Dallon and Macbride

[2020] FamCA 673

FAMILY COURT OF AUSTRALIA

DALLON & MACBRIDE [2020] FamCA 673

FAMILY LAW – CHILDREN – Parental Responsibility – With whom the children shall spend time – Where the children currently live with the mother and have not spent time with the father or the paternal grandparents for almost three years – Where an allegation of sexual abuse was made by the eldest child – Where the father was charged and a protective order [ADVO] made – Where the child retracted the allegation - Where the charge was withdrawn and the protective order revoked – Where the mother opposed  resumption of time and communication – Where there is not an unacceptable risk of harm to the children in the care of the father – Where the children have had previously a meaningful relationship with the father and the paternal family – Where it is in the best interests of the children for there to be a restoration of such a relationship – Orders for slowly expanding periods of time over 16 months culminating in alternate weekends school to school and thereafter block holiday time in addition.

Family Law Act 1975 (Cth) ss 60CC, 61DA

APPLICANT: Mr Dallon

FIRST RESPONDENT: Ms Macbride

SECOND RESPONDENT: Mr B Dallon and Ms C Dallon

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 1556 of 2019

DATE DELIVERED: 25 August 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 3 - 6 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rugendyke

SOLICITOR FOR THE APPLICANT: Ramsland Laidler Solicitor

COUNSEL FOR THE FIRST RESPONDENT: Mr Levick

SOLICITOR FOR THE FIRST RESPONDENT: Boyd Olsen Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Mr Bithrey

SOLICITOR FOR THE SECOND RESPONDENT: Lucy Urach & Associates

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

Residence

1. The children, W born … 2011, X born … 2013 and Y born … 2015 (“the children”), live with the mother.

Parental responsibility

1. The mother have sole parental responsibility for the long term decisions involving the children.

2. While exercising parental responsibility for the children in accordance with Order 2 herein, the mother must:

   (a)       Notify the father of any decision she intends to make regarding the children and request input from the father within 7 days;

   (b)       Consider the father’s input when making her decision in relation to parental responsibility; and  

   (c)       Notify the father of the decision she has made.

3. Each of the parents shall have parental responsibility for the day to day decisions about the children when they are in the care of that parent.

4. The father is at liberty to attend all school and extra-curricular events and activities to which parents are invited to attend.

5. These orders are sufficient authority for the father to obtain oral and written information in relation to the children from their schools and medical and allied health professionals.

6. The parties will forthwith notify each other of any serious injury or medical condition of the children.

7. The parties will forthwith notify each other of any change in residence or contact details.

8. The father shall spend time with the children as follows:

   (a)       Commencing as soon as practicable, over a period of two months, for two hours on one day of each alternate weekend, with such time to take place under the supervision of either D Contact Centre or E Contact Centre with the father to nominate the service and provide the mother with written notice of such, with written notice of such details and locations for such time to take place;

   (b)       The mother and father must contact the service as nominated by the father and complete all intake proceedings and follow all directions as to attendance at locations and behaviour required by the staff to facilitate time between the children and the father;

   (c)       The father will pay all the fees associated with the service.

9. At the conclusion of Order 9 herein, for a period of two months, the father shall spend time with the children from 10.00 am until 1.00 pm each Saturday.

10. At the conclusion of Order 10 herein, for a period of two months, the father shall spend time with the children as follows:

    (a)       Each alternate Wednesday from the conclusion of school until 6.00 pm;

    (b)       Each alternate Saturday from 9.00 am to 2.00 pm.

11. At the conclusion of Order 11 herein, for a period of two months, the father shall spend time with the children as follows:

    (a)       Each alternate Wednesday from the conclusion of school until 6.00 pm;

    (b)       Each alternate Saturday from 9.00 am to 6.00 pm.

12. At the conclusion of Order 12 herein, for a period of two months, the father shall spend time with the children as follows:

    (a)       Each alternate Wednesday from the conclusion of school until 6.00 pm;

    (b)       Each alternate weekend from Saturday from 9.00 am to 10.00 am Sunday.

13. At the conclusion of Order 13 herein, for a period of three months, the father shall spend time with the children each alternate weekend, from 9.00 am Saturday to 6.00 pm Sunday.

14. At the conclusion of Order 14 herein, for a period of three months, the father shall spend time with the children each alternate weekend, from after school Friday to 6.00 pm Sunday.

15. At the conclusion of Order 15 herein and thereafter, the father shall spend time with the children each alternate weekend, from the conclusion of school Friday until the commencement of school Monday.

16. Contemporaneously with the commencement of operation of Order 14 herein:

    (a)       If Father’s Day does not fall on a spending time weekend pursuant to the applicable preceding order, the children shall spend time with the father from 5.00 pm on the day preceding Father’s Day until 5.00 pm on Father’s Day;

    (b)       When one of the children’s birthdays fall on a weekday, the children will spend time with the father from the conclusion of school until 6.00 pm on that day;

    (c)       When one of the children’s birthdays fall on a weekend day, the children will spend time with the father from 2.00 pm until 6.00 pm on that day;

    (d)       If Mother’s Day falls on a spending time weekend pursuant to the applicable preceding order, the time that the children spend with the father shall conclude at 5.00 pm on the day preceding Mother’s Day;

    (e)       When one of the children’s birthdays falls during a spending time weekend pursuant to the applicable preceding order, the children’s time with the father shall be suspended between 2.00 pm and 6.00 pm on that day, during which time the children shall return to the care of the mother.

Holiday time

1. The children shall spend time with the father from 9.00 am on 1 January 2022 until 5.00 pm on 8 January 2022 and from 5.00 pm Friday until 9.00 am Monday on the second last weekend of the Christmas school holidays.

2. Commencing from the first term school holiday in 2022, the children shall spend time with the father in addition to Order 16 above:

   (a)       For the first half of the term school holidays in each odd-numbered year, from the end of school on the last day of the school term until 5.00 pm on the middle Saturday;

   (b)       For the second half of the term school holidays in each even-numbered year from 5.00 pm on the middle Saturday until the commencement of school on the first student attendance day of the new school term;

   (c)       For the first half of the Christmas school holidays commencing December   2022 and each alternate year thereafter;

   (d)       For the second half of the Christmas school holidays in each intervening year commencing in January 2024 and each alternate year thereafter.

Changeovers

1. For the purposes of changeover, the parties facilitate changeover of the children at McDonalds, City F, unless time commences immediately after or prior to school in which case the father shall collect the children from and deliver the children to school.

Family Therapy at G Counselling Service

1. By Consent of all parties the father, mother and paternal grandparents will undergo family therapy at G Counselling Service for the purposes of:

   (a)       Addressing the issues in relation to the resumption of the children’s relationship with the father and the paternal grandparents; and

   (b)       Obtaining support and guidance for compliance with these orders;

   and to that end each party shall forthwith:

   (c)       Contact G Counselling Service on … and complete the necessary documentation to facilitate the assessment and counselling sessions;

   (d)       Attend on the assessment and counselling sessions as recommended by G Counselling Service;

   (e)       Pay for any individual sessions, noting that the parents will contribute equally to the costs of those sessions involving the children.

2. The Independent Children’s Lawyer shall forthwith provide the Family Report of Dr H dated 18 November 2019 and these Orders and Reasons for Judgment to G Counselling Service.

Restraints

1. All parties are restrained from making critical or derogatory remarks about the other party within the presence or hearing of the children and will ensure that no third party does so within the presence or hearing of the children.

Explanation of Orders

1. As soon as possible, the Independent Children’s Lawyer and Manager of Child Dispute Services will arrange a time mutually convenient for themselves and the mother, to meet with the children on Level 2 of the Family Court at Newcastle for the purpose of the orders being explained to the children and for any relevant questions any child may have to be answered.

Leave for Family Report to be read by maternal grandparents

1. The mother may, if she wishes to do so, provide the Family Report of Dr H dated 18 November 2019 for both maternal grandparents to read.

2. The application contained in the Response of the Second Respondent paternal grandparents filed 23 September 2019 is otherwise dismissed.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1556 of 2019

Mr Dallon

Applicant

And

Ms Macbride

Respondent

And

Mr B Dallon and Ms C Dallon
Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are applications by two parents and the paternal grandparents for parenting orders concerning three children, W aged not quite nine, X aged seven and Y aged five.

2. The parents met in 2002/03 and commenced a relationship shortly after. They began living together and were married in 2010.

3. The three children of the marriage were born over the following five years.

4. The parents separated on 26 September 2015, with the father leaving the family home. The children then aged four, two and three months remained living with the mother.

5. The parties were divorced in 2017.

6. The children spent regular short periods of time with the father and his parents for the first two years, daytime only, never overnight.

7. From October 2017, the children spent no time with the father nor the paternal grandparents, following an alleged disclosure to the mother and the maternal grandparents from the eldest child, W, of sexual abuse by the father.

8. The child was interviewed by JIRT on 17 October 2017.

9. The father was charged and a protective order for the child put in place.

10. In June 2018 the child retracted her statement relating to sexual abuse. The charge was withdrawn and the protective order revoked.

11. The three children have not seen nor communicated with the father or the paternal grandparents since the events of October 2017.

The Parties

The Applicant - Father

1. The applicant father is currently 37 years of age. He lives in the J Region of NSW and works in retail.

2. The household of the father consists of himself, his partner Ms K and the one year old daughter of their relationship, Z.

The Respondent - Mother

1. The respondent mother is currently 41 years of age. She lives in the J Region of NSW with the children and the maternal grandmother in the home of the maternal grandparents.

2. It is the intention of the mother to return to living in the former matrimonial home when current renovations being undertaken by the maternal grandfather on the property are completed. The maternal grandfather is staying in the property.

3. The mother is employed as a health professional on a casual basis.

4. She denies a current relationship.

The Second Respondent – Paternal Grandparents

1. The second respondent paternal grandparents live in the J Region of NSW.

2. The paternal grandfather is currently 62 years of age. He is retired.

3. The paternal grandmother is currently 57 years of age. She works in hospitality.

4. The paternal grandparents have two adult children; the applicant father and another son who is married with two children aged two and four years.

5. Their household consists of themselves only.

The Trial

1. The trial was listed for four days commencing 3 August 2020.

2. All parties were represented by solicitor and counsel.

3. The Independent Children’s Lawyer (“ICL”) had briefed counsel.

4. The trial concluded within the allocated time and judgment was reserved.

The Issues

1. The central issue is whether the children should spend time and communicate with the father.

   (i)If so, when and how;

   (ii)If not, should the children spend time and communicate with the paternal grandparents.

2. The mother does not ask the Court to make a finding that the child W was sexually assaulted by the father.

3. The mother does ask for a finding that the father represents an unacceptable risk of physical and psychological harm to the children.

The Applications

1. All parties agree that the children should remain living with the mother.

2. In submissions, the father conceded that the mother have sole parental responsibility provided a consultation process for long term decisions was ordered.

The Father

1. By his Initiating Application filed 22 May 2019 the father sought equal shared parental responsibility. He proposed time with the children would commence as limited supervised time graduating to unsupervised day and overnight time. Thereafter, time with the children each alternate weekend, half school holidays and special days.

2. Prior to submissions the father was granted leave to tender an Amended Minute of Order.[1]

   [1] Exhibit 19.

3. The revised position of the father substantially followed the proposal of the ICL.[2]  Parental responsibility was conceded to the mother. A more gradual restoration process for time with the children was endorsed although at a slightly faster pace than the ICL proposed.

   [2] Exhibit 18.

The Mother

1. By her Response filed 26 June 2019 the mother sought, and did not resile from, her application for sole parental responsibility and for the father’s application to be dismissed.

2. In her oral evidence the mother made clear that if the Court took the view that the father did not represent a risk to the children she would accept that outcome.

The Paternal Grandparents

1. By their Response filed 23 September 2019 the paternal grandparents support the father’s application. They seek time with the children to occur with them each Monday afternoon for three hours, one weekend per month, time in school holiday periods and each alternate Christmas day.

2. The position of the paternal grandparents was clarified as being that if orders were made for the father to spend time with the children, the paternal grandparents would see them by arrangement within the family. Only if there were no orders for time and communication between the father and children would they press for orders.

The ICL

1. On behalf of the ICL it was submitted at the commencement of trial that the ICL could not formally express a view until she had heard the oral evidence.

2. At the conclusion of the evidence, and prior to submissions, the ICL submitted a Minute[3] subsequently amended[4] in respect of the proposed family therapist.

   [3] Exhibit 17.

   [4] Exhibit 18.

3. The ICL concluded that the father did not pose an unacceptable risk of harm to the children of a sexual nature or at all.

4. She also concluded that the statements made by the eldest child in her first interview resulted from a series of events consistent with what the Family Consultant described as the Third Hypothesis.[5]

   [5] Family Report dated 18/11/2019, par 245.

5. The ICL proposed that the mother have sole parental responsibility for the children with a consultation process for herself and the father, a gradual defined restoration of time and communication, supported by family therapy.

History of Relevant Events

Since separation

1. Until the youngest child was 18 months old the father came to the family home to see him.

2. Thereafter all three children spent three hours with the father on two weekday afternoons and six hours each Sunday.

3. The father asked for more time including overnight time. The mother did not agree.

4. The parties engaged in a mediation which did not result in an agreement for more time, including overnight time.

October 2017 sexual abuse allegation

1. On Monday 16 October 2017 the children spent three hours as usual in the afternoon with the father, in the home of the paternal grandparents.

2. At 6.00 pm, the end of the time period, the father drove the children to the home of the mother. The two parents said nothing to each other as the children and their clothes and bags were unpacked. The evidence suggests that the two adults did not speak in order to prevent argument or sniping breaking out as it often had previously.

3. Inside the house the mother noticed that Y (the youngest child) had a band aid on his finger. The mother turned to W and asked:

   What did Y do to his finger?

4. This question was, on the written and oral evidence of the mother, the first of a very large number of questions on this topic directed to W.[6] I conclude that this part of the conversation with the mother had the effect on W of making her cry and shake, as described by the mother.

   [6] Affidavit of the mother filed 30/06/2020, pars 27-39.

5. Most significantly, eight months later in her second interview, W told the interviewer that she had made up a story about her father abusing her because of this questioning:

   JIRT:It’s a pretty big story to make up. Why did you say it?

   W:I said it to get out of talking about Y’s finger when I got home with Mum.

   I was worried I was going to get into big trouble.

6. On the night in question the mother attributed the child’s distress to her “telling fibs” which were in fact guesses by the child about what might have happened to Y’s finger. The mother also quickly came to believe that “something wasn’t right” and that W was concealing something from her.

7. The child told the mother three different events occurred in relation to Y which the mother dismissed as fibs. The mother knew, because she had taken the bandaid off Y’s finger that there was no sign of injury.

8. The mother said that at that stage she was not worried about Y’s finger but had become concerned “about why W was telling ‘white lies’.”

9. The mother failed to recognise that her own conduct was irrational. She was continuing to interrogate and reproach the child although she knew that Y was not injured:

   Well if you don’t know W you just tell me, you don’t need to tell me little fibs. Did something actually happen to his finger? Are you trying to hide something from Mummy?

   If something happened to your brother I hope you would tell me so that I can make sure your (sic) ok.

   W:I know Mummy. I just don’t know.

10. The mother then put the children into the shower with W “crying and upset”.

1. When W got into bed “crying softly” the questioning about Y started again:

   Mother:W there is something not right and you’re not telling me everything you know. Did something happen to Y’s hand you’re not telling me?

   W: No Mummy I don’t know anything but I hurt my foot.

2. The mother had earlier in the conversation directed the child “if you don’t know just say I don’t know.”

3. W did say “I don’t know”. She then moved onto other topics and said “Ms K smacked Y on the hand”. It is reasonable to conclude that W told her mother something about Y’s hand because that is what she believed her mother wanted to hear.

4. The mother describes herself as becoming upset and asking about what Y was doing (presumably to justify a smack). W could not describe anything. The mother “sensed W wasn’t being truthful.”

5. The mother then became “frustrated” to use her word but probably also angry.

6. She again reproached W:

   This is getting ridiculous. You’ve told so many fibs.

7. The mother told W that “Santa is watching and he likes children that tell the truth”.

8. W must have been close to breaking point or was at least very tired. She said she did not care if she got no presents.

9. The mother interpreted this as another sign of ‘something being wrong’. She told the child to “sit up and talk to me”.

10. W made a reasonable request “Can’t we just go to sleep and we can talk about it tomorrow?”.

11. Her mother’s response put sleep out of the question:

    “No way.

    You need to tell me step by step and what you did from the moment you were with daddy until you got home”.

12. W responded “ok Mummy” and took her mother through the activities of the afternoon, but the questions continued.

13. At one point the child alleged “daddy punched me in the back”. The mother challenged her “did he really do that?” and W said “no”.

14. The mother was dismissive presumably because she didn’t believe that the father would punch the child:

    Why are you telling me this W. What happened next?

15. W described herself lying on the bed and Daddy putting an icepack on her foot:

    Mother:And then what W? By now the child is again shaking and crying.

    W:Daddy put his hand on my knee.

    Mother:Did Daddy pat you on the shoulder or anywhere else?

    W:Yes. He touched me there.

    In her affidavit the mother describes W’s gesture as “W put her hand on the outside of her vagina as she said this.”

16. I note that the child was in pyjamas sitting up in bed as she spoke to her mother and performing this gesture. The child is not said by the mother to have used    the word vagina or any word at all.

17. When the mother responded “Did daddy touch you there?” the mother used her own hand to touch her own clothed genital area. She did not use a word either.

18. The child then volunteered “Then daddy took my undies off” there was discussion about that and then:

    Mother:What happened next?

    W:He put his finger in there and it hurt me.

    The mother’s response, “Oh, did he darling?” used a word of endearment and expressed sympathy, for the first time.

19. The mother did not test what the child said as she had with the allegations of smacking of Y by Ms K and the punching of W by the father. The mother did not say “Did that really happen?” or “Why are you telling me this?”

20. From that point the questions of the mother clearly indicated both that she accepted what the child said and was genuinely concerned for her.

21. After a few more questions directed to detail, the mother “gave W a cuddle” and told her “you should try and get some sleep and I will be back soon to see you”.

22. I conclude that the child very likely realised that she had said something that got a warm positive response from her mother. She was no longer being reproached as a fibber and withholder, she was back in her mother’s good books.

23. That it is not to say that the mother intended to lead W to a disclosure of sexual abuse. I accept her oral evidence that her sense that evening that “something wasn’t right” was a fear that one of the children had been disciplined.

24. I also accept that she now regrets having questioned and challenged W in the way she did.

25. Further, I accept that she was motivated to be protective of W.

26. However I conclude that on the balance of probabilities W was led emotionally and verbally to say the things she did to her mother about her father.

27. The mother concedes that not all the questions she asked are included.

28. The inability or unwillingness of the parties to communicate as parents contributed to the situation. Rather than being able hear information naturally from the father if she felt worried at all, the mother felt driven to extract information from the parties’ six year old daughter.

Police report

1. The mother conveyed the information by telephone to the maternal grandparents who came to the home and spoke to the child. This represented a second interview for the child which further kept her from sleeping.

2. The mother made a report to the police who came to the home that night. The mother subsequently made a statement.

3. On the following morning, 17 October 2017, W was interviewed by JIRT. The interview went for 40 minutes. The child provided what appeared to be a clear disclosure. Sexual abuse was substantiated.

4. The father travelled with NSW Police to the City M Police Station. The father was later released and an Apprehended Domestic Violence Order (“ADVO”) was issued to protect the child from the father. The ADVO proceeded on a ‘no admission’ basis.

5. The father’s history of the events of 16 October 2017 are as follows:

   -The father picked the eldest child up from school;

   -Attended the mother’s house to pick up the younger children;

   - Went to the home of his parents with the children;

   -Ms K arrived soon after and joined in playing with the children;

   -Before dinner, the two elder children did arts and crafts and played games;

   -After some time Ms K went upstairs to ice her knee which was painful as the result of an injury which had occurred some days prior. To do so effectively, Ms K took her jeans off and laid on a bed upstairs;

   -The father checked on Ms K and soon after the two elder children entered the bedroom. They enquired about why Ms K was icing her knee;

   -Ms K agreed to go downstairs and continue to play with the children;

   -After some time playing tennis W went to the father stating she had a sore foot and asking for an ice pack. The father believed W was mimicking Ms K icing her knee;

   -W sat on the bed and the father iced her foot. W asked him to lay down and hug her which he did. The father states this interaction lasted one to two minutes before they were called downstairs for dinner;

   -During dinner W is reported to have eaten and behaved well;

   -After dinner the paternal grandmother took W to the bathroom. The paternal grandmother reports W being chatty and showing no concerning behaviour.

6. The paternal grandparents and Ms K support the above version of events.

7. The father has consistently and categorically denied the allegation.

8. On 8 February 2018 the father was charged with sexual intercourse with a child under the age of 10 years. He pleaded not guilty. The father was released on bail.

9. The father undoubtedly suffered intense emotional distress after he was alerted to the allegation against him, charged with sexual assault of his daughter and cut off from contact with all three children.

10. In mid-2018 the mother was contacted by the DPP and told that officers wanted to speak to W, but to the mother first to explain the process. This was probably, but not certainly, a reference to W being prepared for giving evidence.

11. The mother went in and arranged to take W in a week later.

12. On that day the mother picked W up from school early. She told the child that they were going to see some people who “would help Mummy with what you told me about Daddy” or words to that effect.

13. The child appeared nervous and said “Mummy it didn’t happen I don’t want to go”.

14. I accept the evidence of the mother that at that time she had not spoken to W about the events of 16 October 2017 nor spoken of them in her presence or hearing.[7]

    [7] Affidavit of the mother filed 30/06/2020, par 52.

15. Equally there is nothing to suggest any contact whatsoever between W and the father or any member of the paternal family during the eight month period.

16. To her significant credit the mother did not question the child but simply said “OK leave it with Mummy” then rang the DPP, not in the presence or hearing of the child, and told an officer what W had said.

17. The mother was told to bring the child in nevertheless. She did. There was a discussion. The mother and child returned home.

18. The next day, 7 June 2018, the mother was contacted and asked to bring W into the FaCS office (now DCJ). This was for a re-interview of the child.

19. In this second interview W stated, amongst other things, “When I came here last time I said daddy touched my vagina when he really didn’t.”[8]

    [8] Exhibit 6 Q&A 37.

20. She further explained she made it up “to get out of talking about Y’s finger and then that night I felt bad”.[9]

    [9] Exhibit 6 Q&A 54.

21. At the conclusion of the interview the mother was told, at least indirectly, that the prosecution of the father would not proceed.

22. After the father had been charged three months prior in February 2018 the mother came to the view, through interpreting what police told her, that the paternal grandfather was blaming her for making up stories or encouraging W to make up stories.

23. Now the child herself was saying she had made up stories.

24. The mother had heard what the child said but was faced with the retraction by the child and her associated sadness.

25. The evidence suggests that the mother was at a loss to know how to understand what had happened or what to do.

26. Her own mother in her oral evidence was adamant that nothing would dissuade her from believing that the father had assaulted W as she had done since the child first told her about it.

27. On 27 June 2018 the charge against the father was withdrawn and the matter dismissed in the Local Court of NSW.

28. On 19 July 2018 the ADVO for the protection of the child was withdrawn.

29. On 22 March 2019 the father caused his solicitor to write to the mother’s solicitor requesting time to re-commence. The mother refused.

30. There was no communication between the two parents.

Application to Family Court of Australia

1. In May 2019 the father filed the application now before the Court.

Release of Family Report

1. In November 2019 the Family Report was released. As a result of information and analysis in that report by the Family Consultant the father became open to the idea that his daughter may have made the statement about him that she did as a result of questioning by the mother and misinterpretation.

2. On 5 December 2019, the father caused his solicitor to write to the mother’s solicitor requesting facilitated time in accordance with the recommendations of the Family Consultant. The mother refused.

3. The mother had chosen the course, not unreasonably in my view, to wait for the Court to review all of the evidence and make findings and orders.

4. I have come to the view that the evidence supports the explanation for the child’s allegation being pressure of anxious questioning leading to the telling of a story by the child to avoid trouble and to please her mother.

5. That she retracted her statement under no external pressure to any extent to do so, revealed her courage and her wish to feel less “bad”.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Father - Mr Dallon

   (a)Initiating Application filed 22/05/2019;

   (b)Notice of Risk filed 22/05/2019;

   (c)Affidavit of Mr Dallon filed 05/06/2020;

   (d)Affidavit of Ms K (the father’s partner) filed 05/06/2020;

   The First Respondent Mother - Ms Macbride

   (e)Response filed 26/06/2019;

   (f)Affidavit of Ms Macbride filed 30/06/2020;

   (g)Affidavit of Ms L Macbride (the maternal grandmother) filed 30/06/2020;

   The Second Respondents – Paternal Grandparents

   (h)Response filed 23/09/2019;

   (i)Affidavit of Ms C Dallon filed 05/06/2020;

   (j)Affidavit of Mr B Dallon filed 05/06/2020;

   Reports

   (k)Family Report dated 18/11/2019;

   (l)Magellan Report dated 13/08/2019.

Oral Evidence

The Father - Mr Dallon

1. The father, aged 37, presented as an open and emotional witness.

2. He disclosed in his affidavit[10] the physical and mental health conditions from which he suffers. He has Crohn’s disease, in remission since 2011. He has had a recurrence of a tumour in his left knee, having previously had a tumour there removed.

   [10] Affidavit of the father filed 5/06/2020, pars 64-71.

3. He has suffered long standing depression and anxiety, aggravated both by the events of October 2017 when he was arrested, charged and restrained from contact with his children by a State protective order and the ongoing absence of the children from his life.

4. The notes of his doctor from late 2019[11] reflect a high level of distress and escalating worry about this trial and the uncertainty until it was over.

   [11] Exhibits 9, 10.

5. The significant matter is that medical notes since early 2016 reveal that the father attended on his doctor and acted on advice. The father has consulted with and followed the advice of medical practitioners and a psychologist. He takes medicine as prescribed.

6. The mother expressed some concern about the father’s dependence on diazepam which he now no longer uses. Otherwise the mother did not raise the state of the father’s mental and physical health as a current limitation on his capacity to care for the children.

7. My impression is that the father genuinely changed his thinking about W’s allegation after he read the Family Report in November 2019.

8. I accept that a police officer had offered him three possible explanations:

   ·That he had assaulted the child;

   ·That the child was psychotic;

   ·That the child had been skilfully coached.

9. The father’s thinking for two years had been that he knew he had not assaulted his daughter, he did not believe she was psychotic so therefore W had been coached to repeat maliciously fabricated allegations. Who else could it be but the mother?

10. After reading the Family Report in 2019 he considered that there could be a much more complicated explanation involving protective intentions, questioning and mistaken conclusions:[12]

    245.In matters of sexual abuse in the context of Family Court, there are usually three hypotheses. The first hypothesis is that the sexual abuse did occur, which is the mother’s view. The second hypothesis is that the sexual abuse did not occur and was created deliberately and purposefully by a parent in order to justify no relationship or time between a child and a parent, which is the view of the father. The third hypothesis is that the sexual abuse did not occur and was created inadvertently by a series of events, including such things as information provided at disclosure, the age and development of the child, specific leading and/or direct questions asked of a child by professionals and parents and misinterpretation of normal sexual development. This evaluation will address each of these three potential outcomes as hypotheses based upon the information available to the Family Consultant.

    …

    248.The third hypothesis is one of multifaceted contexts occurring within a protective parental prism. As previously stated, it is thought that the subject children, but particularly W, were exposed to ongoing mental health concerns and overuse of Valium in the care of the father, resulting in the paternal grandparents providing a significant amount of support for the subject children whilst in the care of the father. It is thought that the mother was aware of the father’s mental health and had ongoing and reasonable concerns about his capacity to parent during this time. This protective and reasonable view of the mother caused her to question the children about the time spent with the father and the grandparents, but despite this protective view, to her credit, the mother never stopped the time between the father and the subject children. The view of the Family Consultant is that W bore the brunt of this questioning by the mother, due to the young age of her siblings and as a consequence was more aware of the mother’s view and worries about the father. This is the context into which the sexual abuse allegation was constructed.

    [12] Family Report dated 18/11/2019, pars 245, 248.

11. The father agreed that he had tried to grapple with the allegation made by W in 2017 and with her subsequent retraction eight months later.

12. He conceded that initially he had felt angry with the child for saying such a thing about him. He then thought about how difficult it would have been for her and did not hold onto those feelings.

13. W had said in her second JIRT interview that she was not sure about seeing her father again. When asked by me what he would say to her to allay her concerns the father said in a heartfelt way: “I’ll tell her I love her and I don’t blame her for anything.”

14. He no longer held the view that it was all the mother’s fault: “Not entirely, but we were together for 13 years, how could she believe I’d do that?”

15. The father expressed his willingness to be guided professionally in restoring relationships. He revealed a sound knowledge of the natures of each of the children as he knew them, so will likely not require assistance in learning who they are now. Professional help may be needed in providing explanations for the children about why he disappeared out of their lives and why he has reappeared.

Ms K - the father’s partner

1. Ms K, aged 38, is a health professional.

2. She expressed herself with clarity. She readily agreed that she holds the belief that the father did not touch W in a sexual way. She is open to other explanations for the statements of the child.

3. The unchallenged evidence of Ms K is that she and the father put considerable thought into when and how she would be introduced to the children. The meeting took place three months after she and the father felt established as a couple, in the early months of 2017. The meeting took place at the beach as part of the children’s Sunday morning activities with the father and paternal grandparents.

4. Relationships between Ms K and each of the children developed.

5. It is to her credit that Ms K agreed with the father that she and the mother should meet. Unfortunately to use the words of the mother, “the meeting did not go well.”

6. Two things stand out, first that the children met Ms K before the mother knew that the father had a new partner. As a result the children became the innocent bearers of what was interesting news for them but unsettling news for the mother. W, if not all three children, quickly realised that.

7. Second, that Ms K was encouraged by the paternal family to go and introduce herself to the mother.[13] She did so, at a contact visit, without prior notice. A meeting by arrangement may have been more harmonious. Of course the mother had known for some time of Ms K and probably wanted to meet her but was caught off guard and reacted negatively “Good of you to come after spending such a long time with my children”, “Good luck to you”.

   [13] Affidavit of Ms K filed 5/06/2020, par 22.

8. Thereafter Ms K stayed away from changeovers with one exception when she was sitting in the car. I accept that the mother did call out, in front of the children for the father not to bring Ms K to her home again.[14] That conduct is consistent with W’s relief when told by Ms K that she was just saying goodbye, not travelling back with them to the mother’s home, after the time with the father.

   [14] Affidavit of Ms K filed 5/06/2020, par 23.

9. I consider that Ms K has a great deal to offer the children in terms of warmth and engagement in enjoyable activities. Even more, she is the mother of Z the infant daughter of her relationship with the father. The children have not met the child and most probably do not know of her existence.

The Mother - Ms Macbride

1. The mother presented as tense and stressed throughout her cross-examination.

2. To her great credit she too had thought deeply about the evaluation conducted by the Family Consultant in her report. She reflected on her questioning of the child W, on the night of 16 October 2017 and had come to regret the extensive nature of it.

3. I accept that the mother was acting protectively of the child in her own view when she questioned and tested her, then arranged for the maternal grandparents to speak to her that same night.

4. I consider that the mother was shocked and appalled when told by police what W had said the next day and did not doubt abuse had occurred.

5. Certainly, when she saw the second interview the mother would have recognised the basis that the child gave for “telling a story” the first time, namely “that she wanted to get out of talking about Y’s finger”. Only two people were present for that period of questioning, the mother and W. It may not have made sense to police but it probably did immediately to the mother.

6. Since reading the Family Report the mother too has become open to the notion at least theoretically that she may have led W by her questions and her intention to “find out what was wrong” to make the statements she did.

7. The mother was asked a question arising from W’s statement in June 2018 in which the child said she felt “really worried and so sad about what I said”.

8. The mother agreed that she was bothered by not having picked up on those feelings in the child.

9. The mother is undoubtedly a loving parent who provides a high level of care and stability through routine.

10. My impression is that she is a sensitive parent but was not emotionally attuned to W after October 2017 because of her own certainty that abuse had occurred and everything that could be done had been done.

Ms L Macbride – the maternal grandfather

1. The maternal grandmother presented as highly protective and supportive of the mother and the children.

2. My impression was the maternal grandmother is devoted to the children but does not see any reason why the paternal family should play a role in their lives:

   I worry about them going back into the house where W was assaulted.

3. The maternal grandmother probably regards the father as having disqualified himself as a parent. She agreed with the proposition that she was 100 per cent convinced that W had been assaulted by him.

4. However, the evidence suggests that the maternal grandmother has had a dismissive attitude to the children’s feelings about the father and extended paternal family at least since separation of the parents in 2015.

5. When asked by me whether the children ever mentioned the father or his parents before the events of October 2017, the answer was:

   They didn’t say a lot about them.

   Q:Did you ask?

   A: No. They were happy to come home to Mummy. They missed her dearly.

6. I consider it likely that the maternal grandmother will struggle with the idea of the children restoring relationships with the paternal family.

7. It may assist the children if the maternal grandmother is able to read the Family Report and these reasons. An order is made permitting the mother to provide the report to both maternal grandparents if she wishes to do so.

The Paternal Grandmother - Ms C Dallon

1. The paternal grandmother presented as a calm, well-informed witness.

2. She has consulted a psychologist for assistance in coping with the loss of the three children from her life and that of the family. She would willingly do so again if necessary.

3. In October 2019 the paternal grandparents expressed their belief to the Family Consultant that the mother made up the allegation W made, due to the knowledge that the father’s partner was moving to live in the City F area.

4. Both she and the paternal grandfather were subsequently persuaded by the report of the Family Consultant, to think differently about W’s allegation.

5. I accept the submission made on behalf of the counsel for the paternal grandparents that they had an important role in the children’s lives from the respective birth of each child until October 2017.

6. I also accept that the mother misrepresented the remarks in texts in 2016 by the paternal grandmother as self-centred and intrusive. The tendered texts[15] show otherwise as the mother conceded in the witness box.

   [15] Exhibit 8.

7. The paternal grandmother loves the children. I consider that she is not simply bolstering her son’s case by applying independently for orders. Rather she is being pragmatic and doing all that she can to maintain the children’s place in the affection of the wider family, even if the father were to be excluded.

The Paternal Grandfather - Mr B Dallon

1. In what he described as “not his finest moment”, the paternal grandfather reacted to the mother in a chance meeting at a shopping centre.

2. It is an agreed fact that when the mother saw the paternal grandparents she picked Y up, took X’s hand and walked the other way, to avoid them. The paternal grandfather asserts he said “Good on you” in expression of his disappointment at her reaction and then “We’re coming to get you” (being a reference to the pending litigation).

3. The mother heard “We are going to get you” and felt upset.

4. The paternal grandfather heard the mother say “bring it on”. She denies saying it.

5. The mother made a report to police.

6. Whilst the paternal grandfather clearly feels he should have restrained himself that is the gold standard of behaviour. I accept the submission that both grandparents had been patient and restrained, that there had been no misconduct of any kind.

7. The paternal grandfather loves the children. I am satisfied that he would comply with Court orders and contain his feelings in future.

The Family Consultant – Dr H

1. The Family Consultant was unaware of the child’s retraction of allegation and revocation of the protective order when she interviewed the father. He told her some things which the mother later confirmed in her interview two days later.

2. There was no observation of the children with the father due to the allegations of risk.

3. The Family Consultant subsequently had the opportunity to view the second JIRT interview as requested by her. She also read trial affidavits on the application of all parties.

4. The Family Consultant maintained her view that W had been under a lot of pressure not only on the night when the child is said by the mother to have made a disclosure of sexual assault to her, but over a long period.

5. Certainly she agreed that the email the mother sent to the father about the timing of “introducing your new girlfriend” to the children[16] could be described as “a forceful expression of disappointment”. In my view the tone was stern disapproval.

   [16] Exhibit 7.

6. The evidence supports the view of the Family Consultant that W was acutely aware of her mother’s fears and anxieties and susceptible to being unintentionally led under pressure to an outcome which was not based on actual events.

7. The setting out by the Family Consultant of the forensic approach to an allegation being made by a child in the context of hostile separation, inadequate parental communication and conflict has been of great assistance to all four parties and other family members. It has opened their minds to the grey zone between black and white belief;“he did it” or “she made it up”.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. Each of the parents, by law, presently has parental responsibility for the three subject children. There are no prior orders.

2. However the mother has made all the decisions of parenthood to the exclusion of the father for the five years since separation.

3. The father acceded to her decision making for the first two years, in the hope that a more consultative relationship would develop and that the mother would agree to his spending more time with the children.

4. After the events of October 2017 the relationship between the parents went from being fractious to non-existent.

5. On the evidence before me it would be unrealistic to expect that the two parents could consult each other and compromise where necessary over long term issues.

6. They both recognise that fact, through the now common position that the mother have sole parental responsibility. The father has no criticism of how the long term issues such as health and education have been managed.

7. That is not to say that the father does not have the capacity to make day to day decisions about what the children eat and wear and the activities they participate in during their time with him. Orders are made accordingly.

Primary Considerations

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

1. There is no issue that the father had a warm loving relationship with all the children. They enjoyed their time with him, with the paternal grandparents and with the father’s partner.

2. The father has remained committed to restoring those relationships despite three years having passed without contact of any kind.

3. He is in a stable relationship with Ms K and they have a one year old child.

4. The father has had a relaxed and affectionate manner of engaging with the children. He has a lot to offer them.

5. The central objection of the mother relates to the allegation of sexual assault made by W.

6. The mother is a protective, loving parent. However she has not been emotionally attuned to the impact on W of her own feelings and reactions. This may also be true in relation to the two younger children but there was comparatively little evidence about them.

7. Although it is apparent from the second interview that W had felt upset and sad during the eight month period between interviews, the mother did not see any problem for her because she was doing well at school and at home. After the retraction the mother saw no reason to have counselling for the child or to have any conversation with her about the father.

8. Given that the maternal grandmother never speaks to the children about the father or his extended family and has not done so since the parents separated, that has potentially left W emotionally isolated.

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

1. There is no evidence of the father being physically or emotionally abusive of any of the children to any extent with the one significant exception being the allegation made in October 2017 by W.

2. To watch the recording of the first JIRT interview is to watch a calm articulate intelligent child give a detailed account of having her genitals intruded on .if not penetrated, by her father’s finger. She apparently told her mother and the police that it was very painful, she called out but no one heard her. The bedroom door was shut she said, she had shut it herself.

3. The child had gone upstairs with her father at her request with an icepack for her “sore” foot. It is uncontentious that there was no visible injury to her foot. The child’s statement to the police that she was screaming and screaming with pain and had to go upstairs “to give the others a break from my screaming” could not be truthful.

4. She may have been copying the experience of the father’s partner who the child had watched earlier in the day lie on a bed in the spare room upstairs with her jeans off and an icepack on her knee.

5. The child probably wanted the undivided attention of her father just as she had seen Ms K receive on that day.

6. The details of events prior to this incident upstairs in the second bedroom, are corroborated by the paternal family; making craft necklaces and headbands, playing tennis, happily coming downstairs after the foot incident to have dinner.

7. The child retracted her statements nine months later. To watch the second recording is to see the child, quiet, composed and articulate in saying of her father  that “he really didn’t” touch her as she had previously said. She defined truth as “tell what really happened”. She went on to say about lies that if someone told a lie “they would feel really bad”.

8. Soon after the child described that she had felt “really, really bad after the first interview”.

9. The puzzling aspect of the statements of the child relate to her description of digital penetration “wiggling his finger backwards and forwards in my bottom”.

10. The possibility exists that the child has seen, or been told of ,something of a sexual nature or been exposed to sexual conduct by another child or an adult. The parties and their witnesses did not know of any such incident. It is impossible to know.

Additional Considerations

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

1. The children were aged eight, six and four when interviewed for the Family Report in October 2019. They had not seen the father for two years. The observations and views are as follows:

The child W (aged eight)

1. Both parents reported that W was an above average student. That was consistent with the assessment of her by the Family Consultant.[17]  It is consistent with my own impression, arising from viewing the two JIRT interviews, that W was an articulate, bright and able child.

   [17] Family Report dated 18/11/2019, par 179.

2. Emotionally she presented to the family Consultant as shy and slightly withdrawn, uncomfortable with the interview process and, despite the best efforts by the Family Consultant to build rapport with her, unable to relax and play.

3. She is described as being “extremely reluctant to answer questions, general and specific” about the father, the paternal grandparents and past interviews. She responded with phrases such as “I really don’t know”, “I don’t want to say anything” or “I don’t want to talk about it”.

4. Those responses are likely to have been learned from instructions given by the JIRT interviewer about how to answer his questions. They are neutral responses, as the Family Consultant noted, no negative or positive memories of the father and paternal grandparents although the Family Consultant was confident that the child did have memories.

5. W was quick and definite to say that she wanted to live with the mother and to go places with the mother and wanted the judge to know that.

6. W was “unsure” if she wanted to see her father if the mother said it was ok to see him.[18]

   [18] Family Report dated 18/11/2019, par 187.

7. My impression of W through this information is that she is a child who has been through an ordeal. She has tried to do what was expected in the past and has suffered privately through the consequences.

8. I do not give weight to her uncertainty about seeing her father. This is a matter where, in the best interests of W, the decision should be taken out of her hands.

9. There is no dispute that prior to October 2017, W very much loved her father as she did, and does, love her mother.

The child X (aged six)

1. X was willing to be interviewed. She reported enjoying learning at school [Kindergarten].

2. She was happy and content to speak about her mother and maternal family. She responded “I don’t know” to questions about her father and his family.

3. The assessment of the Family Consultant was that X was aware that she did not see her father but could not explain why.

4. As her sister did, X said she was “unsure” about seeing her father even if the mother said it was ok.

5. X was four when she ceased spending time with her father. She probably knew after almost a year at school that other children have fathers whom they live with or spend time with but she did not. Her actual memories may have been fading.

6. The evidence suggests that X had enjoyed time with her father and paternal family.

7. The paternal grandmother gives an affectionate account of the last visit in October 2017 with X greatly enjoying her dinner and telling her grandmother “I love you Ma” through the car window when the children were leaving to go home.[19]

   [19] Affidavit of the paternal grandmother filed 5/06/2020, par 57.

The child Y (aged four)

1. Y was two when he ceased spending time with his father.

2. He was nervous and anxious in the presence of the Family Consultant who returned him to the care of the mother.

3. The Family Consultant thought it unlikely that Y would have memories of his father.

All children

1. With respect to all the children it is clear that there has been no denigration of the father and paternal family, neither any positive statements about them. The Family Consultant assessed it as “more like a nullification of their relationship.”[20]

Extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

[20] Family Report dated 18/11/2019, par 200.

1. Post separation the mother had all the responsibility for the care and management of three very young children.

2. The father went along with the mother’s proposals for his time and communication with the children although he became impatient with her resistance to overnight and holiday time.

3. The father explained that he wished to avoid conflict with the mother and hoped she would relax the parameters in time. For that reason he did not approach a Court for parenting orders.

4. It must also be the case that the father was content with the way the children were being cared for and the decisions made by the mother.

5. That is consistent with his decision not to ask the Court to move the children to live with him, which is not to suggest that that would have happened.

6. The decision of the father at the end of the trial to agree to the mother having sole parental responsibility for long term decisions also reflects his confidence in the mother as a good decision maker for the children to date.

7. Of course the father wishes to be consulted and kept informed and an order is made to that effect.

8. There will be a benefit to the children in having information exchanged between the parents in this way. The benefit will be that the children do not carry the responsibility to ask questions on behalf of a parent nor to deliver information deliberately or inadvertently about a parent or household.

9. The fact that it is awkward and difficult to talk to each other does not exclude the responsibility of these parents to do so, even if it is only electronic at first.

10. The children may then feel free to talk about whatever they choose in either household without pressure to speak or to keep silent on any topic.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The children have experienced the loss of a relationship with the father and his partner, the paternal grandparents and other members of the father’s family.

2. They are unaware of the father’s one year old child whom they will understand to be a sister for them.

3. The restoration of those relationships with reassurance that the breakdown is not the fault of any child will take time.

4. The mother felt lonely when the children spent time with the father previously and was “at a loss” without them.

5. This restoration process may be difficult for the mother especially as her own mother, on whom she relies for support and assistance, holds the views she does about W certainly having been assaulted.

6. The children may feel hurt when they find out about Z and wonder why no one told them.

7. Above all else the children will need time to adjust to the father and his family coming back into their lives and to gain confidence that he will not disappear again.

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

1. I have the impression that when the parties separated the mother was shocked at the father’s changed feelings for her and that she had not foreseen to any extent the breakdown of the marriage.

2. She was alone with three children aged four, two and three months. She devoted herself to their care. She allocated time for the children to see the father and would not be moved to expand that time. I am confident that she was focused on routines and certainty for the children and stability for herself as a single parent.

3. She turned to her parents for support and they willingly assisted her.

4. Offers of help from the paternal grandparents were unwelcome.

5. No doubt at an emotional cost to herself the mother has not formed a new relationship. The children have had priority.

6. The mother acted protectively when she believed that the father had acted in a criminal, irresponsible way with W. Now she is uncertain, open to other explanations which include her own conduct.

7. I am confident that the mother will do what is asked of her by these orders but it will not be easy.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There was an ADVO in place for the protection of W between October 2017 and June 2018. That order was revoked. The father has been cleared for working with children.

2. Otherwise there has been no allegations of family violence or need for police intervention during the marriage or since separation.

Conclusion

1. Orders are made largely in accordance with the proposal of the ICL but not entirely. The progress is faster in the final phase moving from two to three night weekends. By then the children should be thoroughly familiar with the pattern and the extra night delivers the ability to changeover at school on both ends of the weekend. The ICL acknowledged in submissions that the progression could move more quickly. I consider there is the identified benefit.

2. Y starts school in 2021. The children do not need to be considered separately but can spend time as a group. I consider that once the children are familiar with the father again, his ability and that of his family to engage warmly with the children, will allow steady progress.

3. I have concluded that the process of restoration of time will be more likely to progress smoothly with the professional family therapy in which all parties have agreed to participate.

4. Ultimately the children will spend alternate weekends from after school Friday to before school Monday and for short holiday periods with the father.

5. Reaching that position will take more than a year, about 16 months. Block holidays will then commence in January 2022.

6. The balance in the orders is between the need for cautious expansion of time and the benefit for the children of reaching stability of time arrangements as soon as practicable.

7. The re-introduction of the children, in the first two months, is for the father and children only. There will be four short fortnightly visits, during that period, supervised by a Contact Service. The supervision is for the reassurance of the children and not at all for their protection from the father.

8. As contemplated by their application, the paternal grandparents will be able to see the children by arrangement with the father when the children are with him. For that reason the application of the paternal grandparents is dismissed.

9. Orders are made accordingly.

I certify that the preceding two hundred and seventy (270) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 25 August 2020.

Associate: 

Date:  25 August 2020