BRICK & BRICK

[2015] FamCA 427

FAMILY COURT OF AUSTRALIA

BRICK & BRICK [2015] FamCA 427

FAMILY LAW – CHILDREN – Final orders – Whether the parties should have equal shared parental responsibility – Where a sibling of the children was allegedly abused by the father – Where the was acquitted of all charges –  Consideration of the sibling’s reaction to any orders for the father to spend time with the children – Where the children have lived with the mother – Whether it is in the best interests of the children – Views of the children – Where the mother has sole parental responsibility – Where the father may contact the children only after contact is initiated by the children.

Family Law Act 1975 (Cth) s 60B, s 60CC, s 61DA, s 65DAA

MRR v GR (2010) 263 ALR 368

APPLICANT: Ms Brick

RESPONDENT: Mr Brick

INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

FILE NUMBER: MLC 1691 of 2013

DATE DELIVERED: 28 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Justice Stevenson

HEARING DATE: 5, 6, 7 and 8 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Agresta

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

RESPONDENT: Mr Brick appeared for and on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Ms Carter

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Glezer Lanteri & Associates

Orders

1. That all existing parenting orders in relation to the children:

   ·          B born on… 2000 and

   ·          C born on … 2002

   (“the children”) are discharged.

2. That the mother have sole parental responsibility for the children provided that, in relation to all decisions concerning long-term issues, she will:

   (a)advise the father by email of any decision which she intends to make and

   (b)seeks the father’s views by email response and

   (c)takes into account the father’s views by reference to the children’s best interests and

   (d)advise the father by email of her response as soon as is reasonably practicable.

3. That the children live with the mother.

4. That the father forthwith provide to the Independent Children’s Lawyer (“the ICL”) his email address and telephone number, which information the ICL will convey to the children.

5. That the father is at liberty to respond to any email or telephone call from the children or either of them but is otherwise restrained from emailing or telephoning the children or either of them.

6. That the father is at liberty to attend any event at the schools attended by the children from time to time only if the children issue to him an invitation to do so in writing or by email but is otherwise restrained from attending the children’s schools.

7. That the father is at liberty to deliver birthday and Christmas cards and gifts to the children, by postal or courier service only, provided that he will discontinue provision if the children or either of them advise him by email or in writing that they do not wish to receive this material.

8. That the mother forthwith do all things and execute all documents necessary to authorise the father to receive, at his request:

   (a)information, newsletters, reports and photographs from the schools attended from time to time by the children and

   (b)       information from the children’s treating health professionals.

9. That the mother inform the father as soon as is reasonably practicable, by email or text message, of any significant illness or injury suffered by the children or any admission to hospital of either child.

10. That each of the parties keep the other advised of their residential address, landline and mobile telephone numbers and email address and inform the other of any change within 48 hours.

11. That the mother facilitate any request by the children or either of them to spend time or communicate with the father.

12. That the ICL meet with the children, for the purposes of explanation of these orders, as soon as is practicable after the delivery of judgment and that the mother ensure that the children attend these appointments.

13. Pursuant to Section 65DA(2) and Section 62B, 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 these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 1691  of 2013

Ms Brick

Applicant

And

Mr Brick

Respondent

And

Independent Children’s Lawyer

Glezer Lanteri & Associates

REASONS FOR JUDGMENT

The Proceedings

1. Mr Brick (“the father”) and Ms Brick (“the mother”) are the parents of two children:

   ·B born in 2000 (14),

   ·C born in 2002 (12) (“the children”).

   The mother has a daughter of a previous relationship, Ms D, who was born in 1995 and is currently 19 years of age.

2. The children live with the mother and have spent no time with the father since February 2013.  The mother unilaterally suspended their time with the father after Ms D complained to her of sexually inappropriate behaviour on his part.  Ms D lives with the mother and the children.

3. During the trial the issues narrowed substantially, as the father ultimately sought orders to the following effect:

   1.That the parties have equal shared parental responsibility for the children.

   2.That the father is at liberty to communicate with the children by email, at his instigation.

   3.The father is at liberty to attend events at the children’s school to which parents are normally invited, at his election.

4. The mother and the Independent Children’s Lawyer (“ICL”) sought orders to the following effect:

   1.That the mother have sole parental responsibility for the children, subject to keeping the father informed of major long-term decisions and taking into account his views.

   2.That the children spend time and communicate with the father in accordance with their wishes.

   3.That the father is at liberty to attend school events only in response to a written invitation from the children.

5. At the commencement of the trial, counsel for the mother stated that she did not seek a finding that the father sexually abused Ms D.  Counsel indicated that the mother sought a finding that the children would be placed at an unacceptable risk of sexual abuse in the unsupervised care of the father.

6. In final submissions ICL counsel said words to the effect, “there is no need for a finding of unacceptable risk because the father does not seek face-to-face time.”  Counsel for the mother adopted the submissions of the ICL and stated clearly that her client “seeks no finding of unacceptable risk.  That is not necessary.”

7. In these circumstances, I agree that it is unnecessary that I determine whether there exists an unacceptable risk of sexual abuse.  In my view, it follows that there is no need for me to examine the evidence in relation to the specifics of Ms D’s allegations.  I consider that it remains necessary that I have regard to the evidence concerning Ms D’s potential reaction to orders for the children to spend time and/or communicate with the father and any flow-on effect to B and C.

Background

1. The mother was born in 1966 in Country E and is currently 49  years old.  The father was born in 1965 in Country F and is presently aged 49 years.

2. During the 1980s the parties were involved in a relationship of approximately two and-a-half years duration.  They separated in about 1987 and the mother then married the father of Ms D.  The parties recommenced a relationship in 1999 and married in 2000.

3. The parties separated on 28 June 2012, when the mother left the former matrimonial home with the children and Ms D.  Initially, the children lived with each of the parties on a week-about basis but this arrangement broke down in August 2012.  Thereafter the mother insisted that the children spend time with the father only on alternate weekends, for one night in each other week and additionally as agreed between the parties.  The children last spent time with the father on 27 January 2013.

4. On 3 February 2013 Ms D made allegations to the mother of sexual abuse by the father.  On the same day the mother obtained an interim intervention order against the father.  On 8 March 2013 the mother filed an Initiating Application by which she sought orders that she have sole parental responsibility;  that the children live with her and that they spend no time with the father.

5. On 3 April 2013 the father filed a Response to Initiating Application by which he sought orders that he have sole parental responsibility;  that the children live with him and spend time with the mother each alternate fortnight.  As noted, the father’s position had shifted substantially by the time of commencement of the trial.

6. In August 2013 the father was charged with six offences of a sexual nature in relation to Ms D.  He was committed for trial in November 2013 and acquitted of all charges by a jury in March 2014.

7. On 22 January 2014 interim orders were made which provided for the children to live with the mother and for their time with the father to be reserved pending further order.  On 24 September 2014 interim orders were made by consent which provided that the father communicate with the children in writing via the ICL.  These orders provided that the ICL would determine whether this material was suitable to be passed on to the children.

8. On 4 May 2015 the parties attended a hearing in relation to the intervention order.  It seems that an order was granted on a permanent basis for two years but, during the trial, the father indicated that he intends to lodge an appeal.

Approach to these proceedings

1. In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. 

2. The court must have regard to the objects of Part VII, as contained in s 60B(1) and the principles underlying those objects, as set out in s 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1)).  If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in s 65DAA(3),(4) and (5).  There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:

   8. Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   9. Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”

   …

   13. Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”

   …

   15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s  65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.…

The Evidence and Witnesses

1. The applicant mother relied on her affidavit sworn on 26 March 2015.  The respondent father relied on his affidavit sworn on 11 April 2015 and a handwritten proof of evidence (Exhibit 6).  Both of the parties gave oral evidence.

2. I had the benefit of a report dated 4 February 2015 and oral evidence from Family Consultant Ms G.  The ICL relied on a report dated 19 September 2014 by Clinical Psychologist Dr H, who gave oral evidence by telephone.  Dr H carried out a psycho-sexual assessment of the father on 4 August 2014.  The father strongly disputed aspects of Dr H’s methodology and conclusions.  Due to the narrowing of the issues, however, Dr H’s evidence plays no part in my determination of what orders are in the best interests of the children.

The Presumption of Equal Shared Parental Responsibility

1. With respect to the father, he appeared to misunderstand the import of an order for equal shared parental responsibility.  In his oral evidence he said:

   I should have equal shared parental responsibility to maintain a measure of communication that is open

   and

   I think she would need some incentive to keep me in the loop.  As soon as she has full control she will isolate me.

2. The ICL proposed the following order in relation to parental responsibility:

   3.That the mother have sole parental responsibility for the children save that the mother shall prior to the making [of] any ultimate decision about any long-term issue pertaining to the children:

   a.use her best endeavours to advise the father in writing via email or [sic] any decision intended to be made; and

   b.seek the father’s written response (also via email); and

   c.consider by reference to the best interests of the children or either of them, any such response prior to making any decisions; and

   d.advise the father in writing by email as soon as reasonably practicable of her ultimate decision.

3. The father rejected this proposal of the ICL and explained his reasons as follows:

   I am not comforted by the ICL’s proposal for parental responsibility.  It does not require her to include me, it requires her to make a token attempt which can then be disregarded.

4. It was readily apparent that the parties have been unable to communicate effectively and co-operate in relation to major decisions concerning the children’s welfare since Ms D made her allegations.  It may well be the case that the mother has deliberately attempted to exclude the father from any meaningful input into the lives of the children.  The reality, however, is that there exists mutual animosity and a high level of distrust between the parties.

5. The father annexed to his affidavit copies of all text messages which the parties exchanged between 3 March 2012 and 2 May 2013.  Some of these communications were in civil terms but others could only be considered to be abusive in tone.  For example on 17 October 2012 the mother texted to the father:

   Since u can’t look at yrself as any part of a problem and you speak to me like dirt … all u seem to be interested in is being right and blaming me.

   Later on the same day the mother sent the father a message in these terms:

   To use language U used on me … go fuck yourself.

6. Some of the text messages exchanged between the parties refer directly to their communication difficulties.  For example on 30 March 2012 the mother texted the father:

   Hi.  Am sending you this text so we don’t end up shouting & upsetting the kids.

   On 6 June 2012 the mother texted:

   Been thinking about both of our nasty behaviour on Sunday night which our kids had to listen to.

7. Regrettably, I have strong reservations that the parties will be able to communicate effectively and make co-operative decisions in relation to the children’s welfare in the future.  Additionally, on all proposals the father will spend face-to-face time with the children only at school events and communicate with them principally by email.  In practical terms, I cannot envisage how the parties could effectively exercise equal shared parental responsibility in these circumstances.  An order for equal shared parental responsibility would not achieve the outcome which the father identified in his oral evidence.

1. For these reasons I find that the presumption is rebutted by evidence that it would not be in the children’s best interests that the parties have equal shared parental responsibility.  I will make an order in relation to parental responsibility as proposed by the ICL.  I would observe, however, that the father’s concerns in relation to the mother attempting to exclude him from major decisions in relation to the children may well have substance.  In all of the circumstances, however, I see no viable alternative to the proposal of the ICL.

2. As there will be no order for equal shared parental responsibility it is unnecessary that I consider whether it is in the children’s best interests, and reasonably practicable, that they spend equal or substantial and significant time with each of their parents. Accordingly I will determine the outstanding issues between the parties on the basis of what orders are in the children’s best interests, by reference to the considerations set out in section 60CC of the Act.

Outstanding issue

1. On 8 May 2015 the father submitted a document which set out the orders which he sought, which read as follows:

   2.That the Father and Mother share Parental Responsibility for the children

   B born … 2000

   C born … 2002

   3.The Children shall reside with the Mother

   4.That the Children shall visit with the father if they express a wish to do so.

   5.That the Children may communicate with the father freely, if they so wish

   6.There shall be no restriction on the Father with regard to exercising his Parental rights and responsibilities

   7.The mother shall act in accordance with the wishes expressed by the children, with regard to visiting their father

   8.The Mother shall within 7 days of this Order, facilitate communication channels between the children and the father, and the children, by means (of) email

   9.The mother shall do all things to ensure that channels of communication, so facilitated, are maintained and freely accessable to the children on all portable communication devices that they posess

   10.That the Mother and Father and their servants and agents be restrained from denigrating the other parent in the presence of, or with the vicinity of the children, either by word, action or lack of action

   11.The Children be permitted and assisted, by the Mother, to attend upon a counsellor or therapist if they express a wish to do so

   12.That the Mother inform the Father by email or text, upon becoming aware of

   13.any illness or injury effecting either of the children

   14.any hospital attendance by either of the children

   15.That following the making of these orders, the Independent Childrens Lawyer shall make arrangements for the Children to attend upon the Independent Childrens Lawyer for the purpose of explaining these orders to the children and the mother shall do all things to ensure that such arrangements are complied with

2. Counsel for the ICL sought orders in the following terms:

   1.        That all previous parenting Orders be discharged.

   2.That the children B born … 2000 and C born … 2002 (“the children”) live with the mother.

   3.That the mother have sole parental responsibility for the children save that the mother shall prior to the making any ultimate decision about any long term issue pertaining to the children:

   (a)Use her best endeavours to advise the father in writing via email or any decision intended to be; and

   (b)Seek the father’s written response (also to be by email); and

   (c)Consider by reference to the best interests of the children or either of them, any such response prior to making any decision; and

   (d)Advise the father in writing by email as soon as reasonably practicable of her ultimate decision.

   4.That the children shall spend time with and communicate with the father in accordance with their respective and individual wishes, and if any such time is to be supervised or facilitated through family therapy (at the request of the children or either of them) the father shall be solely responsible for the costs.  The mother shall do all things and sign all documents necessary to facilitate such supervision or therapy and facilitate the children attending in accordance with their wishes.

   5.That the father shall be restrained from attending either of the children’s schools, sporting events and other extra-curricular activities, unless he is requested to do so by the children or either of them, in writing.

   6.That in the event the children elect to participate in therapeutic counselling for the purpose of the consideration of time with the father either [Dr I] or [Ms J] be retained or such other person as is agreed between the parents in writing.

   7.That the father be at liberty to deliver Birthday and Christmas cards and gifts to the children, by postal or courier service only, save that he discontinue provision if expressly advised by the children or either of them.

   8.That the father be authorised to receive information direct from each of the children’s schools, and the father may at his request and expense receive copies of each child’s school report, school photographs, school newsletters and any other school correspondence which parents normally receive.

   9.That the mother authorise and direct all the children’s health professionals to provide any information and documentation that parents might normally be entitled to receive from time to time as requested by the father.

   10.That the mother advise the father as soon as practicable by email or text message upon becoming aware of:

   (a)Any significant injury or illness affecting either of the children.

   (b)Any hospital attendance by each of the children.

   11.That each party keep the other advised of their residential address, landline, mobile telephone number and email address, and notify the other of any change to such details within forty eight (48) hours of such change.

   12.That the mother and the father together with their servants and agents be and are hereby restrained from:

   (a)Discussing these proceedings with or in the presence of the children or either of them;

   (b)Denigrating the other parent to or in the presence of the children or either of them;

   (c)Leaving any Court documents, evidence or correspondence where the children or either of them may locate or read them, whether such documents evidence or correspondence are in hard copy or on electronic device.

   13.That the children be permitted to attend upon a counsellor if deemed necessary by the mother or either of them.

   14.That both parents shall continue to attend upon their respective general medical practitioners and shall comply with any advice given by their general medical practitioners, with respect to their mental health, including compliance with medication regimes and attendance at specialists as recommended by their general medical practitioners, and if referred to such specialists, the parties shall comply with medication regimes, as advised by such specialists.

   15.That following the making of these Orders, the Independent Children’s Lawyer shall make arrangements for the children to attend upon the Independent Children’s Lawyer for the purpose of explaining these Orders to the children, and the mother shall do all things to ensure that such arrangements are complied with.

   16.Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   17.That subject to paragraph 15 of these Orders, the Independent Children’s Lawyer be discharged.

   ADDITIONAL ORDERS SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER

   The father shall forthwith provide to the Independent Children’s Lawyer an email address and telephone number which the children can use to communicate with him, and the Independent Children’s Lawyer shall provide those to the children.

   The father is at liberty to respond to any emails sent to him or telephone calls made to him by the children or either of them, but is otherwise restrained from telephoning or sending unsolicited emails to the children, or either of them.

3. The mother consented to all of the orders proposed by the ICL.

4. As indicated above, by the end of the trial the outstanding issues between the parties could be identified as follows:

   1.whether email and other communication between the children and the father should be at their or his instigation; and

   2.whether the father’s attendance at the children’s school events should be at his or their initiation.

5. To the father’s credit, he conceded that it would be inappropriate for an order to be made which compels the children to attend counselling against their wishes.  He said:  “I do not seek an order to force the girls to go to counselling.  As the Family Consultant said, it would be wrong thing to force them now”.

6. The Family Consultant, Ms G, had said in response to questions from the ICL:

   Therapeutic counselling would provide an opportunity to explore …  If they told the ICL that they don’t want a therapeutic process, there is a need to take into account their ages and intelligence.  The reality is that any therapeutic benefit is negated.  Yes, it may make it worse.

Communication

1. The Family Consultant interviewed the children in January 2015, when they were 14 and 12 years of age.  Both B and C expressed to her clear views that they do not wish to spend time or communicate with the father.

2. In relation to B, the Family Consultant reported as follows:

   59.[B] advised that the feels “frustrated at having to discuss this all again.  I have already told my opinion to the ICL, which I don’t like him and don’t want to see him.  My Mum keeps saying ‘you can say you want to see him, you can say you love him.’  I don’t want the topic brought up anymore.  I just want to get on with my life and not have to think about or talk about all this again.  It is really hard and it is really annoying.”

   60.When asked about whether she would want to see her father in the future, [B] said “I don’t want to be around someone I don’t feel safe with and I can’t feel safe with him because of what he did to [Ms D].”  In response to questions regarding what might help her feel safe, [B] replied “nothing”.  She further stated “Even if the Judge said I have to see Dad I wouldn’t go because I don’t want to see him.

3. The Family Consultant reported as follows on her interview with C:

   50.… She said “I am happy with how things are at the moment …  I am happy living with my mum …  I just want everything to stay as they are and not change.”  From her narrative it appears that [C] has some concerns that she may have to live with her father.  When it was suggested that it was unlikely that there will be any major changes in her current living arrangements and that she will continue to live with her mother and her siblings and possibly spend little time with her father, [C] took a while before she provided any response.  She said words to the effect “I can’t trust him … he lied to me … about [Ms K] and that … and what he did to my sister … I believe my sister … she wouldn’t make that up … and I wouldn’t feel safe…

   51.When asked what she might need in order to feel safe if she were to spend any time with her father [C] said:  “I would have to have someone else there … it would have to be baby steps … But not right now.  I am fine stable and happy now.  I am not ready to see him.  I need more time to forgive him and get over stuff.  I just need to be ready.

4. Interestingly, C expressed a different view to a counsellor with whom she consulted during 2014 (Exhibit 8).  On 28 July 2014 the counsellor noted:

   Also says she wanted to see Dad a couple of weeks ago but mum did not want her to / said no.

   [C] said she would like to see dad for a day visit.

   Said she “wants to see how he lives.

5. During these counselling sessions C also expressed a view that she does not wish to see her father.  On 5 May 2014 the counsellor noted “[C] states she does not want to see dad currently and is happy living with her mother right now.”  On 20 August 2014 the counsellor noted “[C]:- “ not sure if I want to see him” –“Just want it how it was before.”

6. During the same counselling session on 20 August 2014, however, it was noted:

   [C] stated:-  “kind of want to spy” – go back to how it was – weekends/fortnightly visits to dads – “bothers me about what [Ms D] has said about dad”  [C] said she believes [Ms D] and knows it is probably true.

   [C] states she’s feeling guilty about wanting to see her dad and very confused.

   [C] feels that there is some family pressure to not see her dad – from her sisters.”

7. The Family Consultant opined that the children and the mother believe that the father sexually abused Ms D.  She was of the view that they are likely to be aware that the mother and Ms D would be distressed at the prospect of their spending time with the father.

8. In my view, it is likely that the children are acutely aware that the mother and Ms D are unsupportive of any arrangement whereby they would spend time with the father.  It seems probable to me that C accurately reported to her counsellor that she experienced “some family pressure” to avoid seeing the father and that B is in the same position.

9. Nonetheless, the children are now approaching 15 and 13 years of age and their views should carry significant weight.  I consider that the evidence of the Family Consultant indicates that they wish to control their future interaction with the father.

10. On 24 September 2014 a Registrar made orders by consent which enabled the father to communicate with the children via the ICL.  Inter alia, these orders provided that all such communications were to be in the English language.  These letters and cards were in evidence as Exhibit 7.  The ICL declined to pass on some of these communications to the children.

11. One of the father’s letters to the children was written in an African language, despite the provisions of the orders of September 2014.  The father said that these words were the lyrics of an African lullaby.  He maintained that the ICL should have carried out an internet search to identify these words.  The father appeared to have no appreciation that he was obliged to refrain from writing to the children in this language.

12. In my view some of these communications with the children would be highly likely to have placed them under pressure.  For example the father wrote:

    Dear [B], life without you is like living without colour, or eating without any taste.

    Every day, I put one foot in front of another, and am walking on no path and going nowhere.

    I would REALLY appreciate if you would send me even the shortest note or letter.  I love you sooooo very much.  Your daddy.

13. I consider that the father made statements in his oral evidence which give rise to concern as to how he might exercise unrestricted email access to the children.  Inter alia, he said:

    I think there should be no restriction on my emails.  It should be left to me to act responsibly.  If [B] said that she did not want to hear from me, I would reply “If you don’t mind I will send a basic email once a month to keep in touch.”  If she replied “I do mind, I don’t want to hear from you” I would send an email one per month “hello, love dad.

14. The father said further in his oral evidence:

    If the ICL gives the girls my email address and I hear nothing, maybe they lost it or they don’t want to write.  I think it is in the girls’ interests that I keep in contact.  I want their email address and no restrictions on me emailing them.  If I do not get a response I will possibly email them once a month.  I have no intention of bombarding them with emails.

15. Despite the father’s protestations, I remain concerned that he would “bombard the children with emails” if he were at liberty to determine the frequency of communication.  In my view, his oral evidence made it clear that he would not accept from them any indication that they did not wish to receive email correspondence.  I harbour concerns as to the contents of the father’s communications with the children, having regard to his response to the orders of September 2014.

16. As the Family Consultant agreed, the issue of email communication between the children and the father requires “a balance between keeping the door open and having [them] bombarded.”  She opined that “it is reasonable to suggest that there should be some constraints about email communication.”

17. I conclude that the orders proposed by the ICL will best meet the children’s interests.  I see no reason why the alternative of telephone communication, on the same basis, should be denied to the children and the father.

School attendance

1. The father expressed his position in relation to attendance at the children’s school events in these terms:

   I ask for an order that I can attend school events without an invitation from the girls and put responsibility on me.  There is no possibility that they would avoid going to a school event because I would be there.  I would make sure by email that they are happy for me to be there.

2. The Family Consultant expressed a clear view that the father should attend school events only in response to an invitation from the children.  She said:

   The father attending sporting fixtures would have to be in accordance with their wishes.  It is important for the mother to be aware of that but they are sufficiently mature to extend an invitation to the father.

Ms D’s likely response

1. Again, I consider that the evidence of the Family Consultant indicates that the children wish to determine the nature and frequency of their future interaction with the father.  It may well be that any attendance by the father at their school events, contrary to their wishes, would be counter-productive in terms of potential re-establishment of a relationship in the future.  Accordingly, I conclude that the orders proposed by the ICL will best meet the children’s needs.

2. I am of the view that Ms D would cope with the children having interaction with the father in the manner proposed by the ICL.  The Family Consultant reported on her interview with Ms D:

   “65.When invited to consider the possibility of [B] and [C] spending time with their father at any time in the future, [Ms D] did not express any concerns for their safety, focussing on her own needs not to see him.  She said:  “as long as I don’t have to see him that’s all.  So if he came to our house, I would just like stay in my room or something. ”

   That being so, I have no basis for concern that the children would be adversely affected by Ms D’s reaction to the orders proposed by the ICL.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on

28 May 2015.

Associate:

Date:  28 May 2015