you know, I lied about my evidence concerning the assault. I did assault [Mr OO]."

1. Ms P deposed that her husband told her about the conversation with the father referred to above.
2. The father's version of these events is found at paragraphs 417 to 419 of his affidavit. He deposed:

In 2013 when I was facing criminal charges in respect of the incident with [Mr OO] [Mr P] provided me with a character reference to be tendered in court ...

...

The charges were dismissed.

We got into an altercation when [Mr OO] moved towards me when I asked him to apologise. [Mr OO] reported the matter to the police and charges were laid against me. To the best of my recollection, the assault charge was dismissed and I was given a 12-month bond, which I understand to be a section 10. It was an expensive exercise as a result of being thrown in the middle and following [my mother's] and [Mr OO's] separation. I covered [my mother's] legal fees in her family law proceedings with [Mr OO].

1. In cross-examination, Mr P said that he clearly remembered the conversation. The relationship between the father and Mr P remained friendly until the incident in December 2016. Other than the father's general assertion that all of the mother's witnesses have colluded with her against him, there is no objective reason for Mr P to have given false evidence.
2. I accept that the father told Mr P that he had lied in relation to the allegations of assault on Mr OO.

Alleged assault on the mother on ... August 2014

1. ... August is the father's birthday.
2. The mother deposed:

I had just fallen asleep when without warning, [the father] kicked me in the lower back so hard that I fell out of the bed on to the floor on to my back. [The father] reached down from the bed above me and put both hands around my neck and squeezed. He began speaking to me in a very quiet and controlled manner. I cannot remember what he was saying. I was so shocked and scared that I froze in fear and did not fight back. I thought he was going to kill me.

I do not know how long his hands were around my neck and squeezing: it could have been 30 seconds to a minute. [B] (who was 9 years old at the time) must have heard me hit the floor, she had been in bed, but I heard her walk down the hallway to our bedroom. It was so dark I do not think she could see what happening but when she walked in [the father] let go of me. Either [the father] or I told [B] that I had fallen out of bed and hurt myself. [B] went back to her room. If [B] had not walked into the room and interrupted [the father], I do not know what would have happened to me.

I went downstairs to the spare bedroom. I was extremely shocked and distressed. I looked in the mirror and saw that I already had bruises on my neck. [The father] followed me into the spare bedroom saying "I'm so sorry". I recall that I did take photos of the bruising either that day or the next, but have subsequently never been able to find the photographs.

1. The mother deposed that the next day, 20 August 2014, she visited the father's aunt, Ms P and told Ms P about the events of the night before.
2. Ms P deposed:

In about August 2014 I received a text from [the mother] saying words to the effect of "Can I come visit you today?" I recall thinking it was unusual for [the mother] to request as family arrangements were usually made some time in advance. I was concerned and said "Yes of course". [The mother] arrived at my [Suburb IJ] unit with [D], who played together with my granddaughter ... whom I was minding that day. [The mother] spoke to me generally. I then noticed she had a large scratch on her neck and bruising on her neck. I moved her hair out of the way and said "What is this?" [The mother] began to cry and said to me quietly "[The father] choked me last night. He pushed me out of bed, pinned me to the floor and started to choke me. I thought I was going to die. The only reason he stopped is because [B] must have heard a noise and got out of bed and came to the bedroom door. [The father] immediately got off me and told her I fell out of bed ...

1. Ms P deposed that she told the mother that she needed to see a counsellor and get support and advice. In cross-examination, Ms P said that the marks on the mother's neck were obvious.
2. Ms P was concerned by the father's behaviour and arranged for him to come to her unit for lunch. She deposed "We had always had a close relationship and I thought he would listen to me and stop acting in this way". Ms P deposed that she said to the father:

"I heard about what you did to [the mother] the other night. The way you are treating her is completely unacceptable and you should be ashamed of yourself". I recall that [the father] made various excuses for his behaviour and said to me words to the effect of "She annoys me. She is always tired. She falls asleep when I'm trying to talk to her ..." I said "She has three small children. She is up each day by 5.30am. Your behaviour is abusive and you must stop". We spoke for a considerable amount of time. [The father] completely downplayed the incident.

1. In cross-examination, Ms P said that the conversation with the father occurred about a week after the incident. She said that she and the father maintained a close relationship until the events of December 2016 which are discussed later in these reasons.
2. The mother consulted with a therapist, Dr VV who deposed:

I had my first individual session with [the mother] on 25 August 2014. On that date she reported to me a violent altercation with [the father]. She said to me words to the effect: "At night after [the father's] birthday dinner we were in bed and he wanted to have sex. He got angry and kicked me out of bed. He had a strangle hold on my neck." I noted at the time and recall clearly to this day that [the mother] had bruising evident around the neck area which was visible above her collar line. I was deeply concerned about her and discussed matters of safety.

1. Dr VV in cross-examination, said that the bruises on the mother's neck were clearly visible and that she saw them and made a note of them.
2. Mr P deposed:

I was close to [the father] and in the habit of having lunch with him on a reasonably frequent basis up until New Year's Eve 2016 ...

At one of these lunches with [the father] ... on ... August 2014, I recollect that [the father] said to me during the course of that lunch, "It was my birthday last night, and I wanted to have sex with [the mother] but she didn't want to. I got angry and kicked [her] out of bed." I said "... that was completely unacceptable and it should never happen again". He said "I am really ashamed, it won't happen again".

1. The father in his affidavit, at paragraph 437, stated "I deny the allegations of family violence asserted by [the mother]". He deposed that the mother had come downstairs to the unit where he was sleeping and climbed on top of him. He asked her to leave, "She refused to leave and I pushed her off me using my flat palms into her chest and shoulders. I deny ever strangling her or placing my hands around her neck".
2. In cross-examination he said that the mother had importuned him on ... August wanting to have sex with him and that he had kicked her out of bed. His evidence gave no explanation for the bruising around the mother's neck that was described by Ms P and Dr VV.
3. Dr K reported that the father told him that in 2014 he typically slept separately from the mother but that on occasion the mother made intimate approaches to him. The father said that, on one occasion, he "became frustrated and pushed her off." Dr K reported "He thought it likely that this was 'the strangulation thing'."
4. The father's explanation does not explain the physical evidence described by the mother and seen by Ms P and Dr VV. I accept the evidence of Dr VV of her observations of the mother's physical state and of the mother's complaint. I accept the evidence of Ms P as to the mother's contemporaneous complaint and her observations of the bruising. I accept that Ms P spoke to the father about the incident as she deposed.
5. The evidence of Mr P does not support the father's version that it was the mother who importuned him.
6. I do not accept the father's evidence that the only explanation for the evidence of Dr VV and Ms P is that they colluded against him to support the mother. That scenario requires the mother to have planned, in August 2014, to falsify evidence to support a case that might, at some future time, arise. That scenario is less likely than that the father assaulted the mother.
7. I find that the father assaulted the mother on ... August 2014 as she alleged.

1. The mother deposed that, at the end of September 2014, she and the father were discussing their separation late at night. She stated:

He was harassing and badgering me saying "I won't let you break up the family". I tried to leave the room and he grabbed both of my wrists and held on to me tightly. The strangulation incident was still present in my mind and I felt terrified knowing what he was capable of. Somehow I broke free of him and ran out of the house. [He] followed me onto the driveway saying "Please don't leave me. Please don't break up our family".

1. The mother deposed that she telephoned Ms P and told her what had happened and that Ms P urged her not to contact the police. The mother stayed away from the house that night with a friend.
2. Ms P deposed:

Some weeks after the discussion with [the mother] in August 2014, in September or early October 2014, I was alone at [EF Town] and the landline rang at about midnight. It was [the mother] on the phone. [The mother] was crying heavily and was unable to speak properly. She sounded extremely distressed. She said to me "[The father] has been badgering me all night and won't let me leave the room. He grabbed both my wrists and held on to me so couldn't get away. I was so scared of him. I eventually got away from him and left the house. I had driven a few kilometres away and I don't know what to do so I am calling you. My counsellor told me after he choked me that if another incident occurs I must go straight to the Police." I spoke with [the mother] for a few minutes and I counselled her not to call the Police. I regret that advice very much.

1. Ms P deposed that following this incident she spoke with the father a few days later. In cross-examination she said that the conversation took place on the telephone.

I said to him "[the mother] called me the other night. Why are you doing this to her? Can you imagine someone twice your weight and size coming at you like that?" [The father] said "It was nothing. She has totally blown this out of proportion. I was trying to talk to her and she wouldn't listen. She overacted as usual". I said "She was terrified. She had fled the house. You have no right to treat her this way. It is unacceptable. Put yourself in her shoes and imagine how fearful and trapped she felt." I observed that [the father] was indifferent. He said to me "She made a big deal out of nothing. She wasn't there in the morning and I had to explain to the kids why mummy wasn't at breakfast. I had to make-up a story to tell them." He sounded annoyed by [the mother's] reaction and was againcompletely [sic] dismissive.

1. In cross-examination, Ms P said that the mother told her that her counsellor had urged her to go to the police. Ms P said that she was concerned about the repercussions for the father's career if a report were made to police.
2. Dr VV deposed:

On 1 October 2014 I received a phone call form [sic] [the mother] describing another unsafe escalation where she reported [the father] grabbing her arm.

On 2 October 2014 I conducted a session with [the mother]. She said to me words to the effect; "Since [the father's] return I have raised the topic of separation with him. There was another angry escalation about me telling him I wanted to leave the marriage and he grabbed my arm". I recall her arm showing bruises although I did not put this in my notes and hence acknowledge that this memory is not as certain as the neck bruising that I documented at the time. During this session we focused on the priority of a six point safety plan for [the mother], which included my advice that she arrange a domestic violence meeting with [Suburb Z] police.

1. I accept the evidence of the mother, Ms P and Dr VV.
2. I accept that the father assaulted the mother on this occasion causing her to be fearful for her safety.

Alleged assault on the paternal grandmother in May 2015

1. The paternal grandmother deposed that in May 2015, she was accompanied by the father and C to attend her brother's funeral. She alleged that after she tried to give him directions, the father pulled over on the side of the road asked her to get out of the car. When she did not do so, he repeatedly punched her in her shoulder and upper body. She deposed that C was in the back seat and visibly afraid.
2. The paternal grandmother said that the father continued to drive recklessly after this incident. She deposed:

After about 30 minutes later [sic], he turned inland and followed a winding dirt road. At this point he was driving too fast for the road conditions. I observed the speedometer nearing 80km/h. While speeding along this winding dirt road, he had his phone in his hand and was sending text messages at the same time. On 2 occasions, he almost veered off the road because he was not focussing on his driving and was speeding. It suddenly occurred to me that [C] may no longer be wearing her seat belt (having unbuckled it earlier) and so I said "Please slow down and put your phone away. You're putting us all in danger including your own daughter. Her belt isn't on!" He did not stop or slow down, he continued to text with one hand until he was finished.

1. The father denied these allegations as put by the paternal grandmother.
2. The only evidence in relation to this event is that of the paternal grandmother and of the father. Having regard to my findings about the father's behaviour when thwarted, and his expressed views of the paternal grandmother, I am more able to conclude that it is likely that the event occurred as she described it.

1. The mother deposed that on the morning of 29 July 2016, C and B were having a disagreement in the bathroom. The mother went into the bathroom and saw that C had a small wet patch on her head. C said "B tipped water on my head". B said "I passed her the cup and she accidently got wet". The mother said to them "OK you two, stop arguing, C we need to get ready for music". The father had been in bed and heard the argument. He got out of bed and came into the bathroom with a furious look on his face. The mother said that she had not been in the bathroom for more than about two minutes before he came storming in.
2. The mother deposed that the father took B into the bedroom and stood her in the corner and screamed at her "You are lying! You are a liar, don't lie to me". The mother deposed that B was cowering in the corner, between the wardrobe and the window, with the father screaming at her. The mother said that after a few minutes, he seemed to calm down and she took C to drop her off for her music lesson and left B at home with the father. She deposed:

I returned to the former matrimonial home about 20 minutes later. [B] was in the backyard. She was dressed in her sports uniform ready for sports day. Her uniform, socks and shoes were soaking wet and she was shivering. It was a cold morning. I said to her "What happened?" She said "Dad soaked me with the hose". [The father] came out and said to me in a stern voice "Don't get involved". [The father] would not let me go to [B] to comfort her or to speak to her further. ... I heard [B] say "I need to get my wet clothes off. Can I have a shower to get warm?" [The father] said "No you can't. Get your school uniform on." It was a sports day and [B] was meant to be wearing her sports uniform but she did not have a spare sports uniform. She did get changed but when she came out of her room her hair was still drenched.

1. The mother deposed that the father said to B "Get in the car". She wanted to comfort B but was too afraid of the father's reaction and the father drove B to school.
2. Ms P deposed that the mother told her about the incident shortly after.
3. I accept that there is discrepancy between the mother and B's teacher about the date on which the incident occurred. The mother's evidence is that it happened on 29 July. Ms WW's notes record that it happened on 1 August. It is not in dispute that the incident occurred and the discrepancy is not relevant to my determination of what happened. There is also a small discrepancy between Ms WW's affidavit evidence, where she stated that B's uniform was wet, and her notes which state that B's hair was wet. When Ms WW's affidavit was prepared, she did not have access to her notes which had been retained as part of the school records.
4. Ms WW was B's class teacher at the time. She deposed that on the morning of 29 July 2016, some of the female students came to her and said "B is upset and wet." She immediately went to find B. She stated:

I observed that she was wet (even her hair), looked dishevelled, had been crying and appeared generally low and worried. I do not now recall how I got [B] dry, however it was a priority given it was a winter morning and it was too cold for [B] to be standing around wet.

Once [B] was dry and warm, [B] was quite worried about telling me what had happened. She said to me "I don't want my dad to be cranky at me for telling". I assured that it was okay to tell me what happened to her. I comforted her and we had a talk about how she had gotten so wet. [B] said to me "Me and my sister were cleaning our teeth and started fighting. I got some water on my sister and she complained to Dad and he took me outside turned the hose on and hosed me. Then he made me travel to school wet."

1. In notes produced by B's school, Ms WW recorded that on 1 August, B came to school "Shaking and wet". Ms WW noted that she spoke to B just before recess as B was very upset. Ms WW noted:

She said

- wet [C] with water from brushing her teeth

- She told her mum what happened later dad called her into his room called her a horrible liar and things about how horrible and mean she was

- He said because she is so horrible and such a liar they were sending her to boarding school

- He then took her out the back and turned the hose on to her as payback for her wetting [C]

1. Ms WW deposed that the children in her class kept a journal in which they could write about anything without getting into trouble and B agreed to write in her journal about what had happened. On the instructions of the principal, Ms WW reported the incident to the Child Wellbeing Unit of the Department of Family and Community Services ("DFCS"). The report to DFCS describes B as "upset and shaking".
2. In relation to this incident the father deposed that he heard B and C having an argument for about 20 minutes. He deposed that the mother was screaming at the girls and out of control. He observed that C's head was wet. He asked B what had happened and she denied any wrongdoing. C said words to the effect "[B] poured water on me". The father deposed:

I took [B] outside on the back deck and sprayed her with a little bit of water literally for about 2 seconds. I said to [B] words to the effect:

"How did that feel?"

[B] responded with words to the effect:

"Not good"

I then said to [B] words to the effect

"And what did you learn".

[B] said words to the effect:

"That it's not nice to spray water on people and not to lie".

[B] then went inside and got changed into a dry school uniform. I drove [C] and [B] to school that morning and we laughed and chatted on our way. It was drizzling on the way to school and it is possible [B] may have had a few drops on her after she let [sic] my car however she was not wet when she left me. When [B] came home from school, she was happy and we had a lovely evening. I recall helping her with her homework, brushing her hair and chatting about her day.

1. The father said that B laughed about the incident and that it had become a family joke. He denied that, when she was dropped at school, she was upset.
2. The father maintained his position throughout the cross-examination on that incident by senior counsel for the mother. He said that he not even turned the tap on but only flicked B with the residual water in the hose.
3. However, when cross-examined by counsel for the ICL he conceded that he had turned the tap on and had hosed B from about three meters away.
4. I do not accept the father's version of this event. If B was not soaked as the mother alleged, but only "sprayed her with a little bit of water", there is no explanation for the fact that she needed to change her sports uniform.
5. I accept the evidence of Ms WW that B's hair was wet.
6. The father said that B laughed about the incident and that it had become a family joke. He denied that, when she was dropped at school, she was upset. I do not accept that evidence.
7. The father acknowledged in cross-examination that had the incident occurred as contained in the account of the teacher, it would have been abusive behaviour towards B.
8. I accept that the incident occurred as the mother alleged.
9. I accept that B was distressed and shaking as Ms WW observed.

1. This incident was the last occasion on which the father had any contact with his uncle and aunt, Mr and Ms P.
2. The father deposed that, at the end of 2016, he and the girls were staying with Mr and Ms P at their beach house. They were sleeping in a tent. He deposed:

...it was early in the morning. I was laying in the tent with [D] and [C] reading them morning stories and [B] wanted to make pancakes for everyone when they woke up. [Mr P] stormed into out tent all aggressive and abusive and said "I want you to immediately pack your things and leave as soon as possible". He was so violent and abrupt that [C] and [D] started crying.

[Mr P] then walked out of the tent before I could say anything. Some moments later B ran into the tent very distressed and crying. She said "Dad, I was I the kitchen making everyone pancakes for when they woke up and [Mr P] came in and started swearing at me. His face was read [sic] and really scary. He told me to get out of his kitchen and that we had to go. What is wrong with him and why is he being so nasty".

1. The father deposed that there was then an ugly exchange of words between him and Mr P where Mr P swore at him and the father said the whole episode was caused by the paternal grandmother (who was not there) having incited it.
2. Ms P deposed that the father and the children came to the beach and that she understood they would stay for three days and that the father told her he was taking the girls back to see their mother on New Year's Eve. On the morning of 31 December 2016, B was making pancakes. Ms P asked her if they were packing to head back and see their mother. B said "No, dad said we are staying". Mr P went out to the tent to speak to the father. When he returned he said to B "I spoke to dad. You are heading back to Sydney today" and B said "ok that's great".
3. Ms P deposed that the father "burst into the kitchen", told the children to pack and shouted at Mr P. She deposed that the father "was ranting and carrying on like a crazy person".
4. Ms P deposed that B and C said to her "We miss mum and we are going to see her again today". They kissed and hugged goodbye.
5. Ms P deposed "From my observations, in [the father's] eyes, you are either with him or against him.
6. Mr P deposed that, on New Year's Eve, at his wife's request, he spoke to the father and suggested it was time he left as there had been no indication beforehand that he wished to extend the visit beyond that time. He deposed that the father "became incensed", accused him of shouting at B, packed and left.
7. In cross-examination, Mr P said that when the father and the children left he gave the father a hug and said words to the effect of "Don't build this up. Don't build this up into something it's not. I don't want to turn this into something that is going to affect our ongoing relationship".
8. I do not accept the father's version of that event. Neither Mr nor Ms P had any reason to fabricate their evidence or to give an account that was deliberately inaccurate. It is more likely that the father became annoyed at what he perceived to be their rejection of him.
9. There has been no contact by the father with them since that day.

Alleged pushing incident between the mother and C at school

1. The father's allegations in relation to this incident have been dealt with in detail in the earlier narrative.
2. The father was not present when the alleged incident occurred.
3. I accept that the incident did not occur and I prefer the evidence of the school record over the father's version.
4. It is, however, significant that the father does not accept that the school records are accurate and regards this as an example of the conspiracy between the mother and the teachers to give false evidence.

Contact between the children and the maternal grandparents

1. The children did not see their maternal grandparents between November (for C and D) or December (for B) 2017 and the making of orders for the children to live with their mother.
2. On 28 January 2018, the maternal grandmother emailed the father asking to spend time with the children.
3. On D's sixth birthday, ... February 2018, the maternal grandparents attempted to contact D by various means including texting the father, calling the father and calling B. The father responded saying "We are busy. Call the home phone". The maternal grandmother called the home phone after school and nobody picked up the phone. The father sent a text message to the maternal grandmother at 10.15pm which stated words to the effect of "I conveyed your birthday wishes to D this morning."
4. Also on ... February 2018, the solicitors for the father wrote to the solicitors for the mother notifying her that all communication from her or any member of her family was to be sent through his lawyers.
5. On 5 February 2018, the maternal grandparents emailed the father's solicitors asking to spend time with the children.
6. On 10 February 2018, the maternal grandparents again emailed the father's solicitors asking for a response or an acknowledgment in relation to spending time with the children.
7. They sent a further email on 19 February 2018.
8. On 19 February 2018, two emails were sent by the father's solicitors to the maternal grandparents. The first email stated that the father's solicitors did not have instructions to respond and suggested that correspondence should occur through legal practitioners. The second email also requested that correspondence occur through legal practitioners. The maternal grandparents were not represented by solicitors at that time.
9. On 5 February 2018, the maternal grandmother sent an email to the father's solicitors stating:

We had been communicating with [the father] to have access to our grand daughters [sic]. However I gather he has now said he won't communicate directly with any of the family.

Could you please communicate to him that we would like to collect the girls and take them out for a couple of hours. We have not seen [C] or [D] since November.

Could you please acknowledge receipt of this email. We also sent you an email on ... February but have received no response. Could you acknowledge receipt of that email also.

1. On 10 February 2018, the maternal grandmother sent a further email to the father's solicitors stating:

We still have not had a response to or acknowledgement of our previous correspondence re access to our grand daughters [sic].

We had emailed [the father] on 28 January after the girls had not attended various family functions over December and January. He gave us his new mobile number to make arrangements. So we sent a text to which he replied that he would get back to us.

We then tried various ways of contacting [D] for her birthday on ... February. [The father] finally sent a text at 10.15pm to say he had conveyed our birthday wishes to [D] that morning.

Interesting that very day we heard that all communication was now to be through you.

So now we are once again requesting access to our grand daughters [sic]. We have not seen [C] and [D] since November and B since 29 December. Our normal contact had been fortnightly.

Please acknowledge receipt of this email and contact us regarding access to the girls.

1. On 19 February 2018, the maternal grandparents sent an email to the father's solicitors stating:

In response to our phone call this morning, we are just trying to see our grandchildren and it should not require a lawyer.

It is your client's choice to use a lawyer for all his communication but we are not required to do the same.

I am resending the email from last week as it contains all relevant information.

Please acknowledge receipt of this communication.

1. Later, on the same day the father's solicitors responded:

We confirm receipt of your correspondence and advise we do not currently hold instructions to respond.

In circumstances where [the maternal grandmother] has filed an affidavit in support of the mother's Initiating Application, we are of the view it is not appropriate to communicate directly with you.

It is a matter for you if you apply to join the matter as parties to the proceedings, alternatively we suggest all correspondence occur through legal practitioners.

1. There was no contact between the maternal grandparents and the children until the children were returned to the care of the mother in March 2018.

1. The mother took B on a holiday to Queensland in January 2018. C and D did not go, and were not spending time with the mother at that point.
2. B was to have holiday time with the father from 12 January 2018 by agreement.
3. On 11 January 2018, B, while riding an electric scooter, had an accident and broke her leg.
4. On 11 January 2018 the records kept by the NSW Police indicate that the father telephoned the police. The record states:

...stated that his estranged wife... had taken his eldest daughter [B] to QLD without his knowledge or consent. [B] had since broken her femur and [the mother] would not tell him which hospital [B] was in, and how bad her injury was. [The father] called CPS to ask for police assistance in locating the whereabouts of his daughter. The two younger daughters were still with [him] in [Suburb J]. [The father] stated he received a call from [B] saying she needed his help and that she wanted him to come to the hospital to get her. [The father] then spoke with [the mother] who apparently refused to tell him where they were and hung up on him. [The father] also stated that [the mother] started shouting down the phone at him for him to stop abusing her. [The father] stated he was not abusing her and she was creating a false reaction, something she had been doing a lot recently to manipulate those around her into thinking he is abusing her.

1. The police made enquiries and then spoke again with the father about the situation in the light of further information. The police noted that the father had been informed by the mother that she was taking B to Queensland by email on the 6th of January 2011, an email to which he did not reply or indicate that he was unhappy with the arrangement. The police formed the view that the father had agreed that B could spend time with her mother until the 11th of January 2018. The police also ascertained that the mother had informed him at which hospital B was staying.
2. On 11 January 2018, at 3.13 pm, the mother sent a message to the father "B is ok but she's had an accident and broken her leg. She needs to stay in hospital tonight and have surgery in the morning. She would like to talk to you, I will get her to call."
3. At 4.09 pm on 11 January 2018, the father responded:

I have asked you multiple times now what hospital my daughter is in with a broken leg as a result of you putting her on an electric scooter. You continue to play games in front of my daughter who is seriously injured as you insinuate a fictitouse [sic] conversation for your audience. I have asked you a straight forward question of where my daughter is, each time you have said that you do not have to tell me where she is and that we cannot come and see her, at her request where she has asked 6 times for me and her sisters to come and help her. You are wrong on both accounts under the family law act [sic]. Immediately tell me what hospital my daughter is in so that we can be by her side and make sure she is safe ... as she has asked. If not, I shall have the police do a welfare check in order for us to know where [B] is as a conseuqnce [sic] of your continued refusal to do so and continued highly disturbing plus concerning irrational behaviour.

[B] is [AA Hospital]

[telephone number]

She is settled and fine, she's not in pain. There is 1 chair in the room and I will be staying with her day and night.

Her surgery is 8am tomorrow, I have not seen the Surgeon yet. At this stage they have said she can fly back to Sydney on Sunday.

Given your past and recent behaviour your presence is a threat to me. I have made the staff aware of our circumstances.

I will text you when there is any news and you can call the ward on the phone number above for updates. There is no need for you to call [B] directly, it only upsets her and I'm sure you don't want her to be distressed.

Nothing will happen now until tomorrow morning.

As a result of the circumstances of your continued behaviour it gives no comfort knowing you are by her side with her serious injuries from you putting a 12 year old on an electric scooter. Please have [B] call me a little later where she can freely talk without your presence and distress of the disturbing things you continue to do. Please also give [B] her phone so that she can call whenever she wants to.

Have [B] call me now please and leave the room so she can freely speak to me.

1. The mother responded by messaging to the father the link which provided updated patient status and visitor information to patients at the AA Hospital.
2. At 9.37 pm the father messaged:

Link shows nothing. You have not had [B] call me as requested and I have had to call the hospital to speak with her. She said she has been saying since the accident that she wants me there to look after things and her. You continue to ignore her feelings and rights. She said you did not say that I texted you to have her call me and that you had not given her her phone so she can call me when she wants. You did not inform me immediately when the accident happen [sic] (you did so many hours after) and I still do not know the circumstances, how, why she was on a scooter at 12 and details plus extent of her injuries. You did not tell me when asked what hospital she is in and prevented us from being able to book flights to see her before her operation and to be by her side as she has requested now countless times. This, as with all your other behaviour is noted. I have been unable to reach the surgeon. What have they said of her injuries, what are they doing to her leg in the operation and how long will the operation will [sic] be? What have they said her recovery will be? In having to do a welfare check due to you not telling me anything, I note the police have phoned you to tell you your obligation to answer these questions related to my child and to advise without delay or further use the situation to emotionally torment, manipulate and abuse [B], her sisters and me. Please answer what I have asked instead of continuing to ignore my and [B's] rights by not informing me of the details I have asked.

[B] has been my priority this afternoon. By the time I saw your message you were talking to her.

I have not spoken to the surgeon yet. Will see him in the morning. This is what I know now.

She has a small fracture of the femur near the growth plate of her knee. They will put in a wire or a screw to stabilise it. She will have crutches.

First half of your text is nonsense and your continued games, you have had all day to let me know, which is and has been a priority for [B] and your responsibility. Did you advise others before me? Have you given others the details I have asked and precluded me? You continue to ignore what is said and you have not answered what I have asked in my text at a time of a serious situation that directly involves my childs [sic] physical, emotional and mental wellbeing.

1. The next morning at 7.15 am, the mother replied:

B has just woken up. She had a good sleep from 2am - 6am.

Soon they are going to put Betadine on her leg.

Surgery is still scheduled for 8am here, 9am your time.

The surgeon has just left. She will have crossing wires with the ends protruding so they can be removed in six weeks.

Six weeks on crutches non weight bearing. A splint not a cast.

Email me the flight details [B] is arriving back into Sydney tomorrow and we will come and pick her up at the airport as I want her home ASAP.

I will organise that today and let you know. I have to get a medical certificate from the surgeon first.

To avoid the disgusting situation of me having to deal with the hospital to find out the details of what is going on with my daughter; either send or have a copy sent to me today of her admission report so I can see what has happened to her and how - as you have still not told me the details of what went on and occurred to place my daughter in hospital. Tomorrow, have the hospital email me her discharge papers and have a copy for me printed out to give me when we pick [B] up from the airport.

[B] in theatre now. Will let you know when I hear anything

Like you told me as her father's snippets (essentially nothing many hours after) after telling others full details.

[B] is back on the ward but still asleep. It all went well, no vomiting.

Is this the company you used, [website name] where [B] was injured; and with [B's] level of coordination, observation and concentration (that sees her have accidents on pushbikes and kids push scooters) why did you think it even remotely appropriate to put her on a powered scooter by herself with the obviouse [sic] consequences?

The surgeon came around. It went well. 2 crossing wires. He will be back to see her tomorrow morning.

She is asleep but will see a physio this afternoon.

You have not answered my previouse [sic] texts and details required.

You did not advise that [B] has woken up from surgery as asked and an obviouse [sic] priority (beyond your advising of anyone else) as we are waiting to hear news in your continued exclusion and ignoring of informing us of everything going on with my daughter; Who has wanted me there since the accident, which your belligerent behaviour has prevented. As a consequence I have, again, had to speak to the hospital to get details of what is occurring and the status of my daughter. You have purposely not given details and given snippets of information to try and torment for your manipulation and games in your shown continued disrespect of [B], her wishes and rights plus that of mine as her father and her sister's [sic]. You still refuse to give any details of what happened to her, the circumstances and how as with other important items requested of you multiple times now since being informed of [B's] [sic] hospitalization (where you gave no details and refused to tell us what hospital she is in) many hours after she sustained her injuries and you had informed many others before me as her father and [B's] [sic] requests for you to do so the moment she was injured. Your games that prevented us from being there for her. I now know from the hospital that she will be flying back tomorrow. As requested earlier today; let us know the flight details so we can pick her up from the airport and bring her home. Also ensure that you have copies of the admission and discharge documents plus xrays [sic] to give me for her post-operative care.

I have arranged for the discharge summary to be emailed to you. If you want admission paperwork you need to contact the hospital. X-rays will be emailed to the Dr in Sydney, they don't produce hard copies.

The surgeon has gone from surgery to clinic. Once he has finished they will email me a medical certificate and I will rebook a flight home and let you know.

[B] is not feeling well. I let her know to call you when she is ready. She is with the physio now.

If she was well enough to go to the physio she was well enough for you to give her the phone to call us so we could talk to her after the operation as she asked us to and we promised. But as per your continued behaviour you didn't do what you should have and prevented that in your abuse and neglect of your disgusting manipulation and games.

I told her you called. She has her phone. She hasn't been feeling well. She just had something to eat and drink and is starting to feel a little better.

Nothing you say has any merit or integrity as you have shown in all you do that is disingenuous with your attempts to use whoever you can. Everything you say and do is to transparently try and manipulate and play games where you show no respect for what is important and healthy in your destructive attempts to control and torment in your passive abuse and neglect. All documented, detailed and noted.

1. At 8.28 pm the mother texted to the father the flight details and arrival time. At 11.02 am on Saturday 13 January 2018, the mother sent a message to the father:

[B] slept in.

She saw the physio and practiced on the stairs.

She's had some breakfast.

I know the details well in advance of the piecmeal [sic] delayed snippets you send to try and childishly control and torment in your manipulation, abuse and neglect. What you have done to [B] and how you have used her with such disrespect and no regard for her feelings and requests is a continuation of your now escalated behaviour that is severe and alarming.

1. At 3.37 pm the mother messaged "We're on the plane" and at 5.01 pm "We've landed but we will be the last ones off the plane."
2. The mother deposed:

I telephoned [the father] from the hospital. I was so frightened about calling him that I asked a social worker to sit with me. [The father] screamed at me over the telephone. I tried to talk to him and he screamed "Be quiet!" And then he said to me "I am warning you ..." I said "what are you warning me about?" He did not answer. I felt extremely threatened and terrified after this conversation.

[The father] came to the airport to collect [B] on our return to Sydney on 13 January 2018. He arrived with [Mr EE]. I arranged for [Ms SS] to collect me. In [B's] presence [the father] said to me aggressively "Do you know what you have done?" To [Ms SS] he said "Why are you here? Do you realise what you are involved in? You don't know anything, you don't know any facts, your support is incredulous to say the least". [Ms SS] explained that she had come to collect me. He said to me: "I expected the police to come and meet you off the plane. You have been reported by a mandatory reporter. Do you realise you have ruined her start to high school?" The conversation took place in front of [B], who remained completely silent. I tried to give a medical handover to [the father], by handing over [B's] medication and explain what care she required. He would not listen to me and said "I've already spoken to the hospital, I know it all".

On 13 January 2018 I arrived at Sydney Domestic Airport to collect [the mother] ... The flight arrived and [the mother] texted to say they would be the last people off the plane. When they came out, a flight attendant was wheeling the wheelchair and [the mother] was walking bent alongside, holding up [B's] leg. I went over to help and offered to wheel the wheelchair so that [the mother] could keep holding [B's] leg.

We went down the lift to the baggage area and [the father] approached us, along with another man, as we exited the security door. I stepped aside from the wheelchair. [The father] said "[Mr EE] can you come and wheel the wheelchair". He then said to [the mother] "Give me the discharge papers!" [The mother] handed him the discharge papers and medication and attempted to explain which medication was which. [The father] dismissed her and said "I have spoken directly to the hospital". He said to me "Why are you here?" and I replied "I am picking up [the mother]". [The father] said "Where's [B's] bag?" [The mother] said "My clothes and B's clothes are mixed up in one suitcase since she was in hospital. [B] has everything she needs in her backpack." [The father] said "No, I want you to give B her suitcase and her other clothes". I said to [the mother] "Do you think you can sort the two bags out at the carousel?" She replied "Yes".

We went over to the baggage carousel and put the two bags on the ground. As [the mother] was knelt over the two open suitcases trying to sort the clothes, [the father] came and stood over her. I stood nearby and [Mr EE] stood with B approximately 10-15 metres away. [The father] said to me again "Sorry, why are you here?" Again I responded "I am picking up [the mother]" he said "No, I can pick up my daughter, why are YOU here". and I again said "I am here to pick up [the mother], not [B]". He said "Do you realise what you are involved in?" I shrugged and said "Yes". He said "Don't give me that, you don't know anything. You don't know any facts". I replied again 'I am just here to pick up [the mother]' and he said 'well your support is incredulous'. I felt intimidated by his tone of voice.

[The father] then started speaking to [the mother] in an aggressive and intimidating way (he was standing and she was still kneeling at the suitcases) saying that "you've ruined [B's] holidays, you've ruined plans for the girls holidays, you've ruined B's start to school." He also said "I've told the police and they're onto you". When [the father] was speaking in this way, I heard [Mr EE] exclaim "[the father's name]". [The father] glanced across to [Mr EE] but ignored him and continued. [B] was still with [Mr EE] at this stage. I could see that [the mother] was upset as she was trying to sort the clothes. I said to [the mother] "It's ok". [The father] again turned to me and said aggressively 'No, don't tell her what's ok and what's not, you're not even involved in the situation". Once [the mother] had sorted out the clothes, she went over to [B] and kissed her goodbye. I stood back. We then left the airport together. [The mother] was visibly shaken and upset by the experience ...

1. The father, in his trial affidavit, gave no evidence about this incident.
2. Mr EE, the person who accompanied the father to the airport, sat in the back of the Court whilst Ms SS was cross-examined. Mr EE did not give evidence.
3. I accept the version of that event given by the mother and Ms SS.
4. Throughout this incident, the mother attempted to communicate calmly with the father. His responses were inflammatory and bullying.
5. The behaviour of the father at the airport was unacceptable and particularly so in circumstances where B was present.
6. B's general practitioner referred her to Dr TT, an orthopaedic surgeon in Sydney. The father attended the appointment with B as by that time she was living with him. The first appointment with Dr TT was on about 7 February 2018. The mother deposed that on 12 February 2018, she attended at Dr TT's surgery to provide him with a disc of X-rays which she had arranged to be sent to the general practitioner from the hospital in Queensland. The mother was told by a staff member that they were unable to provide her with any information about B as the father had instructed them not to provide information.
7. The following day the mother contacted the practice manager at Dr TT's practice and was told that she needed to prove that there were no court orders in existence if she wished to be kept informed about B's progress. The mother sent a number of emails to Dr TT's offices.
8. On 13th February 2018 the mother wrote to Dr TT informing him that there were no court orders in place, that she and the father had joint parental responsibility for the children and stating:

Your practice management informed me the instructions from [the father] were information regarding [B] were to be communicated to me via his lawyer. This step is unnecessary. While it is true the police have obtained an ADVO on my behalf against [the father], the ADVO does not prevent communication between [the father] and I that is civil and focused on the practicalities of caring for our daughters.

If you are still unsure about communicating with me on the matters pertaining to my daughter, then please seek legal advice.

1. Also in her email the mother asked for details of the future treatment plan for B and for confirmation that Dr TT had received the discharge summary from the AA Hospital. She also advised Dr TT that she had the disk of X-rays and scans from the AA Hospital which she was happy to provide.
2. On 15th February 2018 Dr TT's practice manager wrote to the mother stating:

Thank you for your note, emailed on 13 February, which [Dr TT] has reviewed.

[Dr TT] has advised that of course he is happy to let you know what is happening with your daughter [B]. Please send written permission from [the father] and then [Dr TT] will let you know what is planned for [B].

[Dr TT] has advised that until we receive written permission from [the father], no further correspondence will be answered.

1. The mother, then acting for herself, wrote to the father's solicitors asking for an explanation.
2. On 16 February 2018, a letter was written to the mother referring to her "behaviour" in Dr TT's office. The mother deposed that she had no idea what behaviour was referred to.
3. B underwent surgery on 16 February 2018. The mother was not present and informed only on that day.
4. The mother complained to the Health Care Complaints Commission ("HCCC") and on 28 March 2018, received a letter from Dr TT directed towards the HCCC which stated, inter alia, "[The father] asked me not to provide any information about [B] to her mother as she was entitled to information only through her lawyer."

1. The mother deposed that on 23 March 2018, the year 7 girls at B's school were vaccinated for Human Papilloma Virus ("HPV"). B said to the mother "I didn't get vaccinated. Dad told me you can't get me vaccinated without his permission. He showed me a documentary about a girl whose arms were paralysed after getting a vaccination." The father did not tell the mother that he had refused permission for B to be vaccinated for HPV.

17 March 2018 - C running away and hospitalisation

1. On 19 March 2018, the mother emailed the father:

As I believe [Ms EE] has informed you, C was admitted to [L Hospital] on Saturday night as she was threatening to continue to run away. She is safe and calm. Today she'll be assessed by [Child & Adolescent Mental Health Service].

I understand you have received information directly from the hospital staff, I will let you know when I have further information.

[B] and [D] are both at school and are adjusting well to the changes.

1. The father's response was in a rather different tone:

If you were a person of truth that respected the girls and their feelings then your email would have merit ...

Sadly it does not in your never ending twisting and manipulation of your gaslighting with your lies as you continue being a destructive person with no care or concern for others. Whilst I have, throughout, made every effort to ask you to stop your unusual behaviour. While trying to make the girls see you, despite them unfortunately not wanting to because of your alienation and denegration [sic] abuse denigration of them in your strange behaviour to attack me; That constantly tries to use the girls and me with no respect or consciousness for anyones [sic] feelings in your escapism victim games that victimises the girls and me.

You could not just move on with your life and give the girls and me peace from your vindettas [sic] and turmoil. Your agenda to destroy people and their lives for money and your need to control is a great shame.

A second daughter now in hospital because of your behaviour, who is dealing with the same emotional and psychological abuse you perpetrated on B when you had her in hospital.

You have never once shown any respect to what the girls feel and want and why. You try to silence, blackwall and shut them down with your strange behaviour to silence the truth of how you continue to treat them in your gaslighting abuse to destroy what is healthy to and for the girls. Who are people!

Your corespondence [sic] continues to have no integrity or truth behind it and I am sorry for this person you have become as you project your behaviour onto everyone who knows what is unfortunately going on with you. Sadly you don't and beleive [sic] you are perfect, you need to address nothing of your behaviour and the girls suffer as a consequence.

1. On 21 March 2018, the mother's solicitors wrote to the father's solicitors, noting that the father had breached the orders of Senior Registrar Campbell by communicating with C on 17 March 2018, and communicating with B by telephone on two occasions. The letter stated:

Our client does not, under any circumstances, consent to your client attending the hospital to visit [C].

The Orders are abundantly clear. Your client is not to communicate with the children or be within 50 meters of them other than under the supervision of a professional supervision agency, at the times provided for in the Orders. Further, it has been made abundantly clear to our client over the course of the last few days that any communications and contact between the children and your client, or his agents, are contrary to the interests of the children at this critical point in time.

1. On 21 March 2018, the mother, C and a social worker had a meeting at the hospital. The notes from the social worker report "C was present, engaged and receptive but was NEVER swayed from her firmly held belief that Mum is 'unsafe, neglectful, abusive and lies, convincing every one of her lies'." The social worker noted that C was unable to nominate any reason for thinking these things, and the mother was "receptive and caring and responsive to C throughout, again never offering any negative comment about C's father."
2. C later told her mother, as has been recorded earlier in these reasons, that her father encouraged her to run away.

1. The father alleged that the mother had deliberately failed to deliver to him a Fathers' Day card which B had handmade. The mother's evidence was that the children had placed their gifts and cards in a box and she organised for the box to be delivered to the father's solicitor. On 19 October 2018, B sent an email to her father in which she stated "Here is a picture of the card I wrote you for your birthday and put in the "box Mum was taking to you" obviously you didn't get it found it hidden under some papers in my room so here it is".
2. The father's interpretation of that event is that the mother, maliciously, removed B's handmade card from the box and hid it in B's room. It is more likely that B lost the card and forgot to put it in the box.
3. The father's attitude is typical of his insistence that any incident, however minor, must be interpreted in such a way as to place the mother at fault.

1. Subsequent to breaking her leg in January 2018, B required follow up surgery. On 25 September 2018, the mother's solicitors wrote to the father's solicitor stating, inter alia, that B had attended on Dr KL on 24 September 2018 and that she required surgery on her right leg to ensure she did not end up with a leg length discrepancy. The letter advised that the mother would make the arrangements and inform the father. The letter concluded "Our client has provided consent to [Dr KL] for your client to discuss the operation with [Dr KL] directly to ensure that there is not miscommunication about the procedure" and provided contact details for Dr KL.
2. The mother took B to see the surgeon, Dr KL, who gave her a choice of dates and B chose 24 October 2018. On the same day, 15 October 2018, the mother's solicitors forwarded to the father's solicitor a letter, notifying him of the date of the surgery. The letter concluded "Our client is not aware of any arrangements made by your client to discuss the operation directly with Dr KL in accordance with the proposal outlined in the earlier correspondence."
3. The father sent a text to the mother stating:

[C] needs to see me and wants me there to give her a big hug, make her smile and sit by her to make her feel better, happy. Her health and well-being is the only thing that ever matters so please confirm. [B] and [D] are also very distressed and depressed and want the same. I dont [sic] want their health suffering further or damaged so confirm same for them for today. Could you also please stop telling them, as you are everyone else, that a Judge said they have to be with you as you are misleading them in communicating what a registrar did without speaking to the girls.

1. On 16 October 2018, the father's solicitor wrote a letter:

Our client has had independent discussions with [Dr KL] and we understand that there were alternate dates offered after the Hearing but that your client elected next Wednesday 24 October 2018. We also understand that [B] has requested, via the surgeon, that she would like our client to be present. Our client would of course prefer an alternate date for surgery after the hearing when [B's] wishes for him to be present could be met.

If your client insists that the current surgical schedule be maintained, and given that this surgery is of a serious nature and involves a general anaesthetic, our client would like the opportunity to speak with [B] both prior to and after surgery by way of reassurance.

Whilst we appreciate that the logistics of this could be challenging in that your client would want to be present at the hospital, may we suggest that our client attend with a supervisor and that your client vacate [B's] room for a short period of time before the surgery and after the surgery has concluded so that our client can see [B] once she has regained consciousness.

1. On 18 October 2018, the mother's solicitors responded:

With respect to the timing of the surgery, our client was provided with two potential dates prior to the end of the year, being 24 October 2018 and a date in November. It is not our client's preference for the surgery to take place next week. For logistical purposes alone our client would far prefer the later date, however it was [B's] express wish to take the earlier date. The surgeon has advised [B] that she will be unable to swim for two weeks post-surgery, and [B] was concerned to ensure that she does not miss out on swimming and outdoor opportunities with her friends during the warmer weather.

Following receipt of your letter yesterday our client was in contact with [Dr KL's] rooms and was advised that although your client had contacted the surgery, [Dr KL] was yet to speak to him. Further, our client has been present on each occasion [Dr KL] has met with [B] and we are instructed there have been no discussions in those consultations about [B's] wishes as to who will be present during the surgery.

Our client is acutely aware of the difficultly, however in circumstances where she shares the concern of Justice Benjamin as to risk, supervised or unsupervised, our client cannot agree to your client's request. Our client furthermore does not wish to de-stabilise [B] prior to or after the surgery by your client's presence, nor cause upset to the other children.

Our client is providing reassurance to [B] about the surgery and will be present at the hospital.

1. Also on 18 October 2018, the mother received a phone call from Dr KL advising that he had yet to speak to the father.
2. The mother spoke to Dr KL on 23 October 2018. Dr KL said to the mother:

I have only just managed to speak to [the father] today, we have been playing phone tag. Let me start by saying he understand the nature of the procedure and why it needs to be done. He told me about the family court case next week. He has asked me to postpone [B's] surgery until after court so I am not going to go ahead with [B's] surgery tomorrow.

1. The mother explained to Dr KL that she had sole parental responsibility and that the father's permission was not required and Dr KL stated:

I realise that but at this stage I'm not comfortable going ahead tomorrow. I'm in a difficult position. It's not actually emergency surgery. I will do the surgery in a couple of weeks time, I will make some enquiries and make additional theatre time, it might need to be [MN Private Hospital].

1. At the time of the phone calls between the mother and Dr KL, B was out with friends. When she arrived, the mother had to explain the surgery would not go ahead, and B was very distressed.
2. On 26 October 2018 the mother's solicitors wrote to the father's solicitors:

We are instructed that on 23 October 2018 your client had a discussion with [Dr KL] in relation to [B's] surgery scheduled for 24 October 2018. That discussion took place in accordance with the authority provided by our client for your client to discuss the procedure directly with [Dr KL]. As a consequence of that discussion, our client was informed on the evening of 23 October 2018 that [Dr KL] would not be proceeding with the surgery as scheduled for 24 October. [B] is understandably upset by this decision to postpone the surgery.

Please note that our client has withdrawn the authorisation previously provided to [Dr KL] for your client to discuss the operation with him. We note that your client has now had an opportunity to discuss and appraise himself of the procedure.

1. B's surgery was cancelled because of the father's insistence that he be present in circumstances where there were orders in place restraining him from being present.

1. The father's emails to the mother were the subject of consideration by both Dr CD and Dr K. I do not propose to reproduce any of the text. It is sufficient to say that Dr CD agreed that the emails were "oppressive, coercive and manipulative".
2. The police viewed the emails to be evidence that the father was intimidating and controlling the mother, and have sought two ADVOs for her protection on the basis of such correspondence.
3. Dr K stated in his addendum report:

The father's email correspondence with the mother had been excessive, controlling, dismissive of her experience and repeatedly undermining of her role in the children's lives. A lack of basic respect and contempt for her is evident throughout his communication. This continued despite the mother's repeated attempts to communicate in a matter-of-fact manner in arranging for the children's holidays and activities.

The father's extensive email communication with [Sergeant ZZ], NSW Police, similarly focussed on the mother's extraordinary misdemeanours, the obstructive nature of the Court process and the idealisation of his role in his daughter's lives. He appeared to have received validation for his concerns by the Police Officer in question.

1. On 19 April 2018, the father sent an email to the Federal Attorney General. A copy of that email was sent to Sergeant ZZ. It is not clear whether the email was also forwarded to others. The email comprises some eight pages of single space, closely typed text. The email sets out the father's version of his interaction with police and the Family Court of Australia and his allegations of the mother's manipulation of the police in obtaining an Apprehended Violence Order against him.
2. In relation to the decision of the Senior Registrar the father stated:

Essentially, for no valid, evidential or judicial reason, in a sexist approach, where playing the victim and accusations to victimise others so easily manipulates the system despite obvious perjury and perverting the course of Justice - the interim orders made supported the mothers [sic] alienation and denigration abuse [sic] of the children as communicated by them throughout 2017. In short, the interim orders gave the mother the legal right to continue her abuse of the children with no consideration, inclusion or voice of the children - their well-being, their feelings and what they had to say was occurring in how they are treated by the mother and her abusive behaviour towards them. Plus, where the children say they feel happy, safe and want to be with their father. The eldest being 13 years of age!

It was evident that the Registrars [sic] personal views, perspective or opinions (with no evidence), whatever they misconstrued, toward me were personal and the foundation of his interim orders. Not that of Justice, respect for its function, purpose, order, due process of evidence and innocent until proven guilty - or inclusion of the children with an ICL.

To add insult to injury of this nightmare situation thrown upon the children by this very system that is there to serve Justice and protect children. There are deep warranted concerns of corruption and / or Judicial perversion of justice.

[Mr P] SC is the husband of [Ms P] who was one of the collusive and collaborated affidavits for the mother -full of lies, accusations with no evidence and perjury. [Mr P] and I had a falling out in December 2016 after his treatment and abuse of my children, which he recently called a "family feud". I asked him to apologise to my children for his behaviour and enraged controlling temper but he refused to offer the children any apology. An argument ensured where the affairs of his wife, in their marriage, came out. To where they both made clear that they would "get back at me" and "ruin my life". In mid 2017 [Mr P] was subsequently ousted as a Director of my company by the new CEO, where he was asked to quietly resign. The CEO communicated [Mr P's] anger, rage and obsession toward me and wanting to destroy me.

[Mr P] over the years has noted how he "knows everyone in the Justice system" and "is very powerful and influential"...

I have deep and warranted concerns that Mr P SC is heavily involved in this unimaginable injustice of these interim orders and that corruption of otherwise is at play here - that is disturbingly using the lives of my children as some form of currency to "destroy" me in his obsession and vendetta against me.

1. By consent, a document which became Exhibit 35, was tendered by counsel for the father. That document stated:

The husband concedes that he sent the email of 11 April 2018.

The husband concedes that he believes the truth that the allegations he has made against others including Mr P SC in that email.

[Counsel for the father's] professional obligations preclude him from putting those matters to Mr P SC.

1. The father sent a second email to the Attorney General in similar terms. In cross- examination, the father consistently declined to answer questions about his motives in sending the emails and what he hoped to achieve.
2. Nothing in the father's evidence or presentation in cross-examination gave any confidence that the father would not resume communication in the same style with the mother and members of his family.
3. The email communication with his own mother to which reference was made by Dr CD was commenced by him in January 2019 after a hiatus of some years, responding to a letter written by his mother in November 2017. The emails were lengthy (on 14 January 2019, seven pages) and vituperative. The email of 14 January 2019 was in response to an email from his mother which ended, "Please do not send me any abuse in response as I will not respond to any abuse".
4. The emails to the mother continued despite her pleas for them to stop and only ceased because the police took action against the father.
5. When the ADVO expired, the father sent another abusive email to the mother.

1. Other than Ms QQ, who is probably no longer relevant in these proceedings, Ms EE and her husband Mr EE are the husband's main, and perhaps only, supports. Ms EE deposed "[Mr EE] and I consider [the father] to be family".
2. The father in cross-examination named them as his supports. He said that there was nothing that either Mr or Ms EE had done in relation to the children that had caused him any concern.
3. Mr and Ms EE lived in Asia in 2013 and met the mother and the children when they visited for a week. Ms EE said in cross- examination that they socialised on three occasions in that week. Although she did not recall that D was still being breast fed during that visit, Ms EE deposed that "I have never seen any physical affection between [the mother] and the girls".
4. The EEs returned to Australia in July 2017 when they continued their friendship with the father but had no relationship with the mother.
5. Their daughter, NN, is a friend of B and about the same age.
6. Ms EE, in cross-examination, conceded that, since July 2017, she had seen the mother on three occasions, once at Suburb Z Police Station in March 2018, at Court on 14 March 2018 and after the recovery order was made on 26 April 2018. It was Ms EE who returned the children to their mother.
7. Ms EE has had electronic contact with the children since 26 April 2018 but has not spent time with them since. NN maintains contact with B.
8. Mr EE did not give evidence in the proceedings but he has been significantly involved in the girls' lives, and in significant events relevant in these proceedings, in 2017 and 2018.
9. Mr EE was present at the airport when the mother and B returned from Queensland in January 2018.
10. After the proceedings were adjourned in November 2018, he wrote a letter to Dr K, the single expert, setting out his views. In the letter, dated 3 December 2018, Mr EE stated, inter alia:

I sat in the open court at the part heard final hearing in October and was very disturbed to see the system not consider the rights and well-being of the children. I saw the father's counsel...stated to the judge that this injustice cannot continue and wait another 7 months. I saw an interim application put forward to return the girls to being with their father as the want. The judge refused [counsel's] request to have you as the expert heard for an interim hearing and no real interim hearing occurred. Leaving the children in this situation after them having an expectation that that it would all be fixed in August and then October and then their life could go back to some kind of normal resemblance.

The children communicate how their 'mum is crazy and destroying our life with her lies to everyone and she is constantly saying bad things to everyone including us about our dad'.

Her hatred is so unhealthy and negative towards their father that she is willing to hurt the children to hurt him. My concern is that the family court has lost sight of the children whom (sic) are the most important in this situation.

This seriously has to be stopped before the children suffer any further and deteriorate to a level where they completely hurt themselves or fatally...

1. Ms EE made reports to DFCS and to the Kids Helpline on more than one occasion.
2. Ms EE contacted DFCS on 2 May 2018 to report that C was threatening to run away from her mother. The record of the call notes that Ms EE stated that the girls are petrified of their mother whom she described as either completely neglecting the girls or overbearing towards them. The note records:

Caller said that after Christmas 2017, [B] broke her leg while holidaying in Queensland with [the mother]. Caller says [the mother] refused to get [B] medical treatment just so that she can be as uncooperative as possible with [the father]. Caller says that even when medical treatment was sought, [the mother] was uncooperative with the doctor about getting an x-ray because she did not want the severity of the broken leg to be revealed. Caller then says that [B] did not receive proper medical treatment for her broken leg until [the father] went up to Queensland and made sure she got it. Caller says [B] broke her leg riding a scooter that she had never ridden before and that she was supposed to be under [the mother's] supervisions at the time.

1. Even according to the father, there is no suggestion that the mother refused to get treatment for B or that the medical treatment B received in Queensland was inappropriate. The suggestion that the father was required to go to Queensland to make sure B had treatment is not correct.
2. In cross-examination Ms EE said that she knew the mother had withheld medical treatment from B because NN told her that. She said that she intended to convey to DFCS that the mother had been negligent when B broke her leg. She said that her views had been discussed by her with her husband and her daughter.
3. She could not explain why she had felt moved to give that information to DFCS some four months after the event.
4. Ms EE conceded that she encouraged C to "record your proof of her being nasty" and provided phone numbers that included DFCS, Lifeline and the Suicide Call Back Service.
5. On ... March 2018, Ms EE sent an email to the mother saying "Hi...Just wanted to let you know [NN] and I will stop by the hospital to see [C] and also drop off [B] birthday presents. Can you let me know what time is best. [Ms EE]".
6. The mother replied "Thank you for your interest in my children. You are not able to come and visit today as at the moment we are restricting visitors to family only."
7. Despite the mother's request, on 21 March, Ms EE went to the hospital with NN. She was told that the mother did not consent to her seeing C. The hospital notes record that Ms EE said, in the presence of NN, that the mother was being "nasty". In cross-examination she said the comment was justified because NN was upset.
8. Also on 21 March 2018, when C was in hospital, Ms EE attended at B's school, intending to see B. She was asked to leave.
9. On 22 March 2018, Mr EE attended at the hospital asking to see C and give her a present. He was informed that the mother did not consent to his seeing C in what is described in the hospital records as a "difficult interaction". He was asked to leave three times and eventually escorted from the premises by security.
10. On 23 March 2018, Mr EE went back to the hospital to complain about his treatment the day before. He then went to C's school and asked to speak to the deputy head teacher.
11. On ... April 2018 Mr and Ms EE again went to the hospital and were asked by security staff to leave.

DID THE FATHER CONTACT THE CHILDREN CONTRARY TO THE ORDERS MADE ON 26 APRIL 2018?

1. Despite the father's denials, I am comfortably satisfied that, as has been set out in the earlier narrative, the father contacts the children.
2. His contacts have included emails and telephone calls instigated both by himself and by third parties.

1. The father admitted that he created the Social media service 2 accounts @...1 and @...2.
2. He admits that he has the passwords for those accounts.
3. He admits that he has the ability to post content on both accounts.
4. He disputes that he has posted content on either account.
5. He admits that he is able to delete content from both accounts.
6. There is no evidence in the father's case which explains how he asserts that the messages came to be posted on the Social media service 2 accounts.
7. I accept that the father may not have been the author of all of the material posted to the accounts and some of the material may have been copied or reproduced from other social media.
8. I am comfortably satisfied, having regard to the similarity between the father's emails and correspondence, and the content of the posts, that the father either posted the material or allowed another person to post it. He allowed the material to remain on the Social media service 2 pages.
9. I accept the evidence of the mother that the father made the children aware of the existence of the Social media service 2 accounts.
10. Whilst I do not propose to include in these reasons extensive reference to the content of the Social media service 2 accounts, the downloaded posts were in evidence.
11. The @...1 account consisted of about 200 posts commencing on 17 February 2019. They range from comments about family law and the courts, perjury, child abuse, parental alienation and the like. Comments in the nature of "I think that people who withhold children after divorce have a special place in hell" and "Real women don't alienate their children from their fathers" are common as are comments about the special relationship between fathers and daughters.
12. The content of the @...2 account is somewhat more disturbing. That account has about 500 posts.
13. Many of the posts are about parents and grandparents alienating the children from the other parent. There are a number of posts about fathers' rights, the characteristics of narcissistic mothers and emotional manipulation of children. One post reads "A female sociopath will stop at nothing to destroy the man she claimed to love while using their child to hurt him".
14. Included in the posts are references to children who have been murdered in the course of family law proceedings; fathers who have committed suicide and filicide.

1. Ms AB is a psychologist to whom B was referred for therapy by the Department of Education school psychologist, at her high school. The mother received a Mental Health Care Plan from a general practitioner who referred B for psychological intervention on 8 September 2018, noting "Long standing anxiety issues".
2. Ms AB first saw B on 26 June 2018 and saw her a total of eight times.
3. At the first interview, B told Ms AB that she was unhappy at her lack of access to her father and reported being upset at not seeing him and confused about the reasons. Ms AB reported that B made repeated negative statements about her mother such as "Mum didn't work for years, Dad did", "Mum was saying bad things (lies) about Dad, like he was trying to sell the house when he wasn't, it was really her that was trying to sell the house", "we were supposed to go to [Asia], but mum sabotaged it".
4. Ms AB reported that B repeatedly stated that she did not want to live with her mother saying "I don't see why I should be forced to live with her".
5. Ms AB stated that B throughout the sessions reported statements by her father and subsequently noted them as her own attributes or aspirations. She noted that B "made exclusively positive statements and attributions with regard [sic] her father, sharing positive experiences and memories. The rigidity of this view was fixed."
6. Ms AB noted that B persisted with a rigid thinking style, idealising her father and rejecting any notion of positive imaginary or memories with her mother.
7. Ms AB said that B stated repeatedly that she did not accept that anybody could tell her what she could do or not do in relation to the issue of where she lived.
8. In the session on 8 August 2018, Ms AB asked B to contemplate reasons why a third party, objectively, might not allow her father to contact her. B provided a series of negative claims against her mother, family members and her father's family members. B stated that her mother had manipulated her father's family to make claims against him that were dishonest and were to deliberately advantage the mother. B stated that her paternal grandmother was "insane", "had mental problems when a kid" and was "stupid". Ms AB observed that these statements were made repeatedly in varying ways during the session, with escalating intensity. Ms AB stated:

The client could not clarify the veracity of the statements by her own experience and clearly stated that she was not witness to the events she reported. For example, when asked how she knew that her mother had deliberately made friends with her paternal grandmother and "turned his own family against him", she replied "I just know" or "Dad told me they weren't even friends before".

1. In the course of that session, B made two statements regarding her father that were not positive towards him including "anger" and not being able to "forgive" but excused those attributes as being resultant of his mistreatment by other people. Ms AB noted that "[B] quickly then stated she did not want to think about negatives and would not do it again. She withdrew from further conversation."
2. On the third session with Ms AB, B was noted to introduce ambivalence in relation to decisions about her living arrangements. Ms AB stated:

[B] initially made a single statement that she no longer wanted to live with her mother subsequently reporting "I don't want the responsibility, I don't want to get trapped". "They would say well it's what you wanted ... this is your fault ... the moving and the homework and everything". [B] repeatedly stated she did not want to get "trapped" and subsequently "blamed" and forced to remain with conditions she requested at this time. [B] stated she was afraid of being "blamed" and "trapped". [B] expressed concern her decision may affect her sisters for a very long time "I'm afraid my decision would impact my sisters until they are 16 years, that's ten years for [D].

1. During the same session, B told Ms AB that during the Court process, she had been "tricked" by people, including during the assessment process. (I assume B is referring to the assessment by Dr K).

[B] reported an incident where she stated she later "found out" that she had been recorded without her knowledge. [B] could not articulate where or how she had "found out" stating "I just read it in documents or something". She recalled a second event where she had made a statement in front of her father and a third party, that she now felt had been disadvantageous to him. She appeared to ruminate considerably over this and blamed herself for the error.

She noted she had tried to be honest and it "always" resulted in being "misunderstood". [B] noted she was concerned her father would be disadvantaged as a result. There was a suggestion in these comments she thought her father was aware of her 'mistakes'.

[B] spoke intensely with a raised voice at times, exhibiting continued physiological agitation.

[B] then asked for a specific direction as to what she should say to her ICL, noting she could not "trust" anyone and repeated her frustration at not being informed of the basis for ceasing contact with her father.

1. On the next session with Ms AB, B appeared ambivalent and reported considerable anxiety regarding making "decisions" without all of the information she needed. Ms AB stated:

[B] reported several examples of her mother's friends aims to disadvantage her father noting they were "manipulative, deceiving, fake" "trying to put things in my sister's head', to "tell her your Dad's bad and stuff". She again relayed these statements without reported firsthand experience of events but being informed by a third party "Dad caught them taking photos".

[B] reflected on the perceived risks for her on speaking with her parents where she was required to have "split personality" and "have to be" something different for herself for each of them. She noted they both "gossiped" about each other and this made it difficult for her to be herself with either party, without risking the relationship. She had previously noted this was more likely with her father because he was less likely to forgive people, she noted these were people who he had stated had "lied" or "been manipulative"...

1. Ms AB noted that in the last three appointments, B expanded the session content and introduced a slightly more nuanced and ambivalent view of her concerns regarding her relationship with her parents. Ms AB stated, "[B] acknowledged in the last session that she had possibly been framing the author as a tool for which to direct messages at the court process, and that longer term, the author may be more useful, as a support for the outcome of the events taking place".
2. Ms AB stated that during the last session the contents of her report were discussed with B for the purpose of ascertaining whether B agreed that the report was an accurate account of her view. Ms AB stated:

At that time, [B] agreed the following was accurate

1. Her statements and very concrete thinking during the first sessions regarding her frustration and anger at not being able to see her father.
2. Her stated favourable view towards her father and her intention to share those with the author such that they were passed on to other parties.
3. Her anxiety and fear, due to making decisions with little or no information and possibly being later trapped into a commitment on that basis or blamed for poor choice.
4. Her concern any decision she makes in favour of resuming contact with her father and changing living arrangements would impact her sisters, possibly in a negative way, for a very long time.
5. Her suspicions of the author and concerns previous information she presented, in her view, may have impacted the court decision to limit access to her father.
6. Her distress at thinking her family and extended family were actively engaged in activities disadvantaging her father, in her view, and may be to blame for the restriction of access to him.
7. Sessions had been made more difficult and had not progressed to the level of authenticity that may be more therapeutic due to [B's] suspicions and concerns.
8. The authors [sic] view that [B] has been frustrated and angry at times during sessions, negatively viewing the intervention at times and wishing to withdraw.
9. [B's] view was more complex than what had been presented thus far, however she had felt unable to express her own needs due to being concerned how this may be viewed by her father particularly and others to a lesser degree "talk to any family member/teacher, can be turned into something that can be used in court".
10. The author had told her she had made overtures to [the mother] regarding follow up assessments for further support.
11. In her clinical discussion, Ms AB stated:

[B] presents with an oppositional and anxious disposition, demonstrating significant psychomotor agitation at times, along with pressured speech. She lacks insight into interpersonal qualities generally, rarely able to respond to theory of mind related questioning.

[B] demonstrates rigid, black and white thinking, becoming seemingly oppositional when invited to consider different perspectives. She is notably literal in her interpretation of events or statements made by others.

1. Ms AB viewed B as "a vulnerable young person" and stated:

Her limited insight into her own distress and attempts to supress anything she has been led to believe is a 'weakness' may be a hindrance to [B] developing appropriate coping skills and source of difficulty for her in the future.

The author notes that the exclusive favourable view of [her] father, and exclusively negative view of her mother appears extreme in the absence of any example provided of a negative personal experience with her mother. [B] does not appear to be able to verify the evidence used to form these views by her own experiences or interactions. In each case these views appeared to be provided to [B] and were represented as detrimental to her father. Her literal interpretation of information may serve to reinforce concrete thinking in this regard.

1. Ms AB requested an appointment with the mother, with B's consent to provide information to the mother regarding her concerns about Autism Spectrum Disorder presentation and her further recommendations for assessment or intervention. The mother attended a conference with Ms AB on 29 August 2018, at which time Ms AB relayed to the mother her concerns that an assessment for B was required in relation to Autism Spectrum Disorder ("ASD"). Ms AB also expressed concerns that:
   1. [B's] extended family relationships appear to be at risk from [B's] possible vulnerability in judgement: specifically, when provided inappropriate context from third parties.
   2. There are significant risks to a young person's development and mental health, albeit potentially unwittingly, by an undiagnosed parent or parent not legitimising intervention; including psychiatric and biopsychosocial support.
   3. Masking and mirroring behaviour play a significant role in how young female ASD people learn and this can be very harmful if their immediate role models have deficits in relational or coping behaviours themselves.
2. Ms AB noted that the mother immediately requested a referral to an appropriate professional for further assessment.
3. Ms AB made it clear that she did not engage with the father, B's siblings or any other person in relation to B and was not engaged in family counselling. Ms AB recommended commencement of cognitive behaviour therapy for B, continued psychological counselling support and a full diagnostic assessment for ASD.
4. In cross-examination, Ms AB said that a repeated feature of B's conversation was that she was afraid of making "another" mistake that might be used against her father.
5. B did not make any complaint that she had been physically abused by her mother but said that her mother had manipulated other people against her father (a complaint similar to the father's allegations in cross-examination).
6. Ms AB said that B's stated views had changed over the course of their sessions. Ms AB said that B's "100 percent positive" views of her father changed and her attitude shifted to not wanting to live full time with her mother. Ms AB described "an enormous shift" in B's thinking. Ms AB said that B wondered "What if there are things I don't know about?"

1. Ms XX prepared a report annexed to an affidavit sworn by her on 28 September 2018. She stated that the father was initially referred to her for assistance in managing his distress in relation to "A family law matter".
2. Consultations with the father were conducted on 23 May 2018, 29 May 2018, 4 July 2018 and 15 September 2018 for a total of about six hours. In addition there were telephone conversations. Ms XX did not have any contact with either the mother or the children. She based her information on the father's self-report, a letter from Dr TT, the contact reports for the three occasions when X Group supervised the contact, a statement of Sergeant ZZ dated 19 May 2018, copies of emails from the children to the father and the results of psychometric testing.
3. She concluded that the father did not evidence problems with oppositional defiant disorder or conduct disorder during his developmental years and therefore the diagnosis of anti-social personality disorder is not appropriate. She noted that the father did not meet the criteria for personality disorder and that he did not evidence symptoms consistent with bipolar disorder, psychosis, or affective disorders. She concluded that the father did not evidence symptoms consistent with underlying psycho pathology or personality disorders.
4. Insofar as Ms XX purported to give evidence about the effect on the children of not spending time with her father and other matters beyond her brief, that evidence was disregarded.
5. Dr K in his report recommended at paragraph 208:

The father should attend a psychological intervention to support behavioural change and the establishment of appropriate boundaries in his communication with the mother and with the children. He should desist from communication that may be undermining of the mother.

1. Attendances upon Ms XX do not constitute psychological intervention of the kind which was recommended by Dr K.

1. Dr CD saw the father on five occasions in February and March 2019 before he wrote his report.
2. Dr CD stated that he had "focussed particularly on assisting [the father] to consider how he will maintain appropriate boundaries in his communication with [the mother], the children and the paternal grandmother..."
3. Dr CD said that the father "wishes the girls to maintain a good relationship with the [paternal grandmother] despite the antagonism which he says exists between himself and his mother at this point in time."
4. The father in cross-examination contradicted that evidence. He said that the children did not have a good relationship with their paternal grandmother and were not comfortable spending time with her. The father's evidence, in turn, was not consistent with emails between the children and the paternal grandmother. Dr CD had not been told that the father was seeking an order that any time the children spent with their paternal grandmother should be supervised.
5. Dr CD reviewed the email exchange between the father and the paternal grandmother in January 2019 which was initiated by the father with an email dated 16 January 2019 referring to a "disgusting and revolting" letter sent by the paternal grandmother to the mother in November 2017. The father's tone is offensive. He advises his mother "so stop your games ... in your horrible behaviour behind all of this you agitated, incited and encouraged for your destructive and twisted horrible self-serving motives". Her responses are calm and reasonable.
6. Dr CD deposed that, after discussing the emails with him, the father agreed to send his mother a "brief conciliatory email". On 22 March 2019 the father sent an email to his mother with neither salutation nor signature which read:

...I have thought about your emails. I will take you at face value.

1. In cross-examination, the father said that email was the best he could do.
2. In relation to the emails to the mother, Dr CD did not disagree with the proposition of senior counsel for the mother that they were "oppressive, coercive and manipulative". He said that the father felt that his emails were justified by the circumstances at the time they were sent.
3. Dr CD placed weight, as a "positive prognostic sign", upon his understanding that, although the father had not been able to see the girls for some time, he "assures me that he has not responded to the girls very frequent electronic communications with him. He has found them personally very distressing, yet he tells me he has adhered to the orders". Dr CD said that he had raised the topic with the father four or five times and possibly several times in a session because it was important.
4. The father's assurances to Dr CD were not accurate. In cross-examination of the father, in April 2019, it emerged that he has sent replies to emails from the girls, despite the existing orders. On two occasions the father had responded to a text by texting back a heart or a series of hearts. In cross-examination, Dr CD said this was a concern because the father was not truthful with him and that it detracted from his opinion about the likelihood of the father modifying his communication style.
5. Further evidence of the father's contact with the two older girls emerged after the matter was adjourned part heard and after Dr CD' cross-examination. The full extent of that communication has been discussed earlier in these reasons.
6. On 16 February 2019, the day after their first appointment, Dr CD wrote to the father saying:

I am writing to you to set out what I think is our task together. From what I have read and from what you and [your solicitor] have told me , it seems that the actions of the Court so far have been based on the Court's perception (based only on materials they have read) that they need to protect the girls from the possibility that you are an alienating father.

I cannot emphasise too strongly that your evidence in a few weeks time has the potential to completely overcome any misperception the Court may appear to have held up to now ...

At this point, your focus needs to be firmly on convincing the Court by your evidence ...

If after the Judgement is delivered you still feel major injustice needs to be remedied, your lawyers will direct you to a forum for that. Until then expression of your grievances only runs the risk of making you look more [alienating].

I think that we need to work on several things to make sure your evidence accurately reflects your feelings, and that it is clear and unambiguous. In practice, I suggest the following:

1. Finding your best and clearest words to articulate several critical parts of your evidence

- your love for your girls and the importance of their relationship with [the mother]

- that it is entirely up to [the mother] to manage her relationship with children, and that you will not interfere with that, or with any other aspect of her future life, unless at her request

- what you can do to provide positive support for the girls [sic] relationship with [the mother] without involving [the mother] at all

2. Help you to recognise and stop yourself when you are about to clutter your evidence with qualifications, recriminations and grievances about [the mother] or the Court processes.

1. Dr CD does not, in this letter, suggest that the purpose of the sessions is to address the issues relating to the father's parenting identified by Dr K. In cross-examination, Dr CD said that his aim was to address the father's style of communication.
2. Dr CD said the father faced two hurdles - to demonstrate that he wanted to desist from his criticisms of the mother and then to demonstrate that he could adhere to that intention. Nothing in the father's responses to cross-examination, or the evidence that emerged after the cross-examination was completed, suggested that he had formed any resolve to desist from criticism of the mother.
3. In cross-examination, Dr CD said that the cross-examination of the father would be an opportunity for the father to demonstrate that he is able to moderate his style of communication as they had discussed. It would a positive sign, he said, if the father could answer questions briefly, remain on point, not digress into peripheral matters and refrain from recrimination about the mother and his mother. Dr CD said cross-examination was a good test for the father to see if he could quarantine his thoughts and not introduce "all the alienating stuff".
4. The father was not able to pass that test.
5. The father, in cross-examination by counsel for the ICL, evinced no understanding that there were any issues relating to his parenting which needed to be addressed with the help of a therapist. In response to the question of his seeking assistance he replied "for what? I would like to know".
6. Dr CD said that it was apparent to him, after seeing the father that nothing was going to shake his beliefs (about the mother). All one could hope for, he said, was that he would not act on his beliefs.
7. Dr CD was asked to what beliefs he referred. He said that the father's main belief is his attitude to the mother and his beliefs about her. Specifically, he said, the father believed that the mother was not as good a parent as he. Dr CD said the father is "quite locked in" to that belief. Further, the father believes that the mother and her supports have "done things" that have led to the father not spending time with the girls.
8. In anticipation of the first appointment with Dr CD, the father wrote him a lengthy letter dated 13 February 2019, setting out the father's version of the history of the matter. In that letter he stated, inter alia:

Father starts hearing from people in the system that he is disliked by the family court because he won't be quite [sic] and stands up to their abuses. He is told the brethren in the fold have put a black mark to his name and their solution is to keep attacking with unjust decisions and abusing children. Hoping their continued abuse will elicit and force a reaction from the father to commit suicide or do something drastic to protect his children from the family court abuse. This outcome would enable the family court to say they got it right by creating the situation in their abuse to conceal their mistake.

1. Dr CD agreed that the letter was similar in tone to those sent by the father to the mother, to his mother and to the Attorney General and that the letter demonstrated a lack of reflective capacity on the part of the father and his tendency to blame others without considering his own contribution to the events.
2. In answer to a question from counsel for the ICL, Dr CD said that, if the father has contact with the children but cannot modify or restrain his criticisms of the mother there is a risk that the children will again refuse to see their mother.
3. Dr CD said that he had not discussed with the father the suggestion that the court was attempting to force him to commit suicide but agreed that the statement was "extreme". There was no evidence that Dr CD explored with the father what he meant by doing "something drastic to protect his children".

1. For the purpose of his first report, Dr K interviewed the family on 4 and 5 June 2018.
2. Dr K reported on his conversations with each of the children.
3. B told Dr K that she was excited because she had been told that she would be seeing her father at the assessment. B said that the 50/50 shared care which the parents had entered into when they separated and lived in separate accommodation had initially progressed well. In relation to C's refusal to spend time with her mother, B told Dr K:

[C] didn't like how [the mother] was manipulating us. [C] stepped back and realised and could see what Mum was doing. She would say bad things about our Dad when we would say good things about him. She would try and manipulate us into not liking him because we've always had a strong relationship with our Dad. [C] was just worried.

1. B told Dr K that shortly after C refused to return to her mother, D followed and then B, as they did not like the way their mother was talking to them about their father.
2. B told Dr K that she had stopped seeing her mother in January 2018, following the accident when she had broken her leg. B said that they had been staying with friends in Queensland and her mother was "brainwashing them" about their father's behaviour and telling them things that were not true. Dr K asked B how she knew that her mother was lying and B responded:

I just knew. I told Dad and he was quite upset because he had been helping them [the friends] a lot with a family issue and he felt quite betrayed. And I could hear what they were saying in the other room. And I told the lady that mum was lying, and she said how would you know what happened.

Then I decided not to go with my Mum because I realised my mum was telling all these people Dad knew lies, so they'd be against him. And so, I decided not to be with her. Because I didn't want to be around the lies and that sort of stuff.

1. B said that when she started high school with a broken leg her father had been extremely supportive and assisted her with schooling. B told Dr K that on the day that she was returned to her mother's care she was aware that her father was in court. Her father had told her that if she didn't go home with him she was to look after her sisters. B cried as she told this to Dr K. B said she had thought about running away from school before her mother came to collect her but this wasn't possible because she was on crutches and the teachers made her sit and wait for her mother. B said that she was crying and D was crying. C had been at a school camp and when C came back from the camp she had become hysterical and run away.
2. Asked about her experience of living with her mother after she was returned, B said to Dr K, "We stayed at our Mum's. It's been sad, depressing. It has a really bad vibe there. My whole life has changed. Before I had no worries, was calm and looked after by my dad. Now I just feel scared."
3. When Dr K asked her about her fearfulness, B said "I'm scared that since my dad's not here there's no one to protect me if something happened." Dr K reported "She had difficulty in finding a realistic example of what she needed to be protected from but felt with her father by her side. By contrast, her mother supported the teachers if there were any problems."
4. Dr K reported that B expressed a strong wish to reside with her father and was not able to consider how much time she would spend with her mother.
5. In relation to her mother, Dr K records B as saying "I think she wants to make my dad feel horrible by contacting all the people he knows. He's already had a tough childhood. With his mother lying about his dad and not seeing his dad. And we were all going to see him but he had to cancel it because of the Court thing."
6. Dr K commented "Throughout this discussion B was seen to be strongly aligned with her father. This was magnified by her perception of her mother's criticism of her father." To Dr K B spoke positively about Ms QQ whom she described as lovely, caring and welcoming, with "a really good mum vibe".
7. When C was interviewed on her own, Dr K asked her about her experience of living with her mother. C responded "I don't really do much. I think and I don't really talk to her. I don't really want to talk to her. Being with Dad is 100% better."

The girls played together as they waited for their father's arrival. They immediately ran into his arms in an excited state before he was able to close the door to the room.

[The father] engaged with all three children in a thoughtful and enthusiastic manner. He spoke about their various activities.

1. Dr K observed that when the girls made complaints to the father about their mother he made positive comments and didn't amplify their distress.
2. After they had been with their father for two hours, the girls spoke to Dr K enthusiastically about having seen their father. He commented "It was evident that the children felt listened to, understood and respected by their father."
3. Dr K reported:

The girls were informed by the report writer of the importance of remaining in their mother's care, behaving in an appropriate fashion and respecting the Court process. [B] commented that her Mum would say "Every time we see Dad that Dad said to do it and that Dad influences us." When asked if it was possible to interact in a polite and appropriate manner with their mother and paternal grandmother, [B] spoke of not wanting to be "a fake person" and to be able to be "real".

When asked about therapy with psychologist [Ms PP], [B] responded that she didn't trust her as she spoke with her Mum, was influenced by her and thus didn't believe [B]. [C] agreed and commented that she had decided not to continue to see her. I was informed that [B] was due to see a private psychologist at her school. [C] had engaged with the school counsellor. All three children expressed the desire to reside with their father. They were uncertain as to whether they would be willing to spend time with their mother.

1. Dr K stated "Following this interview, the children were observed to interact in a positive engaged manner with their mother. Both their mother and maternal grandmother responded in an appropriate and caring manner."
2. The father, with Dr K, observed the children's interaction with their mother via Skype and the father observed, as did Dr K, that the girls were interacting in a positive and appropriate manner with their mother.
3. The father asked Dr K for guidance about how to respond when the children said their mother hated him and made negative comments about him. Dr K reported "It was identified that he had shared too much with the children about his experience. He explained that he had done so as he wanted them to know what was going on."
4. Dr K reported that the girls spoke very positively of Ms QQ, with B referring to her as "lovely, caring and welcoming with a really good Mum vibe".
5. In a letter dated 19 July 2018, Dr K responded to questions asked of him by the solicitors for the father.
6. Dr K stated:

The older children have consistently expressed frustration and distress regarding the cessation of contact with the father. The advantage of delaying any resumption of contact would be that this would support the stabilisation of the girls' experience in the mother's household. She is of the clear view that this has been of assistance. That said, the girls have consistently expressed profound frustration, distress and anger regarding the loss of contact with their father. Any delay will be a source of further frustration.

The mother is of the view that any communication by the father will enable his influence over the children to continue. It would also be a conduit for the expression and amplification of their frustration and distress. It could be anticipated that the father would empathise with their distress and share his own concerns regarding the family's circumstances. This would have the capacity to amplify the girls' distress rather than keeping them contained, given the nature of their current circumstances. Thus, the advantage is that it would enable the girls to keep a lid on their emotions and behaviour. This would be of assistance in the mother's parenting. The disadvantage would be that they would be unable to express, share and work through their evident emotional distress.

An immediate reinstatement of face to face time, supported by psychological intervention, would assist in the resolution of [C's] adjustment disorder. It would, however in the short term, have the potential to result in an escalation of her behavioural issues which have been difficult to manage up-to-date.

It would be beneficial for the mother and maternal grandmother to attend psychological intervention with an experienced child and family therapist to explore the issues raised in the expert report. That said, it is probable that they will remain resistant to any view inconsistent with their world view.

It is predicable that the mother and maternal grandmother will continue to oppose any involvement of the father in the children's lives. This raises challenges regarding their future care. Recommendations regarding this will depend on the Court's finding regarding the actual basis of the parents allegations.

1. Dr K was asked to prepare a second report and, to assist him, he was provided with the bundle of emails sent by the girls to their father, pursuant to the orders of Benjamin J. together with such of the trial affidavits as he had not already read and copies of relevant material from that produced on subpoena.
2. In relation to the children's emails, Dr K wrote:

The extensive email correspondence between the parties was of particular interest. [C's] ongoing correspondence with her father highlighted his idealised status. She repeatedly referred to him by the loving term, [Dad]. She expressed her enduring love and connection with him in a manner which would not be regarded as within the range of normal experience. Her statements magnify his significance in her life and repeatedly minimised the importance of her mother. This was consistent with the short movies and photomontages produced by her which depict his idealised connection with his three daughters. This largely excluded their mother's role in their lives. Commonly available digital technology had been used contributing to the fantastical nature of these images. The numerous images of the father in intimate postures with the children while wearing swimming trunks was unusual. An unusual degree of intimacy was evident in his interactions with his daughters, including recurrent images of him kissing the girls on the lips, with a naked torso, wearing swimming togs and staring directly into the camera. [B's] correspondence with her father is in a similar but less intense vein. This contrasts markedly with the children's correspondence with their mother which was identified to be more balanced and within the normal range of experience.

1. Dr K also reviewed the email correspondence between the parents and wrote:

The father's email correspondence with the mother had been excessive, controlling, dismissive of her experience and repeatedly undermining of her role in the children's lives. A lack of basic respect and contempt for her is evident throughout his communication. This continued despite the mother's repeated attempts to communicate in a matter-of-fact manner in arranging for the children's holidays and activities.

The additional material was supportive of the mother's view that it was not possible to engage in a normal co-parenting relationship with the father. This raised significant questions regarding the viability of the report writer's previous recommendation for a normal approach to the re-establishment of co-parenting.

1. Dr K said that the father's approach to parenting was a function of his narcissistic personality traits. He said that the father's approach was unbalanced and coloured his perception of the role of the mother in the children's lives.
2. Dr K stated:

The review of the entirety of the trial documentation and consideration of the additional email communication, including the video material prepared by [C], has led me to revise my recommendations.

Should contact be reintroduced as recommended in the Expert Report dated 27 June 2018, without a significant shift in the father's approach to parenting, it is likely that a similar pattern of behaviour would be reignited. Namely, that the children's relationship with their mother will be compromised as the father supports the children's overt criticism of her parenting. This was particularly problematic given the alleged history of family violence, if upheld by the Court, which had characteristics of coercive control. This related both to the violence reported by the mother and punitive parenting practices including sending his daughter to school after hosing her in her uniform. Based on reconsideration of my original assessment with reference to the extensive material before the Court, including the trial affidavits and documentation produced under subpoena, my recommendations are now in line with those sought by the mother. That said the children will remain distressed by the suspension of contact from their beloved father.

ORAL EVIDENCE OF DR K

1. Dr K said that the material he had seen from Dr VV provided corroboration for the mother's allegation that the father had been physically violent towards her and that he had perpetrated coercive and controlling behaviour towards the mother.
2. Having read the emails directed by the father towards the mother, Dr K said they demonstrated that the father held her parenting in contempt and that he held her character in contempt.
3. Dr K also said that the father's emails to the mother demonstrated him as a perpetrator of family violence. He said:

Certainly, there was extensive documentation in the father's email correspondence to the mother which was...very clear evidence of ... this history of coercive and...controlling behaviour where he would detail how she should behave, how she was wrong, how it was inappropriate to kind of behave or parent in a certain way; and it went on, and on, and on, and on and on. And the - the excessive nature of the - the father's communication to her was concerning.

1. Dr K said that it was not unusual, in a relationship where violence had featured, for a victim to write loving messages and cards to a perpetrator on significant occasions; to write loving emails and for the couple to present as happy and united in public. He said that such actions on the part of the victim were an effort to placate the perpetrator.
2. Similarly, he said the existence of photographs of a happy family were not evidence that family violence was not also a feature of the relationship, even if it was the victim who took the photographs.
3. In relation to emails sent by the father to others, including Dr CD, Dr K said they demonstrated the father's lack of capacity for self-reflection. He said, of the email to Dr CD:

And it does provide, I think, you know, very clear evidence of how the father formulates his views and presents them to the world, that he elaborates over issues that are of concern to him and validate his position, and omits other information that does not fit with his world view. And this is clearly problematic, and it's likely to impact his communication with others generally, it's likely to impact his communication with the children, members of the family and other people involved in the family's life but also in his approach to any therapeutic intervention which is, of course, what this was all about. This was his executive summary, so to speak, to assist [Dr CD] in providing assistance for him in these circumstances. And, you know, certainly there are numerous statements that he makes that are factually correct, there are some that are factually incorrect and there are some significant omissions, all of which reflect his - his world view. There is a paranoid flavour to this communication. And, certainly, he elaborates greatly on the injustice that he and the children have suffered at the hands of the Family Court. He does make the statement that the parties involved in this are hoping their continued abuse will elicit and force a reaction from the father to commit suicide or do something drastic to protect his children from the Family Court abuse.

1. In relation to the father's communications, Dr K said:

If there is a lack of underlying empathy, a lack of underlying personal responsibility; if there is a lack of basic insight that, "This is where we're at; I have a contribution to why we're in this situation", this will recur.

1. Dr K said that, one by one, the children had come to adopt the father's views of their mother. He said that this process could not have come about only from their own negative experiences of their mother or because they overheard their mother talking negatively about their father.
2. Dr K said, of the relationship between the girls and the father:

He makes them feel special; they see him as special; they're in a special narcissistic bubble together.

1. Describing the relationship of the children with the father, Dr K said:

It's my understanding that the children did receive a huge amount of love; a huge amount of - a huge amount of understanding; a huge amount of validation for their experience from their father. In my report I refer to him as being empathic to their experience and that was one of the factors that held me back from making a diagnosis of narcissistic personality disorder, because I did experience him to be highly empathic to their experience. However, it's a particular type of identification where he is identifying with their experience as an extension of himself, rather than true empathy and certainly lacking the capacity for that second half, for the balance of providing adequate control; that you need to, you know, respect your mum when she's telling you off; of course you have to kind of do things you don't want to in life and so on. And what I think developed over time was that whenever the children were receiving any restriction from their mother, when they would communicate that to the father he would empathise with their experience from his point of view, from their point of view by saying, "Well, that's terrible," and, "She shouldn't be yelling at you," and, "Isn't that shocking that, you know, that happened," and instead creating a bubble around himself and the children.

1. Dr K explained the girls' change of attitude towards the mother :

They had a particular identification and alignment with their father that developed over time... it's my understanding that the children were raised in an environment where that developed in the context of him being a - a very affirming, positive, larger-than-life figure in their lives, and when he was unable to be there for - for them, he blamed the mother, such as when he went - when he relocated to Asia it was her fault for not joining him. And he shared a lot of his experience with the children. And as he shared ... his experience in the children...he did so from a narcissistic framework. I do have a view that the father has a narcissistic personality structure. When we're thinking about personality it's best to think about personality as a dimensional experience. Based on the mother's assertions of the father's manipulation, the father's lack of empathy, the father's grandiosity, the father's need for acknowledgement, it is understandable that she formed the view that he had a narcissistic personality disorder and, certainly, his manner of presenting himself to the world is clearly narcissistic. And when he was sharing his view of the children's experience, there was glowing affirmation of everything that the children were doing.

1. Dr K said that the children eventually became allied with and identified with the father, "the children essentially became empathic to their father's experience as a part of their alignment. And that became, you know, quite a powerful dynamic for them."
2. He described them as "enmeshed with him through idealisation".
3. He said:

And of course when the mother - when they were exposed to anything negative about their experience of their father from their mother or from other parties, again, that was evidence consistent with their father's narrative of how terrible their mother had been to him and how restrictive she had been with regard to their contact. And so on the context of when contact was actually restricted because of things escalating then they became more oppositional; they ran away; they had to be restrained, all of which was amplifying of this dynamic. The father's persuasiveness with regard to this was very evident. When I interviewed him, he was very persuasive in his - in his account to me.

One of the concerns about that bubble was that when he was experiencing difficulties himself, issues with his own family of origin, he shared that with the children in an inappropriate fashion, thus the older children became concerned for their father when he was very distressed about not seeing them; when he was very distressed about his own experience as a child; when he was very distressed about the lack of contact with his - his biological father because he was unaware of his - of who he was. He shared that with the children. He talked about plans of going to Queensland together to meet him and so on and - and thus the children essentially became empathic to their father's experience as a part of their alignment. And that became, you know, quite a powerful dynamic for them.

1. Dr K said that the children had become an extension of the father:

...very simply that they identify strongly with the parent. They then express and - and validate the same views as that parent. Anything that's inconsistent with that is dismissed or treated with contempt essentially because they can't hold both in mind at the same time.

1. He explained their then recent rejection of Ms QQ. Dr K described the video sent by the girls to Ms QQ as "shocking to observe their absolute contempt" for a person who had "previously been a significant caring figure in their lives." He said that this was consistent with the mother's experience that anything that was not acceptable to their father was treated by the girls with contempt. He agreed the material was of a most extreme nature, described the video as "very disturbing" and "what was concerning was that they were taking on a persona and delighting in the actions that they were exhibiting."
2. Dr K said that this alignment with the father was psychologically harmful to the children. He said:

...the concern, of course, is that if the children grow up exclusively validated by a narcissist and first of all they need to mirror the narcissist so they can't differentiate themselves from that. They have to kind of constantly say how fantastic their father is in this situation. If they don't that would be potentially problematic. And so they become an extension of the environment in which they're validating the father, the father is validating them, and anything that doesn't fit with that needs to be treated with contempt. And I think that their recent experience with [Ms QQ] perhaps is a case in point. When they came along to see me she was fantastic. She was a good...gave out good mum vibes. They identified... strongly with her because she was mirroring their father; he was saying how fantastic she was. Then the minute something goes wrong that whole experience is disavowed. So rather than...being able to hold in mind that...there were good things about that relationship and there's a sense of loss that that relationship is no longer there - which would be a normal process - they can't experience those normal feelings but instead she goes from being idealised to being devalued and that's a problem when it comes to future relationships.

1. Dr K said that the father's potential to manipulate other adults and the children posed a further danger to the children.
2. Dr K said that the children are likely to develop problems with their own self esteem if they are challenged and can't rely on the father's constant validation of them.
3. Dr K said that people such as the father are sensitive to criticism because it shatters the image they wish to project to the world and are likely to react by rage, contempt and defiant counter attack. He said that the children's rejection of Ms QQ mirrored their rejection of their mother.
4. In relation to the risk to the children of physical violence from the father, Dr K said:

I don't think that the children are at risk of physical violence as long as they essentially stay in the bubble, as long as they are identifying with their father, as long as they're in a process of mutual validation I don't think it's likely that there will be any physical violence. I think that if the children were escalating towards their father in the same manner in which they were escalating towards their mother then they would be potentially at risk.

1. He said that the potential risk of violence is escalated as the children approach adolescence, when children are naturally more likely to challenge parental figures, and in this case, break the narcissistic bubble between the children and their father.
2. Dr K said that the risks inherent in the children having a relationship with their father are unacceptable. He said that there is, firstly, a risk of physical harm because the father has a capacity to respond violently when challenged. Secondly, there is a risk to their psychological and emotional development in that they will find it difficult to come to terms with failure, disappointment or loss. Nextly, he said, there is a risk that they will lack the ability to tolerate criticism to a degree that is necessary to maintain a relationship with significant figures.
3. Dr K considered the email to Dr CD of 13 February 2019 and said:

And there is something very concerning about - about that communication. And, certainly, when I was identifying issues of risk before, clearly that would raise concern regarding risk where there have been such threats that have been put on the table. And, again, it's consistent with his world view which is that it's not he who would be responsible for any such actions, it would be, in this situation, the Family Court who would be trying to conceal their mistake and justify such processes. And, similarly, his - his previous focus on the children's mother and, indeed, his focus on his own mother which was also in the correspondence that I have just perused.

1. He said that it was impossible to know what the father intended by the threat implied in the email. Dr K said:

"...something drastic to protect his children from the Family Court abuse."

I do not know. It's obviously - it could be a throwaway line, it could be something more significant. And, indeed, I'm sure if I asked or if anyone asked the father, one wouldn't be confident about the - you know, the truthfulness or accuracy of any response. So it's really impossible to know. But - but it is, obviously, a - cause for concern to make such statements, particularly in the context in which it's made where it's - in a sense, it's an official document to a senior medical practitioner and specialist who is, you know, there to provide assistance.

1. Dr K said that the children's spending time with their father, even on a fairly limited basis, represents a risk to their having an ongoing relationship with their mother.
2. Dr K queried the father's capacity to use time with the children to present to them a balanced view of himself and the world. He explained that the children need to have a balanced view of their mother and that the father would need to be able to communicate that to them, something he is not capable of doing.
3. The consequence of the father's inability to present a balanced view to the children is:

...he will continue to go down the current pathway. It would mean that his parenting capacity would be impaired. It would be consistent with him having a narcissistic personality disorder. It would give one no confidence that he would have the capacity to provide an appropriate model for the children which will assist them in their current life experience in the care of their mother; in their current life experience in attending school and respecting their elders, respecting their teachers; in their development of relationships; and there would need to be limits placed on his role in their lives.

1. Dr K was aware of the difficulties imposed by modern communication technology in limiting the electronic contact between the children and their father through social media, in all its forms.
2. He also considered that there had been communication via third parties, particularly the EE family, which was likely to continue.
3. He said that it was almost impossible to restrict communication entirely. Dr K raised and then dismissed the possibility that there could be some contact between the father and the children under the supervision of a trained therapist. Even that scenario had the capacity to undermine the children's relationship with their mother. He rejected the efficacy of a professional supervisor.
4. Dr K said that not seeing their father will have a significant effect on the children and is likely to cause them to be resentful which will, in turn, pose challenges for the mother.
5. He recommended that the father seek appropriate supportive counselling to help him with his response to an unfavourable outcome, noting that the father's personality structure is fragile.
6. Dr K said there was no ideal solution for this family, but rather his recommendations were a matter of balancing the risks inherent in the children not having a relationship with the father against the risks that will occur if the relationship resumes.
7. He said that the children's rejection of Ms QQ was evidence that they had already suffered psychological harm and his recommendation was intended to prevent a continuation of that harm. He described the father's psychological manipulation of the children as psychologically abusive.
8. Dr K accepted that there was a risk that one of the children, deprived of contact with the father, might run away and that would create another risk. He said that it was possible that, if the children do not spend time with their father, they will continue to idealise him, which was also damaging for them, but that he was unable to say how that could be addressed. He agreed that the children will hold their mother responsible for their not seeing their father. He accepted that the children will use electronic communication to keep in touch with the father.
9. None of these matters caused him to alter his recommendation.
10. Asked by counsel for the father whether there was a way to gradually reintroduce contact with the father to ameliorate the children's missing him and holding the mother responsible, Dr K said:

I think the problem is that the children's behaviour and behavioural problems did not arise simply because they were not seeing their father. In fact, what had happened, my understanding was, that the children had refused to see their mother in the context of contact with their father and that, while they were seeing their father, they were running away, and so, actually, it was contact - my understanding is that, whilst they were having contact visits with their father was when they were running away and it is my understanding that since there has been no contact, that behaviour has now ceased. And it is not my understanding that there has been ongoing running away behaviour and out-of-control behaviour that I'm aware of subsequent to that.

1. Dr K did not recommend any further assessment of the family which would, he said, add stress to the children's lives. He urged a resolution of the proceedings.
2. It is to be remembered that Dr K was cross-examined in April 2019. The events subsequent to that cross-examination, particularly the escalation of the father's electronic communication with the children; their subsequent rejection of that further communication with him and his reaction, are entirely consistent with Dr K's evidence.
3. The vitriolic and highly critical message sent by the father to B on 22 November 2019 illustrates and confirms Dr K's predictions about the father's behaviour.

1. The primary considerations in these proceedings are twofold. Firstly the benefit to the children of having a meaningful relationship with both of their parents and secondly the protection of the children from physical or psychological harm arising from being subjected or exposed to abuse, neglect or family violence. In the event that those considerations are inconsistent, or in conflict, then the protection of the children is to be given priority.
2. I accept the evidence of Dr K that these children cannot have a relationship where they spend time with both of their parents.
3. Dr K spoke in cross-examination of the children "once again being pulled into the bubble" of their father's narcissism "because that's how he interacts with them".
4. The parents agreed in a shared arrangement commencing in 2017 which broke down after about nine months. I accept that, in the care of their father, even for short periods of time, the children cannot have a positive view of their mother because that would be inconsistent with his entirely negative view of her and, as Dr K said "they can't hold both in mind at the same time".
5. If the children can only have one parent present in their day to day lives, which should it be?

any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

1. Until about July 2019, the two elder children have maintained, in correspondence to their father and in correspondence clearly directed to, and intended for the Court, that they wish to live with their father.
2. D's views are not clear. Her most recent emails to her father express love and that she misses him greatly.
3. There appeared to have been some tempering of B's views, according to Ms AB so that, in September 2018, B was unwilling to be responsible for making a choice, especially where that choice might be seen to affect her sisters but was clear, at that time, that she wanted to spend time with both of her parents and not to have to wait a week to see either of them.
4. Until about August 2019, the evidence suggested that the older children loved their father and missed him and wanted, at least, to spend time with him.
5. Whether B or C, at the present time, want to spend time with their father is not clear.
6. The weight that should be given to such views is tempered by the evidence of Dr K relating to the influence that the father has had on the children's views and to a consideration of the evidence of the way that the children have behaved in the past under the influence of the father.
7. In this case, the children's views, as previously stated, do not coincide with an objective consideration of their welfare and what is in their best interests.

the nature of the relationship of the child with:

(i) each of the child's parents; and

(ii) other persons (including any grandparent or other relative of the child);

1. I accept the evidence of Dr K that these children had, as at April 2019, an enmeshed and idealised relationship with their father.
2. Before about September 2017, the children had a close and loving relationship with their mother. Even after that time, as is evidenced by B's emails to the mother in January 2018, and the fact that B went on holidays with her mother, that relationship had not broken down.
3. Having regard to the observations of D's teachers of her interactions with her mother in late 2017 and early 2018, which I accept where they conflict with the observations of the father, I do not accept that D's relationship with her mother had broken down. Rather, it is likely that either the father prevented D from continuing to see her mother, or that, under the influence of both the father and her sisters, D felt she was unable to continue a relationship with her mother.
4. Of the three children, it would appear to be C whose relationship with the mother was most damaged.
5. Since they have lived in the mother's care after 26 April 2018, they appear to have readjusted their relationship with her.
6. Despite the father's expressed belief that the children do not have a good relationship with his mother, the paternal grandmother, the evidence of their emails to her would suggest that they do. The children have been able to maintain that relationship in the mother's care. The paternal grandmother in an email to the father dated 13 January 2019, referred to spending time with the girls and being able to talk to the girls about the father.
7. Given the content of the father's more recent correspondence with his mother and his evidence in cross-examination about her, it is unlikely that, in the father's care, the girls will be permitted to have a relationship with her.
8. The correspondence between the maternal grandparents and the father in 2017 in relation to their efforts to see the children, and the father's refusal to allow them to do so, suggests that the children will not have a relationship with them if they are in the father's sphere of influence.
9. There was no member of the father's extended family with whom he said he had maintained a cordial relationship. Apart from the EE family, there is no evidence of any support network for the father. Hence there is no likelihood that the children will be able to maintain a relationship with extended family members if they are not in the care of the mother.

the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

1. Both parents have taken every conceivable step to ensure he or she spends time with the children and participates in their lives in every conceivable way.

the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. The father has not made any contribution to the financial support of the children since they have lived exclusively in the care of the mother.
2. In cross-examination, he said that the mother had taken $250,000 from joint funds and that she was using that money to provide for the children.
3. The mother deposed that, after commencing these proceedings, she transferred $229,102.83 from their joint MISA account to an account in her name. It was her unchallenged evidence that she left the same amount in two accounts, the MISA account and the Home Loan account, to which the father had access, for his use.
4. The mother deposed that, in correspondence, she has been told by the father's solicitors that he will not contribute to the support of the children until she returns the money to the MISA account.

the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. I accept the evidence of Dr K about the effect on the children should time with their father be re-introduced.
2. It is likely, based on past history, that under the father's influence, they will once again suffer the loss of their relationship with their mother.
3. It is also likely that their present relationships with their grandparents and the extended maternal and paternal family will again be lost.

the capacity of:

(i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. Dr K gave evidence about the need for a parent to give children a balanced developmental experience. He said:

...they have to have the capacity to succeed, they have to have the capacity to fail, they have to have the capacity to maintain relationships with people who like them and people who don't - that it's all a part of life's experience. That just because things aren't according to how you like them doesn't mean that they should be disavowed, dismissed, not be given any credence in the world. And the concern, of course, is that if the children grow up exclusively validated by a narcissist and first of all they need to mirror the narcissist so they can't differentiate themselves from that. They have to kind of constantly say how fantastic their father is in this situation. If they don't that would be potentially problematic. And so they become an extension of the environment in which they're validating the father, the father is validating them, and anything that doesn't fit with that needs to be treated with contempt.

1. Dr K said, that in the father's care, there is, for these children:

...a risk that they would develop in a manner where they would lack the capacity for a normal relationship with significant people in their lives whereby there would be a normal degree of ability to tolerate criticism, to tolerate disappointment, without being absolutely dismissive of, you know, the other - the other person be it a - in an intimate relationship, a peer relationship, a colleague and so on.

1. I do not accept that the father can provide for the children's emotional needs where he does not perceive their needs to be identical with his.
2. I do not accept that, in the care of the father, the children would be permitted to have relationships with anyone whom the father did not perceive to be entirely supportive of him.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. It is an important responsibility, for any parent, to ensure that the children's relationship with, and love for, the other parent, is supported and nurtured.
2. The father's unwillingness, or inability, to support the children's relationship with their mother has been amply demonstrated.
3. Despite the father's attitude towards her, there is no indication the mother has exposed the children to her own fears or concerns about the father's behaviour towards her and the children, or the ongoing court proceedings. Remarkably, the mother, with the help of the elder two children, has also managed to shelter D almost entirely from the father's behaviour.

any family violence involving the child or a member of the child's family;

1. Earlier in these reasons I have made findings about specific incidents where the father has perpetrated violence against the mother and against B.
2. The violence against the mother, in particular the two incidents of assault by strangulation, is serious and concerning.
3. The records kept by the children's schools note that both B and C have expressed concern about the father's anger.
4. Notes kept by teachers record that in February 2017 B was worried about going home to her father because of his anger and scared to go to camp and leave her sister with him.
5. On 1 March 2017, C's teacher recorded that C was shaking and crying and concerned about staying with her father when B was at camp.
6. The mother was referred to counselling with Ms UU by the Family Referral Service of the police. Ms UU deposed that the mother:

...presented with symptoms of trauma not uncommon in women who present with a history of DV - anxiety, depression, difficulty with eating and sleeping, hyperarousal and fear for the safety of herself and the children.

1. I am satisfied that the mother and B have experienced family violence and that C has been fearful of her father.
2. In August 2019 and more recently, C has expressed concerns about her father's anger.
3. I accept the evidence of Dr K that the father poses a risk of physical and psychological harm to the children.

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. It is likely that any regime that leads to the father having any access to the children will lead to further litigation.

1. These children cannot have an ongoing relationship with both of their parents, no matter how limited the relationship with one of them may be.
2. In circumstances where they must live with one parent, and have no relationship with the other, it is the mother who is most likely to meet their emotional needs and their relationships with extended family, peers and school communities.
3. The orders will provide that the children live with their mother and have no physical contact with their father.

1. The mother seeks an order that she have sole parental responsibility.
2. The father seeks equal shared parental responsibility.
3. The presumption that the parents have equal shared parental responsibility has been rebutted by the findings that have been made in relation to the father's perpetration of family violence. Thus the determination is one of the children's best interests.
4. The parenting decisions that need to be made for children, such as fall under the definition of major long term decisions, are serious and can have long standing consequences. They are defined to be:

major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:

(a) the child's education (both current and future); and

(b) the child's religious and cultural upbringing; and

(c) the child's health; and

(d) the child's name; and

(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

1. In relation to these children, there has already been an issue about B's surgery where the failure of the parents to agree has meant that the surgery did not proceed as scheduled. Also in relation to B, as has already been discussed, the father's direction to the treating doctor that he should not provide information to the mother except through her lawyers, although at the relevant time both parents had parental responsibility, is relevant.
2. In cross-examination of the father, it emerged that the children's dog had died in February 2019 and, despite extensive correspondence, some six letters having been exchanged between the solicitors up to the time of the resumed hearing, no agreement had been reached about how the dog's ashes were to be disposed of. The last letter from the father's solicitors to the mother's solicitors stated the father's position that he will retain the ashes until such time as he can "have a ceremony" with the girls. The mother had conveyed the children's request that they be permitted to scatter half of the ashes. The father in cross- examination said that he did not accept that the mother accurately represented the children's wishes. The dog's ashes remained in the father's possession when the proceedings were adjourned on 5 April 2019 with no resolution in sight.
3. A further instance of their inability to co-operate arose when the mother asked for the children's bikes in April 2018 after orders were made for the children to live with her and have no contact with the father. After protracted negotiations conducted by the solicitors, it was eight months before the bikes were eventually returned, just before Christmas 2018.
4. Even through the medium of their respective solicitors, they cannot reach agreement about the most basic matters.
5. The father's correspondence with the mother, as has been tendered in evidence before me, is of a volume and tone that is completely unacceptable. I do not accept his assurances that he now realises that and intends to modify his tone. It is not reasonable to require the mother to communicate with him or attempt to negotiate with him.
6. There is no possibility that these parents can make decisions together in a timely way.
7. The mother will have sole parental responsibility.

1. The form of orders sought by the mother was amended and on 3 February 2020 a copy of the amended Minute was forwarded to the father's solicitors
2. The mother sought sole parental responsibility; that the children live with her and spend no time with the father; that the mother be permitted to leave the Sydney metropolitan area with the children; permission to organise counselling for the children as needed and an order restraining the father from assaulting, harassing or molesting her or communicating with her in any form.
3. None of those applications was new.
4. By her amended Minute, the mother sought, in addition, an order restraining the father from approaching her or being within 50 metres of her and from being within 50 metres of her home and her workplace.
5. The mother sought injunctions pursuant to section 68B of the Family Law Act 1975 (Cth) restraining the father from assaulting, harassing or molesting the children; from initiating any form of communication with them; from being within 50 meters of their residence or their schools; from approaching within 50 meters of the children and from removing them from Australia. With the exception of the removal of the children from Australia, these orders largely replicate the orders made on 26 April 2018.
6. In the amended Minute she also sought an order in the following terms restraining the father from:

Causing any third parties, including but not limited to [Ms EE], [Mr EE] and [NN] from forwarding, sending, initiating or sustaining any communication in any form with the children or any of them on behalf of the father.

1. Also in the amended Minute the mother sought an order restraining the father from denigrating her to, or in the presence of the children or on social media including Social media service 2. She sought orders requiring the father to remove photographs of the children from any social media and ensuring, by adjusting the privacy settings, that any social media conducted by him is not accessible to the general public, including the children.
2. The mother proposed an order that she authorise the schools to provide the father with copies of the children's school reports and order forms for school photographs. By her amended Minute she withdrew her application for an order that she authorise the children's treating medical practitioners to provide information to the father about the children. She proposed an order that she be required to notify the father of any serious illness suffered by a child.
3. The mother sought the right to travel outside Australia with the children and to obtain passports for them without the involvement of the father.
4. She sought an order permitting her to provide a copy of these reasons and the orders to medical or counselling practitioners treating her or the children, the children's schools, the NSW police and the Department of Community and Justice.
5. By her amended Minute she sought an order that the father serve on Mr and Ms EE a copy of the portion of the orders relevant to them.
6. Some of these orders sought carry complications.

Section 68B order for the protection of the mother

1. An interim ADVO has been made for the protection of the mother. That matter is listed for hearing in March 2020 and whether the order will be continued or made final is not known.
2. Senior counsel for the mother submitted that, if the ADVO is not continued or made final, it is appropriate for an order to be made for her protection. The mother did not seek such an order if there were an ADVO in place for her protection.
3. Section 68B provides:

68B Injunctions

(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

(a) an injunction for the personal protection of the child; or

(b) an injunction for the personal protection of:

(i) a parent of the child; or

(ii) a person with whom the child is to live under a parenting order; or

(iii) a person with whom the child is to spend time under a parenting order; or

(iv) a person with whom the child is to communicate under a parenting order; or

(v) a person who has parental responsibility for the child; or

(c) an injunction restraining a person from entering or remaining in:

(i) a place of residence, employment or education of the child; or

(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or

(d) an injunction restraining a person from entering or remaining in:

(i) a place of residence, employment or education of a person referred to in paragraph (b); or

(ii) a specified area that contains a place of a kind referred to in subparagraph (i).

(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

1. I am satisfied, on all of the evidence that the mother is in need of protection.
2. I propose to make the order which the mother seeks pursuant to s68B but to make it a condition of that order that the operation of the order is suspended during any period when there is in force an ADVO made pursuant to the law of New South Wales.
3. The order will include the power of arrest pursuant to s 68C.

Restraint on the father's contacting the children

1. The mother does not seek to prevent the children from contacting the father by electronic or physical means.
2. The evidence establishes that they have sent him a volume of emails, texts and video footage.
3. The evidence also establishes that, despite such an order having been in force since April 2018, the father has been communicating with all of the children using electronic means.
4. As Dr K made clear in his evidence, the reality of modern technology and social media makes it impossible to prevent the father from initiating contact with the children if he chooses to continue to do so in breach of an order of the Court.
5. However, having regard to the nature of the material which the father has included in his Social media service 2 accounts, and the content of his most recent communication with B on 22 November 2019, I consider that it is appropriate to continue the order restraining the father from initiating contact with the children.
6. The children should be aware that the order has been made. How they choose to take the order into account is a matter for them.

1. It is clear from the evidence that Ms EE in particular has been active both in communicating with the children and in seeking to influence them, and the then DFCS, against the mother.
2. The involvement of their daughter NN in passing on messages to the children must have occurred, if not on their instructions, at least with their complicity.
3. Since the father denies that he has sought the involvement of Mr or Ms EE in communicating with the children, he suffers no detriment if the order is made.
4. It is appropriate that the orders sought by the mother be made.
5. The order will be separately engrossed.

1. The mother seeks an order requiring the father to remove any pictures of the children from his social media accounts.
2. I accept that B on 21 November 2019 asked the father to remove pictures of all of the children from his Social media service 2 accounts. I accept that both of the older children were upset by the picture of C posted by the father on that day.
3. In a letter dated 20 September 2019, the solicitors for the father advised the solicitors for the mother the father had not uploaded any photographs of the children since the appearance in Court on 19 September 2019 when the mother sought orders restraining the father's use of social media.
4. Although in that letter, on behalf of the father, there was a denial that he continued to upload pictures of the children to Social media service 2, it is clear that he has continued to do so, as recently as 19 November 2019 and has done so without the permission of the children.
5. I propose to make the order sought by the mother requiring the father to remove from any social media conducted by him, any photograph which includes the children or the mother.
6. I do not consider that it is either appropriate or necessary to restrain the father from conducting social media accounts, provided that he does not, in any media, post material which identifies the mother or the children.
7. The father will be aware of the provisions of s121 of the Family Law Act which provide that it is a criminal offense to publish or disseminate (including on social media) any account of these proceedings that identifies a party or a child or a witness. That prohibition extends to describing the children, or any of them, as his children where he, himself, is identified.

MOTHER'S APPLICATION TO DISCHARGE ORDER 9(b) MADE 26 APRIL 2018

1. At the commencement of submissions, senior counsel for the mother made an application to discharge Order 9(b) made by Justice Benjamin on 26 April 2018.
2. That order provided, relevantly:

That each of the parents is restrained from:-

...

(b) discussing any aspect of these proceedings (other than to inform the children of these Interim Orders) or the Apprehended Domestic Violence Order proceedings, or any criminal proceedings instituted against either party with or in the presence of the children or any of them.

1. After hearing submissions, I indicated that I would reserve judgment in relation to that application.
2. On 13 February 2020 I made the Order sought by the mother. My reasons are set out here.
3. When the Order was made on 26 April 2018, the children's situation was entirely unsettled. They had been living with their father with no contact with their mother. The effect of the orders was to summarily remove them from the father's care and place them with their mother, with no contact with their father. He was restrained from attempting to communicate with them.
4. Whether, as a result of a substantive hearing, the children would live with their father or live with their mother was unknown. It was then important to protect the children, to the extent this was possible, from knowledge of the views that each of their parents might hold about the other and from the stress of the litigation.
5. The substantive hearing has now concluded.
6. All of the evidence has been heard.
7. The father did not come to court on 11 February 2020 and, as a result, the matter concluded on that day rather than, as anticipated, on 14 February 2020.
8. The children are likely have some understanding that events have occurred in relation to the litigation. This is particularly so in relation to the two older children who are teenagers.
9. It is appropriate that they be told that the litigation has concluded and that judgment has been reserved. They should know that, until judgment is delivered, the Orders made 26 April 2018, with the exception of Order 9(b) remain in place.
10. Having regard to the evidence about the distress of both B and C arising from more recent communications from the father, it is appropriate that they understand that the Court has made Orders which restrain the father from contacting them, specifically Order 11 which provides:

Pursuant to s 68B(1)(a) of the Family Law Act 1975 (Cth) the father be and is hereby restrained from the following:-

(a) Assaulting, harassing or molesting the children or any of them in any way;

(b) Forwarding, sending, initiating or sustaining any communication in any form with the children or any of them;

(c) Causing any third parties, including but not limited to [Ms EE], [Mr EE] and [NN] from forwarding, sending, initiating or sustaining any communication in any form with the children or any of them on behalf of the Father;

(d) Entering or being within 50 metres of the children's home;

(e) Entering or remaining or being within 50 metres of the children's schools, presently being [Suburb F] Public School and/or [G School];

(f) Being within 50 metres of the children or any of them; and

(g) Removing the children from the Commonwealth of Australia

(h) Denigrating the mother:

• (iii) To or in the presence of the children; or

• (iv) On social media including but not limited to Social media service 2.

(i) Causing any third party from accessing the log in details of all social media accounts operated by him.

1. There is no person, such as a therapist, who has a relationship with all of the children to whom the responsibility to tell them of the present position could be delegated.
2. The mother is the only person who is in that position.
3. I am conscious of the fact that the mother did not ask the Court to discharge the non-denigration order made on 26 April 2018.
4. I am satisfied, from the whole of the evidence, that the mother will inform the children of the events of 11 February 2020 and the orders which have been made without denigrating the father.

I certify that the preceding seven hundred and fifty-five (755) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 25 February 2020.