CAMBRIDGE and WALTER

[2010] FCWA 30

[2010] FCWA 30

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	CAMBRIDGE and WALTER [2010] FCWA 30
CORAM	:	THACKRAY CJ
HEARD	:	31 AUGUST 2009, 1 AND 2 SEPTEMBER 2009
DELIVERED	:	23 FEBRUARY 2010
FILE NO/S	:	PTW 713 of 2000
BETWEEN	:	CAMBRIDGE
AND
WALTER
Catchwords:

CHILDREN - With whom a child spends time - Best interests of a child - Family violence - Allegations of sexual abuse - Likely effect of change in circumstances - Transition from supervised to unsupervised contact

Legislation:

Family Court Act 1997 (WA)

Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant:	Ms M Hearty
Respondent:	Self Represented Litigant
Independent Children's Lawyer:	Ms J Taylor

[2010] FCWA 30

Solicitors:

Applicant:	Hearty & Tam
Respondent:	Self Represented Litigant
Independent Children's Lawyer:	Legal Aid WA

Case(s) referred to in judgment(s):

B and B

Family Law Reform Act 1995 (1997) FLC 92-755

Champness & Hanson [2009] FamCAFC 96
Marsden and Winch (No. 3) [2007] FamCA 1364
Mother and Father [2006] FCWA 89
Mulvany & Lane [2009] FamCAFC
U v U (2002) 211 CLR 238

[2010] FCWA 30

1 [Mr Cambridge] and [Ms Walter] are engaged in a protracted dispute concerning

their children, [Michelle](12) and [Timothy] (9). After years of supervised visits, the father wishes to move to an unsupervised arrangement. The mother is ambivalent about the father having any relationship with the children, but insists that any time he does have with them should be supervised. The mother is convinced the father sexually abused Michelle when she was a little girl. She believes he is pursuing his claim only to upset her and in order to kidnap the children and rape Michelle.

The parties and their relationship

2 The father was born [overseas], but has lived in Western Australia since 1979. He is now aged 54, resides in Perth and is employed as a truck driver. He lives alone.

3 The mother is aged 46 and lives in [the country]. She moved from Perth to the

country in 2007 to reside with a man whom she proposes to marry. Her de facto husband has a young son from a previous relationship, with whom he has regular contact.

4 The mother is employed part time as a [guidance officer]. Her role requires her

to deal with many issues, including “family violence, suicide, child abuse, bullying, eating disorders, racism and non-attendance at school”. Her qualifications for this important work are two certificates in youth work obtained at TAFE.

5 The mother and father met in 1995. The mother was [working] at a hotel frequented by the father. They commenced cohabitation soon after meeting.

6 There were two children of the relationship, Michelle, born February 1998, and Timothy, born May 2000.

7 The mother and father first separated in 1999, when the mother was pregnant

with Timothy.

Events following the first breakdown of the relationship

8 The parties gave differing accounts of what occurred following their first

separation in 1999. The father says they reconciled and separated on a number of occasions until the relationship finally ended in February 2004. He says he sometimes lived with the mother full-time, but at other times they spent nights together while maintaining separate residences.

9 The mother’s version is that they never actually reconciled after 1999, although

there were occasions when they were working on the relationship. She says the only time the father stayed with her and the children for more than a night or two was for five weeks in 2002 when the father moved into her home temporarily (and then refused to leave). The mother insists she was vigilant to ensure the safety of the children whenever the father was in her home.

10 Whether or not the parties ever “reconciled”, it is clear the father spent a good

deal of time with the mother and children after the first separation. During these

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periods the father had the opportunity to develop his relationship with the children, at least to some limited extent. I was not persuaded that the mother was as vigilant in ensuring the safety of the children as she now likes to recall. I accepted the father’s evidence that there were occasions when the children were left in his care, including when the mother worked.

11 The various breakdowns in the relationship were usually accompanied by

allegations of violence and applications by the mother for restraining orders. The mother was content for the father to spend time with the children when their relationship was going relatively well, but when a breakdown occurred she would insist that he only see the children at a supervised contact service. The first time this occurred was in 2000, prior to the mother having any concerns that the father might have molested Michelle.

12 There were a number of occasions when the children went for lengthy periods

without having any time with the father. One of the longest was when the father went home in 2001/02. This occurred shortly after the father was convicted of criminal damage and making “serious threats causing fear” following an incident [in] November 2000 in which he terrorised the mother and the maternal grandmother.

13 A few weeks after this incident the mother informed the police that the father

had molested Michelle. She claimed Michelle had disclosed that the father had digitally penetrated her. She said these disclosures predated the incident [in] November 2000 (indeed the father says his behaviour on that day had been provoked by his outrage when he learned that the mother and grandmother were suggesting he had abused his daughter).

14 The police then approached the child protection authority (which I will refer to

as “DCD”) for assistance in carrying out the investigation into the allegations. A series of interviews was conducted with Michelle but the allegations were not substantiated by DCD and no criminal charges were laid, although the police officer who conducted the interviews told the mother that she believed “something had happened”.

15 The investigation was conducted during the period when the father was waiting

for the charges concerning the November 2000 incident to come before the court. By the time the matter was listed in court ([in] March 2001), the mother and father had reconciled their differences to the extent that the mother accompanied the father to plead for leniency, the father having elected to plead “guilty”. The mother now claims she only assisted the father because she did not think he should go to gaol and because he had promised he would go back home and leave her and the children alone.

16 It is true the father was planning to go home, but he says this is because he was a

truck driver and had lost his Australian driver’s licence as a result of the incident in November 2000. He claimed that the plan was for the mother and children to join him overseas. Notwithstanding the father’s claim, the trip which the mother ultimately organised for herself and the children in August 2001 was scheduled for only 14 days. The mother also claims that the father was meant to have arranged separate accommodation for her on arrival, but he did not do so, which is why she and the children ended up staying in the same room as him. She says she only went home

[2010] FCWA 30

because she wanted the children to know their father and because “that is what the
courts want”.

17 There are probably elements of truth in both stories in that I suspect the mother

did lead the father to believe she would come live with him. The fact the mother allowed the father to stay with her for two or three days before he went home in April 2001 (and saw him off at the airport with the children) provides some corroboration for the father’s version. So does the fact that they stayed in contact with each other while he was away, combined with the fact that the mother and children voluntarily travelled to spend time with the father.

18 In any event, the mother’s trip got off to an inauspicious start. On the flight on

the way the mother hit young Timothy so hard that the police were waiting to interview her upon arrival. The visit did not proceed well and the mother and father argued. Notwithstanding that they parted on unhappy terms (the trip was cut short by a few days), the mother then met the father at the airport on his return to Perth in April 2002 and allowed him to stay with her. The mother’s explanation for her ambivalent conduct was that she did not want to believe that the father could sexually molest Michelle and because she “wanted him to be a better person”. She also said she “could not get [her] head around” the allegations and was “in denial” because she “did not want to deal with the fact that the man I was in love with was a sex molester”.

19 After the relationship finally came to an end in 2004 the mother once again

insisted that contact between the father and children be supervised. This was happening at Relationships Australia until the mother suspended the visits in about September 2005. When informal efforts made by the father’s solicitors to reinstate the contact proved unsuccessful, the father commenced the current proceedings in May 2006 seeking unsupervised time.

The court proceedings and the reports of the Single Expert

20 I do not propose to detail all that has occurred in these prolonged proceedings.

The mother had commenced proceedings as long ago as 2000, but the litigation then appears to have waxed and waned with the fortunes of the volatile relationship. It is important, however, to have an appreciation of what has occurred since the father commenced action in 2006, since it has been suggested that the dramatic variation in the children’s attitude to spending time with him has been associated with the stage the litigation had reached at various points (and the mother’s heightened anxiety along the way).

21 A variety of interim orders for supervised contact have been made. The first of

these in the current proceedings was an order made in July 2006 (apparently by consent) for the father’s visits to resume at Relationships Australia (although it took about two months before they did). At the same time an order was also made for the appointment of [Dr W] as the Single Expert.

22 Dr W provided her first report in August 2006. She concluded that the children

had a very good relationship with the mother. She also expressed her opinion that whilst the father was “basically attached to his children, the relationship was not

[2010] FCWA 30

a very close one”. She said this may be related to the limited contact he had had with the children. She also noted that from her review of the information supplied by Relationships Australia it appeared the father’s earlier supervised visits with the children had gone well. The father had been affectionate with the children and they were affectionate with him. She recorded that the information did not indicate any concerns about how the children related to the father or how he related to them.

23 The Single Expert reported that when she interviewed Michelle she had said she

was confused why she was no longer able to visit her father. Michelle said she liked seeing him, although she found the setting for the supervised visits to be “boring”. She also said she felt sad that her father was not able to call Timothy on his birthday. She spoke of how some of her friends had separated parents and how they were able to see their fathers regularly. She told the Single Expert that she would like to be able to do things with her father, spend some weekends with him and be able to telephone him at least once a week. Michelle said she expected her mother would not allow her to spend weekends with her father.

24 The Single Expert unsurprisingly concluded that Michelle appeared to miss her

father, wanted to have a relationship with him and felt that the supervision of visits
was “too limiting on her relationship with her father”.

25 Timothy also told the Single Expert that he did not know why he was no longer

visiting his father. He said he would like to see him again. The Single Expert noted that Timothy “smiled broadly” when asked if he would enjoy going places with his father. Although Timothy stated he would like to be able to do things with his father, he did not want to stay overnight with him. (Timothy had told the Single Expert he had been having problems sleeping and the mother had also reported that Timothy had recently wanted to sleep in her bed.) The Single Expert concluded that Timothy appeared to want to have an ongoing relationship with his father and to be able to do things with him on a regular basis.

26 The Single Expert expressed the view that the mother “does not appear to have

an understanding of the important role that fathers play in the development of children”. She surmised this may have been due to the mother’s own upbringing, which had resulted in her being estranged from her father. She concluded that the mother would “need assistance in not blocking the relationship between [the father] and the children and will certainly need assistance to learn how to promote that relationship”.

27 The Single Expert recommended that while the children should continue living

with the mother, the Court should give consideration to both parents being actively involved in the parenting of the children. She recommended that both parents be able to be involved in school and other activities of the children, as well as in making decisions regarding important issues. She recommended regular contact between the children and the father, although she felt it would be advisable to consider a gradual increase in the time to allow the mother to become more confident that the children would be safe.

28 The Single Expert further recommended weekly telephone contact, although she

suggested, given the children’s ages, that it may be better if they were to call the father

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rather than him calling them. In addition, she recommended face to face contact on occasions such as birthdays and holidays. She did not recommend overnight visits, but expressed the view that this should be reconsidered in the future when Timothy might be more interested in such an arrangement. The Single Expert recognised that the mother would be anxious about these new arrangements and recommended she have counselling to provide support and to assist her in fostering the contact.

29 In response to questions administered by the mother’s solicitors after the report

was published, the Single Expert said, “I cannot say that there is a reasonable suspicion that [the father] acted toward Michelle in a sexually inappropriate manner”. The mother’s solicitors then wrote to the Independent Children’s Lawyer complaining that the Single Expert had not given her opinion on the “crucial issue” of whether the children were at risk of any harm. It was claimed there was no evidence that the Single Expert had read the police and DCD files concerning the allegations of abuse. In response to these criticisms the Single Expert drew attention to the fact that her report had disclosed she had read the relevant files. She noted that insufficient evidence had been found to proceed with criminal charges and expressed the view that it would have been inappropriate for her to have undertaken any independent investigation of the allegations. She also noted that the father had no past history of inappropriate sexual behaviour with pre-pubescent children. She expressed the view that the father’s profile did not place him in the “high-risk range of potential sexual offending”.

30 The contact visits had still not commenced by the time of the conciliation

conference in September 2006, by which time the Single Expert’s report had been distributed. It was agreed at the conference that the first two visits pursuant to the July 2006 order should be for two hours, and thereafter three hours. An order was also made for telephone contact each week, with the father to initiate the calls.

31 The father’s visits resumed at Relationships Australia on 16 September 2006. By this time the children had not seen him for a year. They were initially somewhat quiet and reserved, but greeted their father verbally and with a hug and a kiss. They interacted with him and their conversation was described as “free-flowing and spontaneous”. It was observed that “[Timothy] seemed wary about having physical contact with [the father], at times moving away from him whilst Michelle initiated physical contact spontaneously”. The supervisor observed that the father was “responsive to the children’s needs, following their lead in play and sharing his time with them equally”. Both children were observed to be “receptive to their father’s hugs, although Timothy needed some encouragement”.

32 At the next visit ([in] September 2006), the mother informed the supervisor that

Michelle had vomited after the last visit. Nevertheless, this second session was observed to be “generally a happy and relaxed visit”. Both children kissed and hugged the father “goodbye”.

33 No concerns were expressed about the next visit [in] October 2006, with the

children again greeting the father with kisses and hugs. The visit was described
overall as being “happy and relaxed, with a lot of interactive play”.

[2010] FCWA 30

34 The next visit was [later in] October 2006. Prior to the commencement of the

visit Michelle informed the Relationships Australia support worker that “Mum is not happy with all this”. She reported that when she was older her mother would “tell her about how her father tried to kill her … and that her father went into the shower with [her] when she was about six months old”. Nevertheless, when the father arrived, the children greeted him with hugs and kisses, with the visit overall being described as “happy and relaxed”.

35 The mother was cross-examined about this negative reference to the father

showering with Michelle. It turned out that this related to a photograph the mother had taken of Michelle when she was having her first shower with the father. The mother said she had intended to get rid of the photograph because she did not like looking at it; however, Michelle had found the photograph and had allegedly asked her mother why she looked “sad” in the photograph. As I will explain further later, I could see no basis on which it might be thought that Michelle looked “sad” in the photograph. The mother conceded in cross-examination that she may have told Michelle that she would explain to her when she was older why she appeared to be “very unhappy” in the photograph. This snippet of information was important enough in Michelle’s mind for her to convey it to the supervisor as part of her explanation why her mother did not approve of the father having unsupervised time with her. The net effect is that the child was led to believe (as the mother conceded in cross-examination might be the case) that there was something not quite right about her father, albeit she was herself not yet old enough to be told the details.

36 At the next visit (11 November 2006) the children appeared reticent and did not

greet the father when he arrived. Although the father chatted constantly with the children they gave limited responses. Michelle told the support worker she was happy to continue attending the visits; however, Timothy said he was not happy to come anymore.

37 The next visit on 25 November 2006 was considered by the support worker to be

“somewhat stressful and concerning”. Timothy repeatedly kicked a ball into his father’s back during their play activities. The father asked the children what they would like for Christmas, to which they replied they already had enough toys and did not want anything. The support worker recorded that the visit did not have the “happy relaxed feel of most previous visits”.

38 The report from Relationships Australia staff concerning these visits noted that

that there had been 38 previous visits (extending from November 2002 to September

2005) . The summary of the report noted that:

it has been observed that [the father] interacts warmly with the children; he participates whole-heartedly in their activities and makes deliberate attempts to spend time with both children. [The father] has been consistent in his approach to the children throughout the course of the visits.

The children seemed initially to really enjoy seeing their father and there were positive signs about the relationship, however in the last two visits a shift was observed in the children’s behaviour and demeanour in

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interactions with [the father], including some negative responses, such as hitting him and rejecting his requests about Christmas. [Timothy], in particular, demonstrates a degree of caution in being physically close to his father and at times seems quite detached from him.

There are some indications that [the father] may find it difficult to set limits on the children’s behaviour, as seen during the last visit when he did not react to [Timothy’s] rough behaviour towards him. He has generally, however, responded appropriately to [Michelle’s] behaviour, which was noted to be very difficult during the visits prior to this latest stint.

The children seem to have a high level of awareness of the tensions between their parents. This is seen in the way [Michelle] has spoken about the visits, such as talking to her father about not providing drinks and snacks, and her shocked reaction when she found out [the father] had seen [the mother] at a local shopping centre.

39 Although the report did not indicate awareness of the fact by the Relationships

Australia supervisors, the reported deterioration in the quality of the visits was taking place in the shadow of events at the Family Court.

40 On 9 October 2006 the father had filed an amended application seeking an

interim order dispensing with professional supervision and proposing instead supervision by mutual friends of the parties. This application was listed for 1 November 2006, but was then adjourned until 12 December 2006. The father’s impression was that it was after this application had been filed that the visits “all of a sudden became a bit more difficult”.

41 On 1 November 2006 another order had been made for the father to have weekly

telephone contact with the children, this time with the children to initiate the calls. The arrangement did not progress satisfactorily, with the father alleging that the mother had sabotaged the calls. I accept he had good reason for his assertion.

42 At the visit on 9 December 2006 the children were noted as being initially

reluctant to participate, but following discussion with the supervisor decided to see their father. It was noted during this visit that Michelle talked about the upcoming court case.

43 An order was then made on 12 December 2006 expediting the matter to trial. At

the same time an interim consent order was made on a “without admission” basis that the fortnightly visits (which were extended to five hours) should be supervised by the mother’s stepfather. The father says he agreed to this because he wanted to move the visits away from the contact service. The mother said she only agreed because she was worried the Court might instead allow the visits to be supervised by the people the father was proposing.

44 What in fact occurred was that the visits stopped altogether, with the father

being advised that the children did not want to see him. He did not even see them on Christmas Day, although he was entitled to pursuant to the consent orders. On 5 January 2007 an order was made for the visits to be supervised by

[2010] FCWA 30

[a private agency], but this did not result in a resumption of contact either. Finally, another consent order was made in March 2007 for the visits to resume at Relationships Australia, with their staff being permitted to allow the supervised visits to take place away from their premises.

45 The children arrived at Relationships Australia on 10 March 2007 in the

company of both the mother and maternal grandmother. Both children immediately said they would not see the father. Michelle gave the coordinator a note explaining her reasons. A copy of the note was not in evidence; however, the coordinator discussed Michelle’s reasons with her at length. The coordinator recorded that Michelle was unable to be specific about how her father was “mean”. Michelle nevertheless insisted it was her own decision not to see her father, and expressed concern that her mother might go to gaol because it was a “court order”. Timothy was teary at times during the discussion but said he agreed with what Michelle had said. He also said that his father “upsets me, lies, and is mean to us”. The coordinator pointed out to the children that the earlier visits seemed to have gone well and that the children appeared to have enjoyed their time with their father. The children nevertheless remained adamant they would not see the father and the visits therefore did not resume, notwithstanding the order.

46 The matter had been listed for trial in July 2007 and the Single Expert was

requested to prepare a further report, which was published in July 2007. In this report the Single Expert noted that the visits had resumed in September 2006 and that the reports from Relationships Australia indicated that the initial visits had gone well; however, the visits then ceased, as did the telephone contact.

47 The Single Expert noted that during the course of the interview she conducted

for this report, “[Michelle’s] affect changed significantly when asked about what happened to lead to her no longer seeing her father. Her affect went from smiling and bright to flat and uncomfortable. She would not look directly at the single expert”.

48 The Single Expert noted that Timothy was also friendly and talkative on arrival

for his interview, but even before she could ask him why he was no longer seeing his
father, Timothy volunteered, “I don’t want to see him – I want to live with my mum”.

49 The Single Expert recorded:

Both children appear to be very aware of the level of anxiety, suspiciousness and anger that their mother is experiencing in relation to their father. This may very well have an impact on the children’s willingness to have access visits with their father. Both children are very close to their mother and they may want to lessen her level of anxiety by curtailing contact with their father. While [the mother] has tried to keep her concerns about [the father] from the children, she does admit in her affidavits that there are times the children have seen her be very upset in relation to issues with their father. The report from Relationships Australia indicates [the mother] has indicated to [Michelle] that [the father] had tried to kill her and that there was some type of incident related to [Michelle] and her father in the shower. It is possible that [Timothy’s] less assured self-concept could be related to having had

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contact with his father for a short period of time. However, it is also possible that his less assured self-concept is related to his sense of contributing to his mother’s anxiety in relation to his father.

50 The Single Expert concluded:

It very well may be that the children feel that they have to choose between their parents. In essence, they have indicated such through their verbal statements. However, it is very possible that the reasons for feeling that they have to choose are being experienced at a more subconscious level. It is likely that they realise that they can lessen their mother’s anxiety and distress by choosing to not spend time with the father. As their relationship with their father is not as well developed as with their mother, it is easier to choose her over him. Neither child could give the single expert witness any reason for why they no longer wanted contact with their father.

51 The Single Expert expressed the view that while the mother had not “purposely

tried to influence the children to not attend visits with their father”, she was concerned that the mother “has not encouraged these visits and has not been able to contain her own anxiety and discomfort with the visits and these two factors have impacted on the children”.

52 The Single Expert went on to say:

Another factor that may have contributed to the children’s reluctance to attend visits with their father is the fact that the visits had been going well. According to the Family Court plan, access contact would proceed to one with less supervision if the supervised visits went well. It may be that [the mother’s] level of anxiety increased when she realised that the visits were going well and that the children could soon progress to unsupervised contact with [the father]. [The mother] has significant concern that the children would be at risk if they were seeing [the father] unsupervised. This level of anxiety could have picked up on by the children and contributed to them trying to ease this anxiety by resisting visits with their father.

53 The Single Expert said that a further factor that may have influenced the children

was that the mother had become involved with her new partner around
1 November 2006. The Single Expert concluded it was possible that:

the entry of this new person in the family caused a distraction to the children that decreased their interest in spending time with their father. It may also be possible that the children sensed an increase in anxiety in their mother around the continuing presence of [the father] in their lives when she is beginning to consider moving on with a new relationship.

54 The Single Expert noted that the various possibilities she had raised “would be

occurring at an unconscious level with the children and would not necessarily be

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deliberate decisions made by the children. This could account for the difficulty both
children have in articulating why they no longer want to see their father”.

55 The Single Expert expressed concern about the children being put in a position

where they had to choose between their parents, particularly when they were about to have to adjust to a new life in the country and being part of a “blended” family. In these circumstances she recommended that the Court consider suspending contact with the father for the short term. She did not feel it was in the children’s best interests “to be put in a position where they feel they have to come to the assistance of their mother by rejecting their father”. She nevertheless recommended that during this period, when the children would not be seeing their father, the Court consider requiring the children to write to the father at least once a month and have the option of telephoning him if they wished. She also made recommendations about the father receiving information concerning the children.

56 The Single Expert said that in the longer term she was:

very concerned that unless positive, consistent contact occur between the children and [the father], the children will be at a disadvantage as they mature in terms of their relationships with partners and in their own sense of self. Whilst it is possible that the children will have the experience of a positive male relationship with their step-father, this will not entirely take the place of a positive relationship with their biological father. The single expert witness is concerned that [Michelle] could well continue the cycle of mistrust of men/father figures that her mother has developed because of her own family dysfunction. There are already some indications that [Timothy] is struggling with his sense of identity which for boys is very much linked to their relationship with their fathers.

57 The Single Expert expressed her view that the key to resolving the situation lay with the mother. If she was able to resolve her feelings, progress could be made.

58 After reviewing literature about “effective intervention strategies” in families

where there had been “alienating behaviour”, the Single Expert recommended that once the mother had moved to the country, and the children had settled into their new routine, the contact regime should resume. She considered the mother should be required to attend counselling to focus on her anxiety and perception of the value of having the children’s father involved in their lives. It was also recommended the children be required to attend counselling with a psychologist with the focus being on addressing their feelings about their parents and facilitating visits with the father. Other detailed proposals were made by the Single Expert to facilitate the proposed reintroduction of the father into the lives of the children, with a review of the matter to be scheduled at a later stage. Whilst the Single Expert recognised that this could be a “rather expensive undertaking”, she expressed the view that “the importance of these children being able to have a positive and meaningful relationship with their father needs to take precedence over the cost”.

59 In this second report, the Single Expert again discussed whether the children

were at risk of sexual abuse. She said she agreed with the mother that because of the ambiguity of what Michelle had said in her interviews in 2001 “sexual abuse cannot be

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ruled out”. She was nevertheless quite critical of the way in which those interviews had been conducted. She again recorded that the father “would score in the low risk category” on a range of risk assessment tools used in evaluating risk of sexual abuse.

60 Having had the benefit of reading this further report, the parties reached

agreement about the orders to be made at the time the trial was scheduled to take place in July 2007. These orders provided for the father to have telephone contact with the children each week, but made no provision for face to face contact. An order was also made by consent that “the mother do all reasonable and necessary things to cause [the children] to write a letter or card to be posted to the father once every calendar month”.

61 The mother purported to comply with this latter order by telling the children that

she would provide them with an envelope each month into which they could put anything they wanted to send to their father. She would then seal up the envelope and then post it to the father to demonstrate, so she thought, compliance with the court order. The envelopes were duly sent, but they were all empty (as the mother well knew). There was no indication that the mother made any real effort to ensure that the children sent a card or letter to the father, notwithstanding she had consented to the order, and notwithstanding her lawyer had told her she should try to ensure the children put something in the envelope when the father understandably complained about going to the Post Office to collect empty envelopes.

62 A further order to which the mother consented in July 2007 required the children

to attend on a clinical psychologist ([Mr C]) “to address issues concerning their relationship with their father”. The mother also consented to an order that she have counselling with a therapist “to address her anxiety, aspects of her own family dysfunction and her perception of the value of having the children’s father involved in their lives”. The proceedings were otherwise adjourned to monitor progress in November 2007.

63 Mr C provided a report dated 13 November 2007 in which he recorded that he

had seen the children on a few occasions between July and September 2007. Mr C noted that Timothy had continually repeated that his father “has hurted me” and complained that his father “growls at him”. Nevertheless, when Timothy was drawing family members as animals, he drew his father as a cow and later described cows as his favourite animal. Although Timothy said his father had scared him, he could provide no particulars.

64 Mr C reported that Michelle had very little recollection of her father. She told

him that when the father telephoned her home, “we don’t answer” (because he rang during their television shows). Nevertheless, when drawing pictures for Mr C, Michelle drew a heart that included her father’s name.

65 Michelle told Mr C that she did not want to write to her father and did not want

anything to do with him, although she admitted she was never frightened or scared of him. Mr C recorded that Michelle “appeared somewhat embarrassed over the time period now that she has not seen her father. It was very clear however there was no actual reason for her to not see him”.

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66 Mr C reported that the mother had told him, “I don’t want my children to see

their father – they get nothing from him – he can’t contribute to their lives”. Mr C went on to say, “both children [sic] completely deny the father having ever hurt them but the mother openly admits that she hates the father and the children know it. She is not going to encourage them to see a man whom she still believes is a paedophile”.

67 Mr C expressed his opinion that any further therapy for the children was

pointless in light, inter alia, of the mother’s attitude. Mr C went on to discuss the options available. One would be for the father not to pursue contact and wait for the children to want to have a relationship with him. The other would be to force the children into supervised contact. Mr C said, “in reality this is likely to not only be a failure but very stressful for all concerned and will most certainly reinforce for the children their mother’s attitude about the father as he will be seen as the ‘enforcer of contact’”. If there was to be supervised contact he recommended supervision by [the private agency], rather than the children being “stuck in one venue”.

68 Mr C’s report was distributed prior to the monitoring hearing in November 2007. At that hearing the matter was listed for trial in April 2008. Penny J, who had by this time assumed the conduct of the matter, laid down a timetable for the father to seek leave to amend his application to apply for the children to live with him. On 11 December 2007, her Honour made an order allowing the father to amend his application to seek such an order. The father said he adopted this course because he thought it would be the only way he could have a relationship with the children.

69 Penny J also made an order on 11 December 2007 for the father to spend time

with the children just before Christmas for one hour under the supervision of Relationships Australia. The mother duly took the children to Relationships Australia for the visit. A worker who had previously supervised visits was specially organised to support the children as they appeared to have been comfortable with her. Upon the mother’s arrival at the service, she told the supervisors that the children did not wish to see the father. Timothy started crying. The supervisor spoke with the children separately and reported that their reasons for not wishing to see their father were similar to those given on the previous attempt at contact. Although face to face time could not be agreed, the children did agree to the father coming to the door to say “goodbye”. The father told the children that he loved them and that was why he kept trying to see them. He asked them a few questions and they gave one word answers.

70 Another visit was scheduled for 17 February 2008, but that had to be cancelled by Relationships Australia.

71 On 30 March 2008 the children were brought to the contact service by the

mother, her partner ([Mr A]) and his young son. The supervisor then asked everyone, except Michelle and Timothy, to leave because the father would be arriving soon. The supervisor recorded that upon hearing this, Mr A’s son exclaimed, “But their dad is dead”. His father thereupon corrected him, but in any event the visit did not proceed.

72 Both Michelle and Timothy were insistent that they would not see their father.

They had no different explanations about why they would not see him than they had offered previously. This time they were not even prepared to say “goodbye” to the father. The mother subsequently booked two further visits, but the supervisors said

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they could see no point unless there was a change in the children’s position. The mother told the supervisors she had been trying to persuade the children to attend, but could not force them to do so.

73 On 22 April 2008, Penny J made an order for the children to spend supervised

time with the father at Relationships Australia on 27 April and 11 May 2008 (with make-up time in the event the visits did not take place). An order was also made for the mother to attend [a particular] Relationships Australia to “undertake such counselling necessary to enable her to properly prepare the children … to spend supervised time with [the father]”. The mother failed to comply with the order for counselling. In explaining to me why she failed to comply with the order, the mother said she had had already had counselling and that counsellors would not be able to change her mind about the father being a child molester. The mother also acknowledged that the Single Expert had recommended that she should attend on a counsellor/clinical psychologist; however, she had not done so (although she had spoken informally to a friend in the country who she claimed was a psychologist). The mother said she lived in a free country and was entitled to her own opinion – and her opinion was that the father was a child molester.

74 On 14 May 2008, Penny J made further orders for ongoing supervised contact at

Relationships Australia, initially for periods of one hour and then increasing to two hours each fortnight. On 26 August 2008 her Honour made an order for supervised contact at Relationships Australia for up to three hours each alternate Sunday. The order provided for the visits to take place away from the centre if recommended by the manager. On 17 February 2009, an order was made for the supervised visits to continue, but on this occasion Penny J specifically ordered that the supervised visits could take place at the father’s home or in a public place. The order also provided for the father to be able to telephone the children before each visit to arrange the activities

for the following weekend.

75 There was no detailed evidence of what occurred in each of the visits that took

place pursuant to these orders. However, on 22 May 2009 the coordinator of the service prepared a further report relating to the visits, which were noted as being held in the metropolitan area. The report is relatively brief and I will repeat it in full:

The family support workers who supported the visits have observed that the demeanour and behaviour of the children remains similar to that reported on previously. [Michelle] is often grudging and reluctant to fully participate in visits. [Timothy] takes his cue from [Michelle] but often appears to enjoy visits once they are underway. The children have complained to the regular worker that they resent having to come all the way to Perth so often to see their father; that they have other things they want to do at the weekend. When the worker asked if it would help if their father travelled down to see them occasionally [Timothy] said, “He wouldn’t come,” and [Michelle] said that there was nothing to do down there with him.

[The father] always greets the children warmly; he takes his cue from the children about seeking physical contact. It is very unusual for them to

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initiate such contact. [Timothy] is more responsive than [Michelle] to his
father’s physical presence.

Both children have enjoyed visits that have been structured with their particular needs in mind; they expect to be entertained. They enjoyed games arcades and horse riding for Michelle. They both express boredom if they think they are just ‘hanging around’. Their father remains cheerful and accommodating in the face of their complaints. It is noted that the bantering style of communication that existed between Michelle and her father is less evident.

On the visit held on 25/1/09 at the games arcade the worker observed, “Their father spends time with each child and is welcomed by both. [Michelle] was successful in strategy games and won an array of prizes. Her father was very encouraging and generous with his praise.

On 22/2/09 the worker noted “the pattern of the visits has changed over this period … with a high expectation that [the father] would have planned an activity for the visit that would keep the children entertained. Without an activity they often become bored, rude and demanding. Their father showed strong presence of mind in not becoming angry, lecturing or demanding of their compliance. He was able to be positive, playful, humorous and loving but still draw their attention to their behaviour and offer them chances to improve.”

76 The Single Expert interviewed the parents and children again in June 2009, following which she published her final report. It is not apparent that the Single Expert had been informed about what the mother perceived to be “threats” made by Penny J following publication of her earlier report. I was not privy to the details of these “threats”; however, it is common ground that at some stage Penny J warned the mother that if the contact arrangements did not resume (and work) she would give consideration to ordering that the children live with the father.

77 Whether she was aware of this dramatic change in the dynamic or not, the Single

Expert observed that there seemed to have been a decrease in the level of animosity between the parents. The children were now seeing the father on a fairly regular basis, albeit the visits remained supervised. The mother conveyed to the Single Expert her ongoing objection to any form of visits other than supervised contact. The mother did, however, indicate that she would not resist Michelle seeing the father unsupervised when she was older (and volunteered 16 years as the age at which Michelle would no longer be at risk).

78 In the course of her interview for this report, Michelle complained to the Single

Expert about the long drive to Perth for visits, claiming that she suffers from car sickness. She said she sometimes found the visits boring as she often did not enjoy the same activities as Timothy. She also talked about wanting to spend time with her friends on the weekend and complained about not being able to do her homework when she had to visit her father. Nevertheless, the Single Expert reported that Michelle “did not express any anxiety about being with her father or no longer wanting to see him”.

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79 Timothy told the Single Expert that his mother still worried when it was time for

him to visit his father. He said he did not know what she was worried about. Timothy told the Single Expert that he did not like visiting his father if it meant he would have to miss football. He said his father did not come to watch him play sports but he also said he would not mind if he did come to watch. Timothy wanted the visits with his father to remain supervised as he did not trust his father, but he could not say why.

80 The Single Expert concluded that both children appeared to be adjusting well to

their new life in the country and were also coping well with their visits with their father. The Single Expert said it was not possible to determine the elements that had contributed to the children’s continued adjustment but it appeared the move to the country had been very positive for them. It also appeared that the regular visits with the father had not been detrimental and may also have contributed to how well the children were doing. The Single Expert noted that while the children tended to downplay the positive aspects of their visits with their father, the reports from the supervisor had been very positive.

81 The Single Expert expressed the view that the family “has come a long way over

the past three years”. She noted that the mother had coped well with the renewed contact and that the children appeared to be starting to re-establish their relationship with the father. The Single Expert recommended that contact should continue as the children had not been adversely affected by the visits and the evidence suggested they had benefited from them.

82 The Single Expert also referred to research relating to the impact on children of

not having contact with a parent. As this research influenced her recommendation,
and as her summary of the research is relatively brief, I will repeat all she said:

There has not been much research on the effect of non-contact with a parent on the overall development of the child. Wallerstein (1980, 1987) has completed longitudinal studies of the impact of divorce on children. She notes that adolescence is one of the most vulnerable periods of development in terms of parental loss and that the need for a father, especially for boys, increases during adolescence. In a ten-year follow-up, Wallerstein found that no matter how much time an adolescent spent with his father, or how far away the adolescent lived from the father, the father remained a significant psychological presence, particularly for boys. A study completed by Hetherington (1972) suggested that the effects of father absence on daughters appear during adolescence and are exhibited mainly as an inability to interact appropriately with males. In a review of several large-scale samples, McLanahan (1999) found that father absence due to divorce is associated with less school achievement for both boys and girls, more unemployment for boys and early childbearing for girls. This study also found that joint-custody children scored significantly higher on adjustment measures than sole-custody children. McLanahan concluded that children in joint custody are better adjusted than children in sole (primarily maternal) custody. Amato and Gilbreth (1999) found that children do not actually need to be in a joint physical custody arrangement to show better adjustment, but noted that joint legal custody children typically spent a substantial amount of time with the father as well.

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Rohner and Veneziano (2001) reviewed six categories of empirical studies showing the influence of fathers’ love on children’s and young adults’ social, emotional and cognitive development and functioning. Overall, they found that father love appears to be as heavily implicated as mother love in offsprings’ psychological well-being and health.

83 Taking into account all of the matters to which she had referred, the Single

Expert recommended that the Court consider continuation of the regular visits. Although the Single Expert said she had given serious consideration to the mother’s concerns, she again expressed the view that Michelle was at a low risk of being sexually abused by the father. She also expressed the view that there were sufficient safety factors in place that would enable Michelle to protect herself if the father were to initiate such behaviour. She therefore recommended that the Court also consider ordering that the visits become unsupervised.

84 The Single Expert agreed with the father’s assessment that there should be

a gradual approach to the introduction of unsupervised time in the hope that, in due course, the children might be open to overnight visits. The Single Expert suggested (bearing in mind her report was dated 29 July 2009) that the Court consider beginning the overnight visits during the 2009/2010 summer holidays, with perhaps one night during the early part of the holidays and an entire weekend later in the holidays.

85 [Ms J], the coordinator of the Relationships Australia contact service, gave oral

evidence about what had occurred since the last report in May 2009. She noted that the visits had continued on a fortnightly basis, save for one visit which the service had to cancel. She had personally supervised the last two visits, having been informed by other workers that there had been a gradual deterioration in the children’s willingness to engage in the visits, all of which were arranged away from the service’s premises.

86 During the visits supervised by Ms J, the children resisted the father’s attempts

to engage them and were not prepared to demonstrate any affection. They expressed feelings of boredom and negativity, to the extent that the father suggested one of the visits be terminated. When this was suggested the mother was telephoned; however, after she had spoken to the children, they decided they would continue the visit. The children then went on to an activity which they appeared to enjoy.

87 Ms J, who was an impressive witness and has had long involvement with the

family, expressed the opinion that the quality of the visits appeared to deteriorate in the lead up to court events which might result in changes to the contact arrangements. She also noted that the father stayed positive in the face of considerable provocation from the children. She said that the father endeavoured to adopt an appropriate tone with the children in order to “lighten the atmosphere”.

88 Regrettably it has taken me longer than I had hoped to finalise these reasons

following the trial in September 2009. There has been no application to introduce further evidence and Ms J’s evidence is therefore the most up-to-date information of what has been occurring with the visits. I should note in this regard that my decision would not be affected were it to be the case that the visits have continued to go as poorly as the last few before trial did, or even if they have ceased altogether.

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Orders sought

89 The orders sought by the father were contained in a Minute filed on 6 August

2009, save that I was informed the father was not pursuing equal shared parental
responsibility.

90 The father proposed that for six months he spend unsupervised time with the

children in Perth from 9.00 am to 5.00 pm on one day each alternate weekend (arranged to suit the children’s sport). The father proposed that after the expiration of six months he spend time with the children each alternate weekend from Saturday morning until Sunday afternoon (or Monday in the event of a long weekend). He also proposed spending time with the children on other special occasions and having the opportunity to attend their sporting events, either in the country or in Perth. The father sought a variety of other orders to which reference will be made later.

91 The orders sought by the mother were contained in a Minute filed on 14 August

2009. She sought sole parental responsibility. She proposed that the father have time with the children on one weekend day each month for up to three hours, supervised by Relationships Australia. She also sought other orders which will be mentioned later.

92 The orders sought by the Independent Children’s Lawyer were contained in an

amended Minute received after the conclusion of the trial. The Independent Children’s Lawyer proposed that for the first six months the father have time with the children for up to five hours on one weekend day every four weeks. The Minute provided for the supervision to be slowly withdrawn during the course of each visit. It was also proposed that, subject to the children’s wishes, the father be at liberty to attend their sporting events in the country or in Perth. It was proposed that the parties would share the costs of the supervision. The Independent Children’s Lawyer also sought other orders which I will discuss later. The Minute concluded by proposing a review of the arrangements after four months.

The law
93	As the parties were never married, the proceedings fall to be determined under
the Family Court Act 1997 (WA). In the discussion that follows, reference will nevertheless be made to cases decided under the Family Law Act 1975 (Cth). The relevant provisions of the two Acts are substantially identical, with all amendments made to the Commonwealth legislation having been mirrored in the State legislation. In order to assist understanding of the cases, I intend to refer to the section numbers of the Commonwealth legislation. The corresponding State provisions can be ascertained by reference to the annotations embedded in the Western Australian Act.

Best interests and the objects of the legislation

94 Section 60CA makes clear that I must treat the children’s best interests as the

paramount consideration. In doing so, I will be guided by the relevant objects of the legislation and the principles underlying them. The stated objects aim to ensure that the best interests of children are met by:

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(a)	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

95 These objects are more comprehensive than the previously stated object of the relevant part of the legislation. Prior to the 2006 amendments, the stated object was:

…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

96 The first of the four “new” objects is far from novel. It echoes two of the guiding principles which were previously to be found in the legislation, namely:

(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)	children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…

97 The Full Court of the Family Court of Australia has previously considered the impact of statutory amendments dealing with the objects of the Family Law Act 1975. In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at [9.2] the Full Court said this concerning the 1995 amendments to the Act:

It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.

98 Notwithstanding the changes of emphasis and terminology made by the 1995 amendments, the Full Court was in no doubt about the core task of judges entrusted with responsibility for making decisions about the welfare of children. The Full Court said at [9.51] to [9.60] (my emphasis added):

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In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.

The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.

The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.

Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.

Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.

The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of

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the other sections, but the weight to be attached to individual components
of those sections may vary significantly from case to case.

This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in Mallett v Mallet … (1984) 156 CLR 605, and ZP v PS … (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.

As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.

In this approach no question of a presumption or onus arises… The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not ‘to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary’…

In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.

99 It will be noted that the Full Court made many references to s 65E, which was

the provision making the best interests of the child the paramount consideration. Section 65E has been repealed, but only for the purpose of advancing it to a position

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of earlier prominence in the Act. In my view, many of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the 2006 amendments. In particular, it remains the case that the paramountcy provision defines the essential issue and the legislation still contemplates individual justice.

Parental responsibility and the outcomes the Court must consider

100 In enacting the 2006 amendments, Parliament has given legislative voice to what

was already a presumption that responsibility for making decisions about children should ideally be exercised jointly by their parents. The presumption in favour of equal shared parental responsibility does not apply if there are reasonable grounds to believe that either parent, or a person who lives with either parent, has engaged in child abuse or family violence (as defined by the Act). The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.

101 In cases where the Court decides not to order equal shared parental responsibility, the legislation is silent about the outcomes the Court should contemplate in making the decision most likely to promote the best interests of the child. The High Court has said that in such cases the Court is “obliged to give careful consideration to the proposed arrangements of the parties”, but it is not bound by them: U v U (2002) 211 CLR 238 at [80]. In undertaking that “careful consideration”, the Court is directed by the statute to take into account a catalogue of potentially relevant matters, which will be discussed later in these reasons.

102 If, on the other hand, the Court does propose to order equal shared parental responsibility, the Act requires the Court not only to have regard to the catalogue of potentially relevant matters, but also directs the Court to consider two specific outcomes. In the present case it is agreed that there should not be an order for equal shared parental responsibility (which clearly would never work) and it is therefore unnecessary for me to discuss those outcomes.

The primary and additional considerations

103 As will be apparent from the discussion above, my overriding objective must be

to make the orders most likely to promote the children’s best interests. The legislation itself specifies those matters that I must take into account in determining the orders to make. These are divided into “primary considerations” and “additional considerations”.

104 This dichotomy between “primary” and “additional” considerations was

introduced by the 2006 amendments. There is now some judicial guidance concerning the way in which respect is to be paid to Parliament’s intention in specifying two factors as being the “primary” considerations. The Full Court (Warnick and Thackray JJ, with whom Le Poer Trench J agreed) said this in Marsden & Winch (No. 3) [2007] FamCA 1364 at [77]:

The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably

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clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.

105 See also Champness & Hanson (2009) FLC 93-407 at [101] to [103] and

Mulvany & Lane (2009) FLC 93-404 (per May and Thackray JJ) at [84].

Primary considerations

106 Both of the primary considerations are of crucial importance in these

proceedings. The first concerns the benefit to the children of having a relationship with both their parents and the second concerns protection of the children from harm. The father’s case focuses on the first of these considerations and the mother’s case focuses on the second. They are, of course, not always mutually exclusive.

The benefit to the child of having a meaningful relationship with both of the child’s parents

107 Although the mother has in the past been of the view that the children should

have no relationship with their father, she now considers it would be in their interests to have some relationship. However, the benefit she sees in occasional contact with the father is that the children would then not picture him as a “fantasy figure”. She thinks if they continue to see him occasionally they will appreciate that he is the worthless person she perceives him to be.

108 The Single Expert considers it is most important for the children to have

a relationship with both of their parents. They already have a close relationship with their mother and are likely to continue to do so. They have had very limited opportunity to develop a relationship with their father. For the reasons given by the Single Expert, I am of the view it is most important that the children have an opportunity to maintain and hopefully improve the relationship they have with their father. This will give them a better sense of their own identity and may assist them in developing better relationships with others as they mature.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

109 This is a factor of great significance, given that the mother’s opposition to

unsupervised visits arises out of her conviction that the father has molested Michelle
and is waiting for the opportunity to kidnap the children and rape Michelle.

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110 In order to determine whether there is any basis for the mother’s fears about the

future, it is important to assess whether there is any substance about what she believes happened in the past. The difficulty, however, in embarking on that task is that the relevant events occurred nearly a decade ago. Furthermore, the mother’s case is almost entirely dependent on her own evidence and that of her mother. Regrettably, neither presented as a reliable witness. This is not necessarily because they were not telling the truth as they saw it, but because both have rigid personalities and odd ways of processing information. This has resulted in them subscribing to any theory that supports their relentless hostility to the father.

111 The mother did not have the benefit of legal representation and prepared her own

affidavit. Her evidence did not provide a clear timeline of events relating to the alleged abuse of Michelle. To the extent that detail was provided, it conflicted in some respects with the history provided by to the authorities. Furthermore, “information” of significance provided to the authorities did not find its way into the sworn evidence. To add to the confusion, the version of events noted by DCD workers during their interview with the mother on 11 January 2001 differs in some respects from the signed statement the mother gave to the police on 2 February 2001.

112 This lack of clarity in the evidence is unfortunate since it is vitally important

when considering allegations of sexual abuse of a young child to have a clear understanding of the sequence in which “disclosures” were made and the way in which the ensuing investigation unfolded. The ways in which disclosures by small children can be contaminated by the innocent (or sometimes malevolent) actions of trusted adults were discussed in detail in my judgment in Mother and Father [2006] FCWA 89. I consider that much of what I had to say in considering relevant research in that case has implications in these proceedings.

113 There is no evidence of what Michelle’s mother and grandmother may have said

or done which may have either intentionally or unwittingly prompted her to “disclose” abuse when she was just two years old. However, my assessment of both of them (but especially the grandmother) is that it is highly likely their behaviour would have badly contaminated the information on which any assessment could have been made of the accuracy of the “disclosures”.

114 The central component of the mother’s allegations is that in the latter part of

2000, Michelle told her on more than one occasion that the father had hurt her by putting his fingers in her vagina. Given the absence of a clear timeline in the mother’s sworn evidence, I will summarise her narrative by reference to the statement she gave to the police in February 2001, which was signed by her and declared to be true under threat of criminal penalty. The earlier version provided by her, which was recorded by DCD workers in January 2001, was not signed or adopted by her.

115 The mother told the police the first disclosure was made on 1 October 2000 when Michelle complained of having a sore “fan”. When the mother asked what was wrong, Michelle replied, “Daddy put hand there. Daddy hurt me”. The mother said she saw Michelle’s vagina was a little bit red, but she thought that the father had “just wiped her in the toilet”. The mother claimed she had nevertheless spoken to Princess Margaret Hospital (“PMH”) and her own counsellor about this, but was told there was nothing she could do. The mother said she did not raise the issue with the father and

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instead went off to a resort for a week on 8 October 2000, leaving her two very young children with the grandmother. (Although it is hard to believe that the mother left behind not only Michelle but also Timothy, who was just a few months old, this is what she told the police in her statement.)

116 Upon her return home from the resort the mother claimed that while she was

changing Timothy’s nappy, Michelle pointed and said, “Timothy has a noo noo”. When asked by her mother who else had a “noo noo”, Michelle replied, “Dad”. When asked if she had seen her father’s “noo noo”, she said she had and “held her hand out like a cup”. The mother told the police that she never called a penis a “noo noo”, but said this was the name of the vacuum cleaner character on “Teletubbies”, which she said Michelle used to watch with the father.

117 The mother told the police that the father was away on a short holiday overseas

at the time she had this further conversation with Michelle. The mother said she collected the father from the airport on his return and allowed him to continue to stay overnight at her home. She said that on 13 November 2000, the day after the father had spent a weekend at her place, Michelle again complained of a sore “fan”. When asked “what happened”, Michelle pulled down her pants and said, “Daddy put finger in there” and pointed at her vagina. When asked where it happened, she said, “Mum’s bed”. When asked how many times her father had hurt her, she said “two times”.

118 The mother told the police she then made an appointment to see a GP. He

undertook an internal examination but said the result was inconclusive. The mother said she then rang the person she had spoken to previously at PMH, who told her that she would telephone DCD for her. The mother says she then had many conversations with DCD about the matter (although there is no record on the DCD file of this occurring, nor of any telephone call from PMH).

119 The grandmother also claimed to have witnessed an interaction between the

father and Michelle which convinced her that the father was engaging in inappropriate sexual contact with the child. The mother told the police about this event, which is said to have occurred on 17 November 2000. The grandmother was visiting the mother’s home where the father was in attendance (notwithstanding that by this stage two disclosures of digital penetration had been made). The grandmother said she observed the father call Michelle over to him, whereupon she noticed the little girl grab her father around his leg, before “fondling” his “privates”. This was said to have occurred whilst the father was standing in full view of the grandmother. The grandmother claims she told Michelle to come away, following which the father then sat down near where the grandmother was seated, whereupon Michelle crawled up on his lap and again began playing with his genitals. Whilst the grandmother tried to suggest that the initial “fondling” had gone on for an extended time, she ultimately conceded it was momentary.

120 The version of this event given to police by the mother differs in material

respects from the version the grandmother gave in evidence before me. The mother said she was inside at the time of these events and the first she heard was the father saying to Michelle “Daddy told you not to do that”. She then heard the grandmother say in an angry voice, “What is she doing?”. The mother claimed that the father then put Michelle down and said, “She thinks I’ve got a smelly dick”, whereupon the

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grandmother exclaimed, “I’m leaving, walk me out”. The grandmother telephoned the mother later that night and reported that she had observed Michelle playing with the father’s penis through his pants.

121 The grandmother’s affidavit sworn in 2007 was ultimately not relied upon;

however, I note in that document the grandmother claimed it was she who told Michelle to stop touching her father’s genitals, rather than the father saying it, as the mother said was the case when she gave her statement to the police. The contradictions in the statements were not put to either witness in cross-examination.

122 In any event, the grandmother’s oral evidence did not satisfy me that anything

untoward occurred on the evening in question. If she is to be believed, the father allowed Michelle to engage in conduct which he found sexually gratifying in full view of the grandmother. The more likely explanation is that the child had innocent contact with the father’s genital area and the grandmother leapt to a sinister conclusion (perhaps informed by her being informed that Michelle had already made “disclosures” to the mother). It needs to be kept in mind that the grandmother must live with the knowledge that she failed to protect her own children from sexual abuse. This fact would make her sensitive to the possibility that the same thing might be happening to her grandchildren.

183 My major concern about a move from supervised to unsupervised time is the

impact on the mother’s psychological health. The mother will have a greatly heightened sense of anxiety as a result of such a change. In arriving at my decision I have had regard to the unchallenged evidence of [Ms W], a senior social worker with the [Suburban] Health Service, who provided a report in November 2006 concerning the counselling she had been providing to the mother since 2000. Ms W noted that the mother “has a tendency to experience very strong emotion in stressful situations”. She went on to say, however, that the mother was:

well able to express these emotions and suffer and work through them in a healthy and functional way… I have found that while she does not avoid the pain and strength of her feelings, neither does she cease to function as

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a result of them. She has shown herself capable of tolerating a great deal of emotional discomfort, willing to seek and accept appropriate support when necessary, and able to care for her children and continue to work while going through very stressful situations.

184 Ms W did also say that while the mother has managed to cope with the trauma

she has experienced in life, she would find unsupervised contact much harder to tolerate, because she will see that it is her child who will be at risk. However, the evidence also suggests that over more recent years the mother has made quite significant advances in her personal development. I consider that, after the initial upset, she will find sufficient resources to accommodate the anxiety she will feel as a result of my decision.

185 I have given consideration to whether I should again order the mother to

participate in some form of therapy to assist her to deal with the concerns I accept she will feel in moving into an unsupervised contact regime. I do not, however, consider that this is likely to achieve anything. The mother announced during the trial that “God himself could stand in front of me and I would not change my mind”. She said she had “the ability to know” the father was a molester because she was herself a victim of sexual abuse and speaks to people who are victims of abuse.

186 The mother has experience in accessing resources to assist her to deal with the

difficulties she has experienced in her life and I am satisfied she would utilise those resources if she needed them. The Single Expert’s opinion was that there would be no benefit in ordering the mother to attend any further counselling.

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

187 The practical difficulty associated with continuation of supervised visits is that

Relationships Australia is no longer prepared to accommodate fortnightly visits. The agency has been facilitating visits for this family for a very long period of time. The resources of supervision services are limited and must be directed to those families who most need them. Henceforth, the most Relationships Australia will be able to offer is four hours supervised contact every month.

188 There is also expense associated with the supervision of contact, which the

father has been obliged to meet, notwithstanding that he has also been required to meet
very significant levels of child support.

189 One other difficulty relates to the fact that the mother is now living in the

country, which is a two hour drive from Perth. Realistically, visits in Perth cannot start earlier than about 10.00 am and need to conclude by 3.30 pm on those occasions when the mother is travelling back to the country (as I accept that she does not like travelling at night). Once a month, however, the mother comes to Perth with her de facto partner to facilitate contact arrangements with her partner’s son. On those occasions it would be feasible for the contact to finish a little later, as the mother’s partner would then be able to drive home.

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190 A further practical difficulty concerns the activities in which the children are

involved in the country. If they come to Perth to visit the father, one or other of the children will miss out on any sporting activity arranged on the day of the visit. At the time of trial Michelle had sporting commitments on Saturdays and Timothy had commitments on Sundays. The mother’s very sensible suggestion was that the visits alternate between Saturday and Sunday, ensuring the children missed out on the same number of sporting engagements. It would also clearly be desirable to ensure that the visits fit in with the timetable for the contact between the mother’s partner and his son.

The capacity of —

(i) each of the child’s parents; and

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

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

191 In these proceedings the primary focus has been on the father’s capacity to

attend to the children’s needs during the limited time they might spend with him. I am satisfied that he could make adequate arrangements whether or not the visits were for a few hours or for a weekend.

192 The main issue of concern would be whether the father has the capacity to deal

with the children’s emotional needs, which could be significant during any transition to unsupervised time. The evidence from the Relationships Australia supervisors indicates that the father has the capacity to manage fairly difficult situations and I consider he will be able to cater adequately for the children’s emotional needs during what could be a trying time.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

193 The children are now 12 and 9. They now have a greater capacity to protect

themselves against the sort of behaviour which concerns the mother. On the other hand, their increasing maturity means that it could become more difficult to force them to spend time with the father. The mother admits that her strategy has been to delay matters long enough until the children are of an age where the Court will not make them see the father against their stated wishes. The mother should not, in the unusual circumstances of this case, place too much hope on such a strategy. There also remains the possibility of a change of residence, although there will be no need for the Court to contemplate this if the mother encourages the children to go on the visits, which I am confident she will be able to do.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

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194 In many respects both parents have demonstrated a good attitude to the responsibilities of parenthood.

195 The mother has provided a very good upbringing for the children and has settled

them into a new community. She has also behaved in a fashion which I am sure she regards as being protective of their wellbeing. However, as I have explained to her, while being protective is an essential quality of a good parent, there is a stage at which such conduct can become an obsession and not in the best interests of the children.

196 To her considerable credit, the mother has put herself out over a long period by

making numerous visits to Perth to facilitate the contact visits. Although it was her decision to move to the country, these journeys must be tedious and tiring, especially as she has a busy life attending to her family while working part time.

197 The father has demonstrated a good attitude to the responsibilities of parenthood

in that he has remained in regular employment and has paid very substantial amounts of child support – which for many years has been about all he has been able to contribute to the well-being of the children. He has, over an extended period, made efforts to have contact with the children, at considerable personal expense, given that he has had legal representation in pursuing his claims. I am not satisfied that his motive has been anything other than a desire to ensure that the children can develop a relationship with him. I am, however, very troubled by his aggressive and violent behaviour in November 2000 and his abusive conduct towards the mother at other times. This reflects poorly on him not just as a partner but as a father to the children.

Any family violence involving the child or a member of the child’s family

198 I have already discussed the father’s past violence. Although the father claims

he was unaware the children were at home during his rampage in 2000, I am satisfied they were present. I am unsure to what extent the children witnessed the father’s behaviour but to the extent they were aware of what was happening it would have been terrifying.

Any family violence order that applies to the child or a member of the child’s family, if —

(i) the order is a final order; or

(ii) the making of the order was contested by a person

199 The mother last sought a restraining order in 2007, but her application was

refused.

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

200 I accept that an order for unsupervised contact is more likely to lead to further

proceedings than an order for contact to be supervised. My impression is that if I was to order supervised contact the father would accept that he is unlikely ever to see the

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children in unsupervised circumstances until the children themselves decide they want to see him. On the other hand, if I order unsupervised time the mother is likely to complain that the children are unhappy and distressed and will seek to have the order discharged or varied. There is also the prospect of contravention proceedings (and potentially an application by the father for residence) if the mother does not ensure that the children attend for contact visits.

201 While it is usually preferable to make the order least likely to lead to further

proceedings, this is not always appropriate. I regard this factor as being of much less
significance than most of the other matters discussed.

Credibility

202 Before moving to discuss the orders to be made in light of my findings, I will make some observations concerning the credibility of the witnesses.

203 Quite apart from the difficulties associated with recalling events which occurred

many years ago, I did not find either party to be particularly credible. Nevertheless, there was nothing in the father’s demeanour, or the answers that he gave under cross-examination, which suggested he was not telling the truth when denying he had ever abused his daughter. I have, however, already said that I consider the father minimised his aggressive conduct and I found unconvincing his explanation of his behaviour when he ended up in bed with a teenage visitor to his home.

204 I did not necessarily consider that the mother had deliberately set out to mislead

the Court. She was, however, so anxious to protect her children that she was inclined to give the answer which she considered most likely to advance her case. The Single Expert noted that the mother “biased her responses excessively in order to present her relationship with the children in a positive light” and also responded “in a defensive manner and attempt[ed] to look good and deny any sources of stress”. The main difficulty, however, with the mother’s evidence was that she was inclined to leap to conclusions adverse to the father. I recognise it is not easy for the mother to deal dispassionately with these matters given that she herself has been the victim of sexual abuse and given that she suffered abuse during her relationship with the father.

205 I found the maternal grandmother to be an unsatisfactory witness. She is very

poorly disposed towards the father and she too was prepared to jump to conclusions based on little or no objective evidence. I have already said that Ms D was generally not a reliable witness. The credibility of the remaining witnesses (the Single Expert, the police officer, the DCD worker and Ms J) was not in doubt.

Discussion

206 This is not an easy matter to determine. There are many aspects of the father’s

behaviour which are of considerable concern. I have also been troubled by aspects of the mother’s behaviour. I am especially concerned about the impact on the children of being caught in the middle of the dispute between their parents which has now gone on for far too long. Although the mother tried to paint a rosy picture of how well the

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children are progressing, the evidence suggests that Timothy at least has had quite
a few issues which are worrying his teachers, if not his mother.

207 I accept the opinion of the Single Expert that it will be in the children’s interests,

particularly their long term interests, to be given an opportunity to maintain and develop a relationship with their father. Notwithstanding his shortcomings, he is the only father they will ever have. The evidence satisfies me that freed from the mother’s influence, the children would be pleased to have a relationship with their father. The time has come for the mother to make a genuine effort to give them that opportunity – because I am quite satisfied she wants only what is best for the children.

208 I have carefully considered the mother’s concerns about the risk the father poses.

I accept that, in some respects, she has cause for concern about the father. However, I do not find him to be an unacceptable risk to the children. I am satisfied he has obtained a degree of maturity and equanimity. I consider he has something to offer his children and that they would benefit from having a relationship with him. I also consider the continuation of contact in a supervised setting is artificial, restricting and expensive. It continues to lead the children to believe that there is something about their father which is to be feared, which will inevitably limit the quality of the relationship they will be able to develop with him.

209 Whilst I have determined it is in the children’s interests to spend unsupervised

time with their father, I do not consider this should be as frequent as the father wants. Nor do I consider it particularly likely that the arrangement will move to the next stage the father wants, namely overnight. If the children were to express a firm view they wanted the visits to extend to overnight that is something I would contemplate ordering. It is not, however, something that at present I am inclined to order because I believe that if the mother felt there was a real prospect the visits might extend to overnight she would then redouble her efforts to ensure that the daytime contact failed. This would defeat my primary intention of ensuring that the father spends regular time with the children, without the restrictions associated with supervision.

210 The father appreciates that the children have commitments in the country. He

says he is anxious to work around those commitments. He also recognises that as the children mature they will increasingly want to spend time with friends rather than parents. The fortnightly journey is a tedious and tiring one and does interfere with the children’s other activities. I consider that whilst it is a very limited regime, a monthly visit to Perth will suffice to ensure the father spends time with the children and is given the opportunity to develop a relationship with his children.

211 If the visits are scheduled monthly I consider there is a greater chance of them

actually occurring without the necessity for intervention by the Court than if they are made fortnightly. The visits then could potentially be timed to fit around the visits by the mother’s partner to Perth for his son’s contact regime. If, however, for any reason a visit does not occur then my intention is that it will be rescheduled for another day in the following two weeks to ensure that the children get all of the time with their father I intend to order. I wish to assure the mother that I will take no nonsense about the children not being prepared to come for the visits. She has the means to persuade the children to come on the visits and I expect her, as a competent mother, to ensure the

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visits occur. If this happens there will be no need to even consider options such as
a transfer of residence to the father.

212 Given that the father’s time in Perth with the children will be limited to just

12 visits a year (and even then daytime only), I consider the children should have the pleasure of having their father watch them play sport in the country occasionally. This would be particularly good for Timothy who has said he would not mind his father coming to see him play sport. His school reports indicate he is a very competitive boy, who excels at sport. In my view it would do Timothy’s self-esteem a great deal of good if he could demonstrate his sporting prowess to his father. Visits to the country will also demonstrate to the children that their father is prepared to put himself out by taking a long journey just to see them play. Ideally, after the game finishes, the father would be able to take the children to a café for a meal or snack before returning them to the mother. I am not satisfied, however, that it is appropriate to institute such an arrangement immediately. In my view the unsupervised time in Perth should settle down before introducing the added component of the father travelling to the country. My intention is that the father be able to go to the country every alternate month (i.e. six times a year) for this purpose.

213 Although in the earlier stages of the trial I had very serious concerns about

whether the mother would ever cooperate with orders of the sort I now intend to make, I observed that by the end of the hearing she appeared to have moderated her views. Having got off her chest her strong repulsion for the father and what he has done to her, and having fought tooth and nail to persuade me not to order unsupervised time, the mother then engaged in a very businesslike conversation with me about how an unsupervised arrangement could be made to work. I thought that was very much to her credit. It reminded me that the Single Expert had said that the mother possesses “sufficient resiliency to bounce back from situational upsets”. This capacity must surely be what has held her in good stead as she has made enormous advances in her life after her very troubled childhood.

Proposed orders

214 I indicated earlier that each of the parties and the Independent Children’s

Lawyer sought a number of orders which I have not yet discussed. I have considered the various orders sought, many of which were not contested. Although I do not propose giving specific reasons in relation to each of the orders, I can say that the orders I propose are those I consider will promote the best interests of the children.

215 I have not made the order sought by the mother to allow her to take the children

on overseas holidays. Provided that the contact arrangements I have ordered work smoothly, there should be no reason that the mother and children not be able to enjoy overseas holidays, just as they have in the past. However, the priority at the moment should be putting the new contact regime in place and letting it settle down. If the mother wishes to make an application for the children to travel overseas for a specific overseas holiday I will hear that application promptly. I anticipate that after the new contact regime settles down, I will be able to make an order giving the mother general liberty to take the children on overseas holidays without requiring permission.

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216 Each party sought an order for costs. I do not propose to deal with the

applications for costs at the present time. I will consider those later in the year when
I review the operation of the new contact orders.

217 It will be seen from the orders set out below that I consider there has to be

a staged process to the introduction of the new arrangements. I anticipate the mother will be upset by my orders, since I have not agreed with her that the contact must be supervised. I anticipate the father will also be upset, since I have not given him the amount of contact he has sought and I have been highly critical of aspects of his past conduct. Neither party is likely to be impressed by the fact I did not consider them to a reliable witness (although I hasten to add that being a poor witness does not make someone a poor parent).

218 I will not make an order for counselling for the children. I agree with the Single

Expert that whilst this would do no harm, it is unlikely to do much good either. The children have counselling available to them at school; however, I am satisfied they will not need any additional counselling if their mother properly prepares them for the visits I propose to order.

219 In these circumstances the parties will need time to digest and accept the

decision I have made – and the children will also need a little time to be prepared for the gradual withdrawal of the supervision arrangements. These factors have been taken into account in the way I have framed the orders. I have also given some flexibility to the Relationships Australia staff to introduce the unsupervised visits, since they have a good knowledge of the family dynamics and vast expertise in handling such transitions. I would anticipate that Relationships Australia staff will consult with both parents about the way the contact will move to unsupervised but neither parent will have any veto on decisions Relationships Australia staff make in handling the logistics.

220 I have given some consideration to whether the mother ought to make some

contribution to the costs of supervision. Her attitude is that she should not have to pay because it is the father who is the risk. I have assessed that the father is not an unacceptable risk to the children; however, I consider he should pay for the few remaining supervised visits because the mother has to bear all the cost of bringing the children to Perth.

221 Although the visits will be moving to unsupervised, I consider the changeover

should still occur at a handover service. This will mean the parties do not need to come into close contact with each other and there will be an “honest broker” to assist in smoothing the arrangements. It will also ensure that an independent person sees the children at the start and finish of each visit, which will have potential benefits. If both parents are in agreement they can, after a few months, dispense with the supervised handover, but if either party wants it to be reinstated they can so determine, without having to come back to Court.

222 There will be expense associated with supervised handover, but it is modest in

comparison to fully supervised visits. I consider both parents should share this expense equally. The mother would be coming to Perth anyway for the monthly

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contact visits for her partner’s son. The supervised handover is for the benefit of both
parents, as well as their children and hence it is fair the costs be shared.

223 In making the orders as I have, I have noted that the father said he was entirely

flexible in relation to the timing of visits. He was content for the mother to fix the times so long as he had some adequate notice in writing of when the children would be coming. The mother will also need adequate notice of when he will be visiting the country, as she will need to make plans around the fact that the children will be spending a few hours with their father after he comes to watch their activities.

224 One important question is who will inform the children of the outcome of these

proceedings? The mother said at trial that the Independent Children’s Lawyer could tell them. It would be a pity if the mother persisted in this view. She is the person to whom the children are most closely attached. She is the person best equipped to prepare them for the next stage in the development of their relationship with their father. She is the key to ensuring that the new arrangement works and the children are not subject to unnecessary distress. I will, however, delay making my decision about this issue until after I have heard from the mother following the delivery of this judgment. I have arranged for the parents to speak with the Court’s most experienced Family Consultant at the time they receive these reasons so they can talk through the ways this can be best handled.

225 My expectation in ordering that there will be unsupervised contact on a monthly

basis is that the mother will take appropriate steps to ensure that it happens. It is in the interests of the children that this happens without further unhappiness or distress to them. The best way the mother can ensure that this occurs is to assure the children that she is now supportive of such an arrangement and encourage them to take part in it happily. I am confident that if she does this then the arrangements will work well. If she does not, then she will cause considerable distress to her children, which is something that I am satisfied she would want to avoid.

226 The orders I propose are set out below. I will hear from the parties about the form of the orders and about any logistical issues I may have overlooked:

1. All parenting orders in relation to the children, MICHELLE, born February 1998, and TIMOTHY, born May 2000 be discharged.

2. The mother, Ms WALTER, have sole parental responsibility for the children.

3. The children live with the mother save as provided for in these orders.

4. Until further order of the Court, the father, Mr CAMBRIDGE, spend time with the children as follows:

(a) for the next four months on one day per calendar month on dates to be nominated by Relationships Australia (after consultation with the mother and father) for a period of six

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hours or such other greater or lesser time as may be

nominated by Relationships Australia;

(b)	after the expiration of four months from the date of these orders, from 10.00 am to 4.00 pm on one weekend day each calendar month, such time to be exercised in Perth;
(c)	after the expiration of six months from the date of these orders, and in addition to the time referred to in paragraph 4(b), for six hours each alternate calendar month, such time to be exercised in the country town or such other place in the region as the father may nominate.

5. The mother shall deliver and collect the children for the purposes of the father’s time with the children pursuant to paragraphs 4(a) and (b) of these orders.

6. The father’s time with the children pursuant to paragraph 4(a) shall be supervised by Relationships Australia provided that the supervisor shall be at liberty in his or her complete discretion to allow portion of each visit to be unsupervised, so long as the supervisor is present at the commencement and conclusion of each visit.

7. The father’s time with the children pursuant to paragraph 4(b) shall be unsupervised but the handover at the commencement and conclusion of the visits shall be supervised by Relationships Australia or at such other agency as may be nominated by the Independent Children’s Lawyer.

8. In the event the parties agree in writing, the handovers pursuant to paragraph 4(b) may become unsupervised at the expiration of six months from the date of these orders. If thereafter either party wishes the handovers to again become supervised that party may so elect by advising the other party in writing, provided they have first contacted the last handover service used and put in place the necessary arrangements.

9. The father shall pay the fees of Relationships Australia for the visits referred to in paragraph 4(a) but the mother and father shall each pay one half of the fees of the supervision service for the handovers required for the visits referred to in paragraph 4(b).

10. The mother shall inform the father in writing not less than one month in advance of the dates on which she proposes to bring the children to Perth for the visits referred to in paragraph 4(b).

11. In the event a visit by both children does not take place on the dates nominated by the mother for the purposes of paragraphs 4(a) and 4(b), the father shall have a make-up visit not later than 14 days

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thereafter, with the mother to inform the father of the date of the visit by letter or email not later than the day following the cancelled visit. The mother shall include in the letter or email a full explanation why the scheduled visit did not proceed. Nothing in this order shall be interpreted as meaning that the mother is entitled to cancel a visit for anything other than a “reasonable excuse” within the meaning of s 205E of the Family Court Act 1997.

12. The father shall inform the mother in writing not later than one month in advance of the dates and times on which he proposes to have time with the children pursuant to paragraph 4(c) of these orders.

13. The mother shall give the father notice in writing of the dates, times and venues when each of the children will be playing weekend team sport. The notification of the fixtures is to be provided promptly after they become available and the mother shall notify the father promptly in the event there is any change.

14. Should he so elect, the father may attend one of the children’s sporting fixtures as part of his time with the children pursuant to paragraph 4(c) of these orders. In that event:

(a)	the father’s time with the children shall be deemed to have commenced at the start of the game he is attending;
(b)	the father shall remain well away from where the mother is observing the game (with the father to determine what is an appropriate and practicable distance);
(c)	the mother shall encourage the child who is not playing, if present, to spend some time with the father during the game (but she shall not be in breach of this order in the event the child elects not to do so);
(d)	at the conclusion of the game the mother shall ensure that both children go to the father to spend the balance of the six hour period with him;
(e)	at the conclusion of the six hours the father shall return the children to the mother at a local roadhouse or other public place in the country town (to be determined by the mother).

15. In the event any visit provided for in paragraph 4(c) is not associated with a sporting event, the visit shall commence and end at a local roadhouse or other public place in the country town (to be determined by the mother).

16. The father shall be at liberty to telephone the children once a fortnight and the mother shall ensure that each child speaks with

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the father for not less than three minutes or such shorter period as the father himself may determine. The father be at liberty to telephone either the mother’s home or her mobile number for this purpose. In the event the father is unable to make contact after two attempts he shall advise the mother by text message or email (with the mother to determine by which means she is to be informed) and the mother shall thereupon ensure the children telephone the father within the next 48 hours and each speak to him for not less than three minutes or such shorter period as the father himself may determine.

17. The father shall be at liberty to contact the children’s school(s) and teachers to obtain information about their schooling and to request copies of school reports, school newsletters and the like. In the event the school is not prepared to comply with such a request the mother shall provide to the father copies of all school reports, school newsletters and any correspondence received from the school(s) promptly after receipt by her.

18. The father shall be at liberty to attend the children’s school for special events to which parents are invited provided (until further order) he does not attend more than one event per term and provided he informs the mother in writing not less than 14 days in advance of his intention to attend.

19. The father shall be at liberty to send cards and letters to the children and the mother shall ensure any such cards and letters are given to the children.

20. The father be at liberty to communicate with the children via email and the mother shall facilitate the communication by obtaining an email account for the children and providing the email address to the father.

21. The mother be restrained by injunction from:

(a)	denigrating the father to the children or in the presence of the children or permitting any third person to denigrate the father to the children;
(b)	referring to the father as a sexual abuser to the children or in the presence of the children or permitting any third party to do so.

22. The mother and father shall each inform the other promptly in the event either child sustains any serious illness or injury whilst in their care.

23. The proceedings be adjourned to a date to be fixed before Thackray CJ in about four months time:

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(a)	for monitoring;
(b)	to consider any minor variations to the terms of these orders;
(c)	to determine arrangements for contact on or around Christmas Day/Boxing Day in 2010 and succeeding years;
(d)	to hear the mother’s application for permission to take the children on holidays overseas; and
(e)	to hear the applications for costs (if pursued).

24. In the event any scheduled visit does not take place, and provided that the make up visit arranged also does not take place, the father shall be at liberty to seek to have the proceedings relisted before Thackray CJ as a matter of urgency.

25. The proceedings otherwise stand adjourned generally.

I certify that the preceding [226] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate