Berry and Berry

[2007] FamCA 1497

FAMILY COURT OF AUSTRALIA

BERRY & BERRY [2007] FamCA 1497

FAMILY LAW – CHILDREN – Interim injunction against wife brings three children into contact with her partner continued

Family Law Act 1975 (Cth)

APPLICANT: Ms Berry

RESPONDENT: Mr Berry

INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon

FILE NUMBER: MLC 5204 of 2007

DATE DELIVERED: 22 October 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 19 & 22 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms H. Dellidis

SOLICITOR FOR THE APPLICANT: Robinson Gill

COUNSEL FOR THE RESPONDENT: Ms M. Mandelert

SOLICITOR FOR THE RESPONDENT: Moores Legal Pty Ltd

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms C. Corridon

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Cathleen Corridon Solicitor

Orders

1. That in addition to the time which the wife is entitled to spend with the children S born … November 1992, N born … March 1996 and M born … May 2002 pursuant to paragraph 3 of the Order made on 12 June 2007 the children spend time with the wife as follows:-

   (a)Each alternate Wednesday from after school until 7pm during school terms commencing 17 October 2007;

   (b)From 3pm on 25 December 2007 until 3pm on 26 December 2007;

   (c)Upon the wife providing the husband with not less than 21 days written notice that she elects to take such time, for one half of all school term holidays at times to be agreed and failing agreement then first half commencing at the conclusion of the last day of school.

2. That reference in this Order to commencement or conclusion of school or school term vacations is a reference to those times or dates gazetted for the school attended by the child S. 

3. That in the case of M, who is not yet of school age, or any child who does not attend school on an occasion where the wife is entitled to spend time with the child the wife collect that child from the residence of the husband at 2:30pm.

4. That subject to paragraph 5 of this Order paragraph 4 of the Order made on

   
   

   12 June 2007 continue in full force and effect and in respect of any other time which the wife spends with the children or any of them the wife be and is hereby restrained from causing, permitting or suffering the children or any of them to come into contact with Mr T. 

5. That the husband and wife do all acts and things and sign all documents necessary to participate and facilitate the preparation of an updated family report by Mr P, psychologist at the equal expense of the parties, such assessment to include an assessment of the children’s relationship with Mr T including if necessary a conjoint interview or observation session between the children and Mr T. 

6. That paragraph 5 of the Order made on 12 June 2007 be and is hereby discharged. 

7. That the parties and their legal practitioners attend a Conciliation Conference with a Registrar of the Family Court of Australia at the Melbourne Registry on

   
   

   18 December 2007 at 2:15pm AND IT IS REQUESTED that at the conclusion of such conference the Magellan Registrar convene a Trial Notice Listing to allocate the earliest available date to this matter having regard to the expected availability of a psychiatric assessment of the wife and the husband by

   
   

   Dr E or such other appropriately qualified person as is selected by the Independent Children’s Lawyer. 

8. Each party must exchange at least 14 days before the Conciliation Conference the following documents if relevant and not already exchanged:

   (a)the party’s three most recent taxation returns and assessments;

   (b)any superannuation documents for each superannuation interest of the party, including:

   (i)the completed Superannuation Information Form;

   (ii)for a self-managed superannuation fund, the trust deed and the last three financial statements;

   (c)for a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) for the three last financial years;

   (d)for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04 any Business Activity Statements for the 12 months ending immediately before the first court date;

   (e)for any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s memorandum and articles of association;

   (f)for any trust, the trust deed;

   (g)for any partnership, the partnership agreement;

   (h)a market appraisal of any item of property in which a party has an interest;

   (i)All documents containing evidence about:

   (i)the financial matters mentioned in the party’s Financial Statement (Form 13) and the Conciliation Conference Document completed by the party for the conference;

   (ii)financial contributions made at the commencement of cohabitation;

   (iii)any inheritances, gifts or compensation payments received during cohabitation;

   (iv)any purchase or disposal of property in the 12 months prior to and since separation;

   (v)any increase or reduction of liabilities since separation; and

   (vi)the value of any superannuation interest of a party, including the basis on which the value has been calculated and any documents used to calculate the value.

9. That each party exchange a market appraisal or valuation of any asset in dispute no later than 14 days before the conciliation conference.

10. That each of the husband and the wife do all acts and things and sign all documents and make all attendances necessary for Dr E or such other appropriately qualified person as is nominated by the independent children’s lawyer to undertake a psychiatric assessment of the husband and the wife and such assessment be at the equal expense of the husband and the wife.

11. That where this Order provides for the cost of psychiatric assessment and a further updated family report to be shared equally between the parties, each party must deposit with her or her solicitor 14 days prior to the interview for any such assessment an amount equivalent to one half of the estimated cost of the assessment, such monies to be paid out upon production of an invoice for same.

12. That until further order the husband and the wife by themselves their servants and or agents be and are hereby restrained from:-

    (a)Denigrating the other parent or their partner;

    (b)Discussing the allegations in these proceedings –

    to or in the presence or hearing of the children or any of them. 

13. That until further order the husband and the wife by themselves their servants and or agents be and are hereby restrained from permitting the children or any of them access to any document filed, prepared or produced in relation to these proceedings. 

14. That all extant interim applications be otherwise dismissed. 

15. That the court certifies that it was reasonable for the parties to employ an advocate.

16. That my reasons for judgment this day be transcribed as and when delivered and a copy made available to each of the parties.

17. That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5204 of 2007

MS BERRY

Applicant

And

MR BERRY  

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. These proceedings concern the children, S, born in November 1992, N, born in March 1996 and M, born in May 2002.  Last night after 6 pm, I pronounced orders in this matter which continued a restraint on the mother to ensure that her partner, Mr T, does not come into contact with the children during time which the children spend with her.  It was too late for me to then give reasons for my decision and I said I would do so at a later time. These are those reasons. 

2. The parties to the proceedings are the wife, Ms Berry.  She is 37 years old.  She is not employed outside the home.  Since separation she has used part of the parties' capital to acquire an unencumbered interest in a property at L in Victoria.  It is a three-bedroom residence where she lives with Mr T who is 38 years old.  He was working until last December 2006 in the automotive industry but ceased work at that time due to a respiratory problem.  He is on a Newstart benefit.  He has two children.  C is a child with whom he spends time regularly.  C is 11 years old and he spends time with Mr T and the wife each alternate weekend from after school on Friday until Sunday evening. 

3. The husband is Mr Berry.  He is 49 years old.  He last worked in December 2006 in the building industry.  Late last year he was hospitalised with ulcerated colitis and he has since been living off investments and capital.  He is residing with the boys in the former matrimonial home, being the property at

   
   

   B.  He has not repartnered. 

4. S is a student in year 9 at B High School.  N is a student in grade 5 at B Primary School and M attends Preschool. 

5. Very briefly, the parents were married in March 1989 and separated in October 2005 when the mother took the children and resided in emergency housing accommodation.  Later in 2005, the boys commenced seeing their father on two nights per week.  The wife's relationship with Mr T commenced in December 2005.  In January 2006, the mother left emergency accommodation and rented a house for herself and the children.  In February 2006, S, N and M met Mr T and the husband and the wife commenced a shared-care regime in relation to the children, with the children living, as I understand it, week about.

6. In May 2006 Mr T moved into the wife's residence.  I am not sure where he was living prior to that time.  His parents live in Queensland.  He has a sister in the Melbourne area and my impression is that he does not have any significant financial resources. Once Mr T was residing in the wife's residence, Mr T spent time with his son, C, from Friday to Sunday evening.  C lives with his mother.   

7. By July 2006, there had developed significant tension between the older boys, S and N, vis-a-vis Mr T. S and N left the wife's home and commenced to reside permanently with the husband, seeing the wife on alternate weekends.  M also returned to the husband's home and the wife maintains that she saw M more or less daily by visiting him at kindergarten, picking him up from kindergarten or the husband dropping him off to her in the afternoons.  The mother continued to spend time with the parties' sons on a weekend basis. 

8. On 26 March 2007 the wife did not return M to the husband.  The older boys were returned to the husband's household.  By mid-April 2007 the older boys, S and N, were refusing (or at least not attending) to see the mother or M on alternate weekends. 

9. I should mention here that there are proceedings for final alteration of property interests and there has been some distribution or use of capital by each of the parents. On 13 April 2007, the wife caused a caveat to be lodged over the former matrimonial home in which the husband and children reside.  The next step in the property proceedings is that the parties will attend a conciliation conference in mid‑December 2007. 

10. In late April the wife alleges that she received the following letter from the husband.  It appears as annexure “CSB2” to the wife's affidavit sworn 9 May 2007 and it reads as follows:-

    You have kidnapped my son.  You are asking for trouble, brainwashing the mind of a little five-year-old boy.  I haven't seen him for five weeks.  You should be ashamed of yourself.  I have never denied you from seeing him.  It was only a few days ago he said to me, "Daddy, if you love me - and [S] and [N] love me.  I want to come home."  You must have told him more rubbish.  You are brainwashing him - playing with his feelings.  You're a hopeless human being, as always - only do what other people tell you to do.  You don't have a mind of your own.

    The way you're going, they will all resent your permanently one day, and it will be permanent, irreversible, irreparable, everlasting.  You will lose their total respect and you will have the respect of no-one.  So far everything that I have said has always been right.

    It's better if they are all together for their own sakes, own happiness, own sanity.  It's not about your happiness but theirs and only theirs.  You need to release him and I will see to it that you will see them all together more often. 

    They are three brothers and deserve to live together, share their happiness and joys together, play together, learn from each other, have dinner and breakfast together et cetera.  A little paper will not mean anything if it comes to matters of the heart.  [M] will eventually see, if he doesn't see it already, and find his own inner strength.  You will never be able to stop him from living together with his brothers.  The only thing that will become of this is that you will lose a little more of your son's respect, if there is any left at all.

11. The mother applied for a domestic violence order pursuant to the Crimes Family Violence Act.  It was returnable in the Magistrates Court on 1 May 2007.  It arose out of an incident in which the father brought the two older boys to the wife's residence on 18 April 2007 and was apparently abusive and unpleasant towards her.  The boys also approached the mother and ripped up some photos. 

12. Whilst the parents were at court, there was an agreement reached between them that the husband would see M until 8 pm that night.  That time occurred.  The father also spent time with M between 4 May and 6 May 2007 but at the conclusion of the arranged time he failed to return M. 

13. On 10 May 2007, the wife filed an application in this court seeking equal shared parental responsibility, that the boys live with her, that the husband's time be reserved and orders effecting a final alteration of property interests.  On 12 June 2007, the husband filed a response seeking that the boys reside with him.  Shortly prior to this time, the mother alleges that she received a letter from S in the following terms:

    You are fighting a losing battle, mum ([N] and I call you [by your first name] now at home) and you are not just fighting dad but me and [N] also.  We have rights too, you know. 

    We have ripped up most of your photos and frames and in all albums.

    This is the kind of trouble you are causing.  You made your mistake.  Now live with it.  Don't make [M] pay and all of us pay for it.  You will never win.  We will never stop until [M] comes back home and goes to school with us and we see him every night for the rest of our childhood lives.  You will never win in court either.  Dad hired top guns.  Our holiday money to go to Europe will pay for that.  It will cost us around $50,000 just for [M] but you will need to pay around the same amount of money to your solicitor because we will fight you to the end.  Even if you win, we will take you to court again and again.  The fight has not even begun yet and we will all suffer pain for the rest of our lives. 

    I hate you more today and for more reason now.  Our trip to Europe would have been a lifetime experience for all of us, including [M]. You have ruined everything, so F you for the rest of your life.  You have no respect for us.  I now resent you, with no respect remaining for you as a mother. 

    Me and [N] want our brother back.  As the years go by, he will slowly resent you for spoiling his childhood with dad and his brothers (we will tell him everything over and over again).  Even if you win in court, [N] and I have decided that we never want to see you again.  Dad will pick [M] up from your house, bring him home, and we will see him then, but we will refuse to see you forever.  No judge, lawyer or police can ever enforce that.  We will refuse.  Give [M] back to us.  You cannot win either way.

    You will never be invited to our birthdays, our weddings, our holidays.  You will never see your grandchildren, their birthdays, never attend any function at our home.  Only dad will be invited, and the way you are going, you will be his total enemy.  He will be more valuable to you if you were his friend (for a healthy future, he may one day accept you in the same room a little).  Use your brain and stop listening to others.  You will never win.  We will never give up on [M].  Give him back.

    Instead of us living a normal life, you have turned all our lives upside down.  I'm almost an adult now and I know what you during your marriage with dad.  He loved you with all his heart and worked hard for our family and you betrayed him for [Mr T]?  I will stand up in court and so will Nonno.  Me and [N] will stand up with dad 100 per cent for the rest of our lives.  Dad never hurt you.  You're a liar.  He loved you and always respected you and our family.

    I hate you for calling the police and all your lies.  You did that so you can keep [M].  I will tell the judge on Tuesday and so will [M] and Nonno.  Go to the courthouse on Monday and undo that, you, or we will all be against you.  You only did that for [M].  You're a liar. 

    Daddy is sick now for the rest of his life because of trauma, and I hate you for that on its own. 

    [Friends] have invited us to a 21st in a hall and we want [M] with us on Friday, 22nd.  GIVE MY BROTHER BACK TO US.  Leave things the way they were, everyone was happy then, or things will get worse and ugly.

    Stop the pain.  You will never win.

    Stop now before it gets really ugly and too late.  You lost all your photos the other day (it's too late now) because you put your name back on our title.  I hate you. 

    It's not too late to reverse what you've done so far.  Please give [M] back to us.  It will happen in the end anyway. 

14. The letter is not signed; it is typed.  It contains some spelling errors.  S was 14 years old when it was allegedly written by him. 

15. Then the husband instituted proceedings seeking an intervention order against the wife on 8 May 2007.  Those proceedings were returnable and consolidated with the wife's application for an intervention order.  When the matter came before court, on a date of which I am not certain, it was agreed between the parties that the wife would spend time with the children each Sunday from 10:00am till 5:00pm in the absence of Mr T.  That has essentially been the case up until now. 

16. On 12 June 2007, the husband filed a form 4 Notice of Risk of Child Abuse alleging sexual and physical abuse of M by Mr T.  He alleges:-

    1.  Sexual abuse of [M] by the wife's partner, [Mr T], between (at least) March and May 2007 by touching [M]'s penis several times and him asking [M] to touch his penis. 

    2.  Physical abuse of [M] by [Mr T] on (at least) 18 April and 1 May 2007. 

17. The husband has tendered statements made by S, N and his sister, Ms P Berry, in which they allege that on 7 May 2007, M had told his older brothers and his paternal aunt that Mr T had touched his penis.  Those police statements are exhibits H2, H3 and H4 respectively. M did not make the statement to the husband. 

18. On 12 June 2007, a case management conference was conduced by the court.  Orders were made on that day, by consent, in relation to the children which provided that the husband and wife have equal shared parental responsibility, the children live with the husband until further order, until further order the children spend time with the wife from 10 am to 5 pm each Sunday and from 10 am to 5 pm on eight consecutive days during the July school holidays.  The wife's time was to be conditional upon her partner, Mr T, not being present.  The parties agreed to get a report from the Mr P, psychologist, to stand as a family report.

1. On 12 June 2007, these proceedings were accepted into the Magellan list of cases which is a highly resourced list of cases run by the court to deal with cases of serious physical abuse and sexual abuse of children.  As part of the arrangements for the Magellan list, the Department of Human Services (“DHS”) investigated the matter and prepared a report dated 12 September 2007.  The report refers to extensive interviews with the parents, Mr T, the children and M's kindergarten teacher.  

2. The report of DHS is on the court file and runs to 13 pages.  It concludes that there is no information to suggest that M had been sexually abused by Mr T.  M was interviewed on three occasions and did not make any disclosures or particularise any protective concerns. DHS has not substantiated the allegations.  It states that there are no significant protective concerns for the children residing in either parent's care, although the Department has decided to substantiate emotional harm perpetrated by the father to the children. 

3. DHS is of the view that the husband has enmeshed the children, particularly the elder two children, in the conflict between himself and the wife and his very significant disappointment at the breakdown of his marriage. DHS is of the view that the husband has unduly influenced the children against their mother and has limited insight into the emotional impact this has had on the children.  The report from DHS confirms that all three children state that they want to live with the husband.  However, there are concerns that the husband may have influenced them. 

4. The wife made allegations against the husband of domestic violence and rape during the marriage, all of which were denied by the husband.  However, the DHS report refers to a report from Eastern Domestic Violence Outreach Centre substantiating that the wife attended and received support from February 2005 to May 2006.  The sexual abuse allegations and conclusions appear in the report as follows:

   Sexual Allegations

   It is assessed that there is no information to suggest that [M] has been sexually abused by Mr [T].  Protective Workers interviewed [M] on three on occasions however [M] did not make any disclosures and did not particularise any protective concerns pertaining to Mr [T].  It is highly likely that these allegations are malicious and that [M] has been led into making theses (sic) disclosures.  When interviewed [M] presented as very quiet and withdrawn, however was very articulate in his responses when asked if he would like to see his father and his mother.  It is of a concern that [M] appeared comfortable and happy to discuss his father, mother and siblings, however when Mr [T] was raised in conversation [M]appeared to “shut down”.  [M] would lower his head, limit his responses to non-verbal communication and often provide no response to questions at all.  It is highly likely that [M] has been influences by a third party in regard to his relationship with Mr [T]. 

   Further to this, SOCAU and the CIU have investigated the above allegations, however the writer has been advised that the case is being closed and that there will be no charges for Mr [T], as there is insufficient evidence to support the above allegations. 

   During DHS investigations it was alleged that [M] had disclosed to Ms [K], Director at […] Preschool, that Mr [T] inappropriately interfered with him.  When questioned Ms [K] stated that [M] did not make any disclosures of such nature to her.  Ms [K] stated that whilst [M] was attending the preschool no concerns where identified regarding [M]’s presentation and that at no time she was concerned about [M]’s interaction with Mr [T] and [the wife] when dropped off and picked up from the Preschool.  Ms [K] advised that [M] did not exhibit any sexualised behaviours, that he was easygoing, polite, happy and that he interacted appropriately with the other children.  Ms [K] stated that [M] would always attend preschool with lunches and would always be appropriately dressed.  Ms [K] stated that Mr [T] and [the wife] would always be appropriately concerned and would always enquire as to how [M] was settling in and was interacting with the other children. 

   During the investigation concerns was raised by [the wife] in regard to [M] exhibiting possible sexualised behaviours. 

   Research shows (Toni Cavanagh Johnson, PH.D, Licensed Clinical Psychologist) that natural and expected sex and sexuality for preschool children are related to curiosity and exploration.  Preschoolers are exploring the world, how it smells, tastes, works, sounds and feels.  Everything to the genitals, breasts, differences between males and females and procreation are subjects of preschools exploration and curiosity.  This interest comes and goes and most often the parent’s attitudes and values will influence the child’s behaviours.  There will be differences to the child’s interest and they will be influences by the amount of exposure that the child has had to adult sexuality, nudity, explicit television, video and pictures. 

   During DHS intervention concerns were raised in relation to [M] allegedly watching an inappropriate film for this age whilst in his father’s care, (Babel, an adult drama). 

   Interviews with [N] and [M] (sic) [S].

   When interviewed [S] stated he did not like Mr [T] and felt uncomfortable in his presence, however could not particularise any events or provide further clarification as to why he felt this way towards Mr [T].  [S] did not disclose any information that would suggest there are protective concerns in relation to his father, mother or Mr [T].  [S] presents as very confident, articulate and clearly has a strong attachment to his mother and father.  However there are concerns that [S] presents as [a] young person who internalises his emotions. 

   When interviewed [N] presented as very articulate, provided positive information about both his mother and father an appeared quite protective of his family.  [N] stated he wanted to remain in the full time care of his father, however wanted to remain in contact on a regular basis with his mother.  [N] stated he did not like Mr [T] and felt uncomfortable in his presence, however could not particularise any events or provide further clarification as to why he felt this way towards Mr [T]. During the interview [N] did not disclose any first hand information that would suggest there are protective concerns in relation to Mr [T].  [N] did raise some concerns, however advised that he had obtained the information in relation to Mr [T] via a third party such as his Father. 

   Both [N] and [S] have described that they feel “uncomfortable” and “weird” with Mr [T] and that their father is more familiar to them.  The writer understands that [N] and [S] have resided predominantly [in] their father’s care and only recently have met Mr [T].  Further to that [the father] and Mr [T] have competently different personalities.  [The husband] presents as very passive and calm, however Mr [T] presents as energetic, loud, overstated, passionate and animated.  Subsequently there is a significant contrast between [the husband]’s and Mr [T]’s parenting style. 

   In acknowledging [S], [N] and [M]’s right to stable care arrangements, the writer has also considered the right of the children to reside in a supportive environment that ensures their safety, wellbeing and development and one where their carers consistently act in their best interest.  It is also assessed that while the children have the right to self determination in relation to where they reside, the situation is further complicated by the children being involved in the family conflict and being influenced against their mother and Mr [T]. 

   It is assessed that both [S] and [N] have been significantly affected by the Family Court proceedings and that this has had a significant emotional impact on them.  It is assessed that counselling would be beneficial for the children, that the children’s exposure to inappropriate activity in relation to [the husband] and [the wife]’s relationship breakdown is not in their best interest and that further exposure to conflict of this kind should be prevented. Both children expressed a strong desire for the court proceedings to finish and for “everyone to leave each other alone and move on”. 

   Domestic violence between [the husband and the wife].

   During DHS intervention [the husband] denied allegations that he used verbal or physical abuse with [the wife] and stated that he had never hurt his wife and that she was the one inflicting emotional abuse upon him.  [The husband] states that he felt that [the wife] was not “acting like a wife”.  [The husband] stated that his was of dealing with conflict with [the wife] was to ignore her or do nothing, as “no matter what he did, he would never win”.  [The husband] denied that there was ever any domestic violence or rape in his relationship with [the wife]. However the information EDVOS has provided DHS with is consistent to the claims that [the wife] has made when interviewed by Protective Workers.  During DHS intervention both [S] and [N] did not disclose any information pertaining to domestic violence prior to their parents separation. 

   [The husband]

   [The husband] has stated that he is seeking sole custody, as he does not feel [the wife] has the capabilities to care for her children appropriately and protectively and does not believe his children are safe in the care of Mr [T].  [The husband] has stated that he believes his children wish to remain in his full time care and maintain contact with their mother. 

   During the initial interview [the husband] was very focused on issues pertaining namely to [the wife]’s desire to attend nightclubs regularly and the way in which [the wife] placed significant importance on her physical appearance whilst they were married.  It is assessed that [the husband] is finding it difficult to accept that [the wife] has moved on and is now involved in a new relationship. 

   Throughout DHS intervention [the husband] has demonstrated minimal insight into the emotional impact the court proceedings are having on the children and was very insistent that the children are happy.  It is assessed that [the husband] has been encouraging the children’s involvement in the court proceedings and the custody battle between their parents, unduly influencing the children against their mother and he has appeared to be more concerned about losing his money and home throughout the court proceedings, than of the emotional impact the proceedings have had on his children. When challenged about the impact on the children by their involvement in the conflictual relationship between their parents, [the husband] demonstrated limited insight and became very defensive stating that he believes that the Protective Workers are putting the responsibility solely on him and are siding with [the wife]. 

   [The wife].

   During DHS interventions [the wife] has been very insightful and expressed appropriate concerns regarding the impact the custody dispute has had on her children. [The wife] stated that she is aware of the importance of keeping her children sheltered from these proceedings as much as possible.  [The wife] has denied the sexual allegations against Mr [T] regarding his interaction with [M] and has stated she is confident in her and Mr [T]’s ability to appropriately care for and protect her children.  [The wife] acknowledged that she may have to chose between her children and Mr [T] and advised that she did not know what to do as her children are her life however she is trying to build a life with Mr [T].

   Initially [the wife] stated that the ideal outcome from the Family Court proceedings would be a shared care arrangement as the children need both their mother and father, however during DHS intervention [the wife] stated that she would like sole custody of the children, as she feels [the husband] is making the situation impossible and is trying to ensure Mr [T] cannot have access with the children. [The wife] further stated that she is concerned about the children’s wellbeing in their father’s care due to emotional harm they have suffered and the recent family conflict they have been exposed to. 

   Conclusion

   It is assessed that there is insufficient information to support the allegations made in relation to [M] being sexually abused by Mr [T]. Therefore the allegations cannot be substantiated.  Further to that, it is assessed that there are no significant protective concerns for the children residing in wither of their parents care, however throughout DHS intervention a decision was made to substantiate emotional harm perpetrated by [the husband] to his children.  All children have identified that they wish to reside with their father and have no contact with Mr [T] however there are concerns that the children may have been influences by their father in regard to their opinion of Mr [T]. 

5. Before me, the husband through his counsel informed the court that he regarded the interview with the DHS worker on 25 August 2007 to be "terrible".  It was said that it was conducted in a manner which he perceived to be an "anti-man" bias; that the worker, Ms F, effectively told him that all of the children wanted to live with him but then went on to regularly disagree with him, interrupt him, fail to explain or clarify matters which she ultimately formed conclusions about in the report. 

6. He complains that at one point he stated to the DHS worker that the wife had started wearing short skirts, dyed her hair blonde and asked if they could each start to see other people, to which the DHS worker is said to have responded, "Poor thing (the wife).  Do you blame her?"  The children were not present at this point. 

7. The husband’s perception is that the DHS worker was unwilling to explore any criticism by him of the mother and that the protective worker had already decided, prior to seeing him, that the mother was the victim and the only victim of the breakdown of the marriage and that his grief received no apparent recognition. 

8. Mr P has also seen the children and the parents and Mr T.  There is one report and that is dated 13 September 2007 and runs to 21 pages.  His attendances upon the family were on 30 August 2007.  It is apparent that Mr P did not have available to him the police records in relation to certain sexual offences with which Mr T was charged and acquitted in 2004.  There is a letter from Mr P dated 21 September 2007, and that also forms part of his conclusions in this case.  Mr P draws the following conclusions:-

   CONCLUSIONS

   This is obviously an immensely complex case, in which there are many allegations and counter allegations.  To a significant extent, these may well reflect the different perceptions of each of the parties, and particularly so surrounding their relationship and the reason pertaining to their separation. 

   According to [the husband], [the wife] has had long standing difficulties, has been emotionally unsettled within herself, has struggled with her identity, a sense of belonging, what she wanted from life and whether she wanted to commit herself to the family or live a single lifestyle.  He is obviously struggling very significantly with the separation, he is very obviously depressed and extremely anxious, and even though he told me that there is longstanding difficulties with social avoidance and panic, the breakdown of the marriage, the aftermath and the allegations pertaining to [M] have clearly taken a significant toll.  Nowhere was this more evident than insofar as his interaction with the children over the course of the day, and in particular in my office where he was very clearly preoccupied with own thoughts and spent most of the session with them simply staring out the window whilst they entertained themselves.  [The husband] clearly believes that [the wife] was involved in a relationship with Mr [T] prior to their separation, that she has been extremely ambivalent about the reconciliation and harbours much regret, but added that there is no possibility of reconciliation now. 

   [The wife] however gives a very different perspective.  Not only does she not convey any sense of regret, but clearly indicated that she had no intention or wish for reconciliation, and would not under any circumstances return to a relationship with [the husband] after all the years of emotional and physical abuse that she endured.  She denied categorically having had a relationship with Mr [T] prior to separation, but added that she escaped from the house when she could in order to give to herself respite from [the husband]’s continuous verbal and emotional abuse of her.  According to [the wife], she has had years of domestic violence counselling, she has left previously and spent time in a refuge, that she is no longer able to or prepared to tolerate the abuse, and that when she finally left with the boys, this was with the assistance of her domestic violence worker.

   Contrary to the suggestions by [the husband] that even in the period post separation they were talking about reconciliation and spending time together, [the wife] described the same time as being a period when she was pursued and harassed, and that only when [the husband] discovered her relationship with Mr [T] did this behaviour towards her curtail, but was replaced by the active embroilment of the children into the dispute and the sharing by him with them of his negative views, distortions and false beliefs. 

   [The wife] is particularly concerned by the way in which the children are being influenced and affected by their father, his feelings about her and his mental health problems.  She described having been the children’s primary carer, having been devoted to them, but that [the husband] has at every opportunity sought to frustrate her relationship with them. My observations of the children in the company of their mother was unequivocally positive, and even when seen individually, the children all conveyed a sense of how they miss their mother and how they wanted more time with her, notwithstanding that each expressed concern about Mr [T] and his behaviour. 

   There are many aspects to this dispute that can only be unravelled through a testing of evidence, and it is extremely difficult to make any unequivocal recommendations given the uncertain nature of some of the allegations and counter allegations.  Turing specifically to the issue of the alleged sexual abuse, it is always difficult to obtain any type of clarity in a retrospective assessment such as this, and greatest emphasis should be placed upon the early disclosure interviews, that were hopefully completed at a high professional standard.  What was significant from my perspective was that [M] was unable to give me anything approximating a free narrative of what allegedly occurred with Mr [T], and in my general conversation and discussion with him, that his communication style was not free flowing or forthcoming, that generally speaking he needed very leading and direct questions, and that his vulnerability in this regard very obviously creates some difficulty with regards to extracting from him clear and objective information about what did or did not happen.  I also draw attention to the fact that [M] himself appears not to have made disclosure statement as such, but rather behaved in a manner that was of concern to his father, that was shared with his aunt, who in turn interviewed him in a manner that given my experience of [M] would suggest that a more coercive style would be necessary in this kine of interview. 

   Mr [T] vigorously denied having interfered with [M], but that there is the allegation of him having interfered with his own daughter, which no doubt fuels the anxieties of all concerned.  Even though acquitted, there is a certain innuendo that cannot be ignored.  However, objective consideration of what [M] has said and the way in which the matter has been presented makes it very difficult to find unequivocal support for the allegation that [M] has been abused, as compared to objective assessment revealing that there are other explanations for why [M] has said what he has and how the alleged abuse has come to be constructed, albeit that one of the possibilities is clearly that he has been abused, and in the manner alleged by [the husband]. 

   The difficulty insofar as this kind of disclosure is that objective consideration and assessment must reflect upon whether other possibilities for the alleged abuse are forthcoming, and there is at least a possibility that this allegation is a false positive. 

   Again, I emphasize how difficult it is to draw any retrospective unequivocal conclusion, and that very careful consideration needs to be paid to the initial interviews either by protective workers or police.

   From any perspective, there cannot be satisfactory closure to this dispute.  There are numerous allegations and counter allegations, and inevitably there will need to be some testing of the evidence. Insofar as this assessment, it would certainly be helpful to have the opportunity to spend more time with the family, interview the children and their mother together with Mr [T], have access to other mental health professionals who are involved, cross reference and check allegations, and complete home visits.  However, on the basis of the information available at this stage, I think that there is not doubt that the children should be seeing their mother, and should be seeing more of her, that at the very least they should be seeing her each alternate weekend, albeit that the issue of Mr [T] creates a certain difficulty.  Whilst one option is to obtain an absolute undertaking on the part of both [the wife] and Mr [T] that Mr [T] will not be left alone or unsupervised with any of the boys, the reality is that there is a heightened level of anxiety about him, and this will prove to be a difficult issue, at least in the short term for the children.  Nonetheless, as a way forward, and pending further assessment, an option may be for [the wife] to spend more time with the children, even if Mr [T] is present, that there be a collection from school on a Friday and a return to school on a Monday morning.  In the event that the Court decides that Mr [T] should not have contact with the children until the matter is further tested, I would still encourage as a matter of priority that [the wife] spend time with the children and that Mr [T] make the necessary arrangements to reside or be elsewhere during that time.  The children are clearly missing their mother and struggling as a consequence of her absence in their life.  I would also very strongly encourage [the husband] to obtain whatever further psychological or psychiatric assistance he needs in order to help him through this difficult phase. 

   Ultimately, the children should continue to reside with their father, at least in the short term until matters ate further assessed and the matter heard in its entirety.  There should be no confusing however that the children have an excellent relationship with their mother, and their interaction with her and their individual portrayal of her fits very much in accord with how she described her relationship with them.  I am left confident that she was their primary carer and that as a consequence of the breakdown of their parent’s relationship and her relationship with Mr [T], that their welfare has been compromised as a consequence of not having as much time with their mother as they otherwise should. 

1. A week later, the letter of 21 September 2007 was written to the independent children's lawyer and reads as follows:-

   Thank you for your letter of 20 September 2007.  As mentioned in my report, it is difficult to make a retrospective assessment of allegations of sexual abuse and that the initial interviews are extremely important.  For this reason, the DHS report is extremely helpful; it clearly does not substantiate the allegations of abuse, and is complimentary to my suggestion that this may be a false positive allegation of abuse. 

   I however draw your attention to some of the more practical problems associated with this matter, not the least of which is where [the wife] lives, and the need for the children’s need for continued contact with their school and their peers and how difficult it will be to intervene in a different manner given the tyranny of distance.  I note too, that the boys state clearly that they wish to reside with their father. 

   From my perspective, given the DHS report, I am much more comfortable with recommending that the children do spend time with their mother and that at the very least she collect them from school on a Friday afternoon and return them to school on a Monday morning, and that the restrictions around Mr [T] being present be reconsidered.  It would obviously be sensible for [the wife] and Mr [T] to act more “conservatively” with regards to the children.  I also draw attention to my observation of the children in the company of their mother, how positive and significant this was and this too seems to fit very much with the more extensive assessment completed by DHS. 

   Inevitably this is a matter that needs to be managed and reviewed.  I am very clearly of the view that the children should be spending significantly more time with their mother than they are at present.  Concerns raised by DHS that the children are being emotionally abused because of the father and his ability to accept that separation or his contribution to it, will need to be taken into consideration as will the children’s wishes. 

   On an interim basis however there is every indication to strongly suggest that the children need to be spending time with their mother.  I think the matter would be worthy of significant review in the event that [the wife] was able to live locally.  The tyranny of distance is a significant obstacle to any substantial change to the current arrangements.  I would add that there should be provision for holiday and other extended contact as appropriate.  I would obviously prefer an opportunity to review this matter in its totality prior to any final hearing.  

2. I permitted the independent children's lawyer to call Mr P for the purpose of him giving further evidence and being cross-examined to a limited extent by the parties.  This was because the independent children's lawyer informed the court at the commencement of the contested interim hearing that she had recently spoken with the children and had been informed by the two oldest children that in the event that orders were made which permitted Mr T to be present when they spend time with their mother, they would "run away".  The children repeated to the independent children’s lawyer that they do not like Mr T but with no more specifics than they had previously used when speaking with the DHS protective worker or with Mr P. 

3. Mr P gave some evidence by telephone.  Prior to that, Mr P had communicated a view to the independent children's lawyer, and she in turn to the parties, to the effect that Mr P had not assessed Mr T with the children and was therefore unable to form a firm view.  However, his suspicion was that whilst the children's relationship with their mother was so fantastic and their relationship with her was so good, the children may not in fact run away if placed in a situation where Mr T was permitted to be present with their mother.  However, he agreed that there was no way of really knowing what damage might be done by putting the children in the presence of Mr T and whether that could in fact fracture the relationship between the mother and the children, given that the children have a sense of loyalty to their father.  He could not exclude the possibility that they may run away. 

4. Mr P expressed a preference for Mr T to be present whilst the children spent time with their mother in the hope that the mother would approach the matter on a "conservative" or "softly-softly basis". This would mean that Mr T was not to be injuncted from living at the mother's home during the alternate weekend time. 

5. Mr P said that he would like to assess Mr T and the children and would be available to do so on any Friday in November.  It was communicated that Mr P's view was that the mother's priority should be the children but that if they reacted in the way that the two older children had indicated to the independent children's lawyer they would act - that is, by running away - it may be that the mother has to make a choice between continuing her relationship with Mr T and seeing the children on any extended basis. 

6. Mr P assessed the sexual abuse risk vis a vis Mr T and the children as "low", particularly if the mother undertook not to leave the children alone with Mr T. 

7. Mr P conveyed, through the independent children's lawyer, his concerns about the husband, about the husband’s relationship with the children and his apparent inability to come to terms with the final separation between him and the wife and the wife's new relationship. 

8. When Mr P was cross-examined.  The opinions he expressed were consistent with those that the independent children's lawyer had last conveyed to the parties. He confirmed that the boys' relationship with the wife was unequivocally positive and that she represented a person on whom the boys could rely and be trusted by the boys. 

9. Mr P said that in the event that the mother made a commitment to the boys that she would manage the situation with Mr T so that they would not be upset and she proceeded to do so, the boys were likely to accept that. 

10. Mr P considered that Mr T may make himself scarce, remove himself from the home, and that the children being reintroduced to Mr T on this basis would permit of a relationship which, if interactions were observed by Mr P on one Friday in November, would permit him to gauge some sense of what the boys' relationship with the children is actually like.  Mr P said his single meeting with Mr T left him with the impression that Mr T was a mature, reasonable adult.  Mr P was of the opinion that it was extremely likely that the husband and the husband's family were very anxious about the boys spending time with the mother and Mr T together and that such anxiety was likely to be communicated to the boys. 

11. It is apparent from Mr P's responses in cross-examination that he sees the preferable way forward, from his point of view, to involve the children being reintroduced to Mr T and him being given an opportunity to observe the interaction, probably without notice, and after Mr T had had an opportunity to build up some rapport with the boys.  Mr P openly admitted that this was his view as a clinician who is required to provide forensic evidence in the case; it was not necessarily his view of what orders would be in the best interests of the boys.  Even if it had been, the amount of evidence which Mr P has not been privy to does in my view preclude there being any reintroduction between the children and Mr T at this point other than under the supervision of Mr P and for the purpose of a further assessment. 

12. I will turn now to the further evidence of which Mr P was not appraised.  It came to light from documents subpoenaed by the husband from Victoria Police and which were required to be produced at court when this matter was first listed in the Magellan duty list on Friday, 12 October 2007.  The documents did not come to light until very late in the day, and whilst I released them at that point, the practitioners for the husband did not have an opportunity to inspect them until early on Monday morning, 22 October 2007. 

13. The police documents relate to charges brought in 2004 against Mr T on the information of his daughter, R. 

14. The daughter, R, born … August 1990, made a statement to Victoria Police on 12 April 2004, the text of which reads as follows:-

    My full name is [R] and I am 13 years old.  My date of birth is the […] August 1990.  I live with my mum and my half brothers […] and […]. 

    My mum and dad broke up when I was a baby.  Dad’s name is [Mr T].  He lives in […] by himself.  After mum and dad broke up, I didn’t see my dad until I was about five years old.  I don’t think that dad really wanted to have contact with me, but when I was five, I asked my mum if I could speak to him.  I rang my dad and we organised that I would go over to his house […] for the weekend. 

    Since then I have gone over to my dad’s house for visits maybe ten times.  That has been from the time I was five until now.  I would call him and ask him if it was alright to come and visit him for the weekend and he would sometimes say yes.  When I stayed over at dad’s house I would sleep in [C]’s bedroom.  [C] is my half brother.  His mum is [Ms Y].  I don’t know her last name.  She and dad aren’t together anymore so sometimes [C] stays with dad.  A couple of times when I stayed over at dad’s house, [C] was staying there for the weekend too.  If that happened then I would stay in the spare room with a double bed because [C] would stay in his room. 

    The last time I went and stayed at dad’s house was on Christmas night last year.  That would be the 25^th of December 2003.  Me and mum and my brothers had been to a park to have Christmas lunch with my family. 

    
    

    I don’t remember the name of the park.  We got home from the park at about 5.30 that afternoon and about 20 minutes later my dad turned up at our house and asked if I wanted to stay over at his house for the night.  Whenever I had stayed at dad’s, he had come over and picked me up from my house to take me back to his house, but he had never just turned up to see if I wanted to stay with him before.  I said yes and I packed some stuff to take overnight.  Dad had a can of VB beer that he was drinking. 

    Dad and I left home at about 6.15 that night.  Dad was drinking the same VB can.  He was driving his car, which a green Holden Commodore.  I don’t know what the registration is but he doesn’t have that care anymore because it got stolen.  On the way back to dad’s house dad and I stopped off at a pub that had a tabaret, but I don’t remember what the pub was.  It was somewhere near [Mr T’s home].  We were going to have some tea there, but because it was Christmas they were closing the meals so we left. 

    We drove a bit further and dad stopped off at a bottleshop that was around the corner from the restaurant.  Dad drove through the drive-thru.  Dad said to me “Do you want a drink?” I said “Yes”, Dad asked me what I wanted to drink and I told him Bacardi Breezers.  Dad brought me four Watermelon Bacardi Breezers.  Dad brought himself four drinks in a black can.  I don’t know what it was.  We then drove home to his house. 

    We got to dad’s house around 7.00 that night.  Dad and I sat in the loungeroom and watched Scary Movie 2 on DVD.  There was nobody else there.  While we were watching the movie, I drank three Bacardi Breezers.  Dad was drinking VB cans.  I don’t know how many he had exactly.  We didn’t have anything to eat.  The movie finished at about 10.00.  The Breezers made me feel really sleepy and I wanted to go to bed.  I said to dad, “I’m tired, I just want to lay down and watch another movie,” He said, “You can sleep in my bed if you want.”  I went into the bathroom and got changed into my pyjamas, which were my black silky boxers and my black matching singlet top.  I then went and jumped into dad’s bed under the covers.  Dad had got undressed and just had his boxers on by the time I got into his bedroom.  I don’t remember what colour they were but they were silky like mine.  Dad put a movie on and then he got into the bed next to me under the covers.  I was on the side of the bed closest to the [indistinct] would be the left side of the bed. 

    I don’t remember what the movie was called but it was [indistinct] that had John Travolta in it.  There were soldiers that were bashing their wives and raping them.  By that, I mean they were forcing their wives to have sex.  I don’t remember much else about the movie because I kept falling asleep.  Dad told me to go to sleep.  I think he kept watching the movie.  I closed my eyes and went to sleep. 

    I don’t know how long I was asleep for but at some time in the night I woke up.  The t.v wasn’t on anymore and the room was dark.  I was lying on my side facing away from my dad but I realised that my dad was touching me.  He was pushed right up against my back and he was rubbing his left hand over my singlet and touching my boobs.  Dad then moved his hand down to my boxers and he started rubbing his left hand over my vagina on top of my boxers.  I realised what he was doing so I moved away from him towards the edge of the bed.  I don’t think dad knew that I was awake.  He kept moving closer to me so that he was right up against my back.  I could feel his doodle against my bum.  It felt hard against my boxers.  I thought I was going to be sick.  I couldn’t believe that dad was doing this.  I think I was in shock.  I kept my eyes closed while his was happening.  I don’t remember how long dad did this for. 

    Dad then got up and knelt behind me near my legs and he pulled the doona down to the end of the bed.  Dad then took my boxers off and put them on the floor near the end of the bed.  I had my eyes closed because I was scared and was pretending to be asleep, but I heard them drop on the ground.  Once dad had taken my boxers off, he pulled the doona back up over me.  I knew that dad still had his boxers on because I could feel the silk against the back of my leg. 

    Dad laid back down behind me.  Dad then put his hand between my leg from behind near my bum, and he put one of his fingers inside my vagina.  He started fingering me.  By that, I mean that he started rubbing his finger in and out of my vagina.  Dad didn’t say anything when he did this.  I just kept pretending to be asleep because I was scared.  I think he did that for about five minutes.  I then made a noise like a yawn and rolled over onto my back, pretending to wake up.  Dad quickly moved away from me.  I said, “Dad, I’m going to go and sleep in my brother’s bed.” I got up and got my boxers from the floor and put them back on.  As I was walking out of the room dad said to me “Don’t you love me anymore?” and I said “Yeah,” Dad said, “What’s wrong?” and I said, “Nothing,” I then walked out of the room and went and slept in [C]’s room.  Dad didn’t come into [C]’s room.

    I woke up at about 8.00 the next morning and I had some breakfast.  I then had a shower and got dressed.  Dad was eating his breakfast too and then he got dressed.  While this was happening dad and I didn’t talk at all.  At about 9.30 as we were getting ready to leave, dad said to me, “Don’t tell you mum about anything that happened last night.”  I said, “I won’t.”  We were in the kitchen when he said that.  Dad and I then went and picked my Aunty […] up from her house […], and we went shopping at […].  We then went back to my aunty’s house and had tea.  Dad left after tea and I think mum came and picked me up from my aunty’s later on that night.  I didn’t tell anyone what happened.  I have not spoken to dad since then. 

    About a week after Christmas, my friend from school came over to my house.  Her name is [E].  We were sitting in my room listening to music.  [E] asked me how it was when I went to my dad’s house.  I told her it wasn’t good and she asked me why.  I then told her what had happened.  She was the first person that I told. 

    About two weeks ago I was having an argument with my mum and she said that she was going to call my dad to tell him that I could live there if I was going to keep getting into trouble.  I told her no and she wanted to know why, I then told my mum what my dad had done to me. 

15. In a letter covering delivery of the brief of evidence from Detective Sergeant J of the Criminal Investigations Unit, Detective Sergeant J described how he and Detective Sergeant O had interviewed the victim, R, and that "her version remains constant and she appears a confident, believable and capable witness".  He also states:-

    The accused on the other hand has questionable credibility.  He denies the offences but concedes certain issues such as: he provided the child with alcohol, allowed her to watch sexually explicit movies and shared a bed with her on the day in question.  Rather than give outright denials to these allegations, he made comments such as "I can't remember that happening." 

16. Detective Sergeant J recorded that "The victim and her mother are eager for this matter to proceed to the court."  

17. Mr T was ultimately acquitted of these charges in which I understand the evidence of the then 13-year-old complainant, his daughter, was uncorroborated.  The subpoenaed documents are significant for two reasons.  First, it was from the subpoenaed documents that counsel for the husband prepared a summary and relayed that to the court in the presence of the husband.  Therefore the husband and his sister, both of whom were sitting in the body of the court, are now aware of the serious allegations which appear in the subpoenaed documents.  They are also aware that Mr T was acquitted of charges brought on the basis of those information’s, but I am confident that the acquittal of Mr T does not sound in the mind of the father nearly as loudly as do the allegations of Mr T’s daughter.

18. The husband and his sister, Ms P Berry, having been in court when the police statement was read out, leaves me with no doubt that any anxiety they have in relation to the safety of the three boys in the event that Mr T is permitted to associate with them has increased significantly.

19. The evidence which is now to light from Victoria Police in relation to R also raises significant factual issues which could be explored and, if found on balance to have occurred, could lead the court to make a finding that exposing the S, N and M to Mr T would constitute an unacceptable risk of sexual abuse to them.  In saying this, I am mindful that the standard of proof required to secure a conviction is beyond reasonable doubt.  The standard to which this court need be satisfied of allegations relevant to this case is on a balance of probabilities.  Even if it is not found that the situation alleged by R in her statement to police actually occurred, then the court may subsequently at a final hearing be satisfied that Mr T poses an unacceptable risk to the boys. 

20. It is clear that from a forensic point of view, Mr P seeks an opportunity to assess the boys in the presence of Mr T and to do so after the boys have had some time to refamiliarise themselves with Mr T. Mr P suggested one Friday afternoon without notice, he would call on the mother and boys and Mr T at home and be able to observe the boys in as natural a setting as possible. 

21. From a forensic point of view, I have no doubt that Mr P is right.  However, my duty is to make orders which are in the children's best interests, not orders which result in the best researched trial, albeit there is obviously a benefit to the children of the expert being well informed.

22. Mr P’s concluded view was that, if the boys remain only able to see their mother on Sundays between 10am and 5pm without Mr T being present, they will not be emotionally deprived.

23. This is a case where there will be significant concentration on the risk of sexual abuse.  At this point the risk is considered by Mr P to be "low".  The independent children's lawyer adopts that as a preliminary position.  A further very significant aspect of the case will be the alleged aversion of the boys to Mr T and what the source of it is, whether it is based on the boys' appreciation that their father could not cope with them having a significant or pleasant relationship with him or whether they just do not like him personally. 

1. Having regard to the best interests of the boys being the paramount, but not the only, consideration, I have decided to continue the prohibition against the wife permitting the boys to have any contact with Mr T in the interim.  I take into account that this is a sad outcome for the wife and may be a harsh outcome for Mr T.  It is a result that may encourage the husband and/or the boys to maintain a stance which, ultimately, is not justified.  This interim result is based on my finding that, for the time being and until all matters can be adequately adumbrated, Mr T should not be brought into contact with the boys unless it is absolutely necessary such as for a further assessment by Mr P but then under Mr P’s supervision or control.  The consequence of my finding is that the wife’s time with the boys will continue to be very limited due to the wife’s unwillingness to require Mr T to leave her home even for the alternate weekends which she could spend with the children.  That is not my decision.  It is a limitation which the wife puts on herself and, very significantly, on her sons.  She does so in the knowledge that Mr P opines that the boys need more time with her. 

2. Apparently the wife is considering holidaying with the children separately from Mr T and to that end, I am asked to and have made orders which provide that she may give notice to the father and then be able to take the children away on holidays. 

3. The interim result may be unfair to the mother, may be unfair to the boys insofar as the time that they spend with their mother is going to be confined to daytime for one day per week.  It may be a result which is unjust to Mr T but I am satisfied that it is a result which is the safest result for the children at this point. 

4. For these reasons, I make the orders which I have announced.

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate

Date:  20 December 2007