G & C - [2006] FamCA 994

[2006] FamCA 994

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE

NO. DGF 3877 of 2000

IN THE MATTER OF:

MS G

(Applicant)

and

MR C

(Respondent)

and

INDEPENDENT CHILDREN’S LAWYER

JUDGMENT DELIVERED BY

THE HONOURABLE JUSTICE BENNETT

Date of Hearing: 2 & 3 October 2006
Date of Judgment: 6 October 2006

Appearances:

The Applicant Mother appearing on her own behalf.

The Respondent Father appearing on his own behalf via video link.

Ms Gordon of Counsel, instructed by Roberts Beckwith Partners DX 93103 Mornington appearing on behalf of the Independent Children’s Lawyer.

MS G
&
MR C
&
INDEPENDENT CHILDREN’S LAWYER

CORAM: Bennett J

DATE OF HEARING: 2 & 3 October 2006
DATE OF JUDGMENT: 6 October 2006

Father’s application for 7 year old son to spend time with him in prison or, alternatively regular communication by telephone – father gaoled for sex offences to son’s step sisters – practical difficulties associated with orders sought – consideration of how operation of primary considerations operate – benefit of child knowing of biological father – not in child’s best interests to destabilise new family life or relationship with psychological father – held that no direct communication or spending time with father is in best interests of child.

B and B: Family Law Reform Act (1997) FLC 92-755.
R & R: Children's wishes (2000) FLC 93-000
H & W (1995) FLC 92-598

REASONS FOR JUDGMENT

Introduction

These proceedings concern the child B born … September 1999 and come before me as the final hearing of mother’s amended application filed 14 November 2003 and the father’s amended response filed 13 January 2006. Since those proceedings were filed the Family Law Act 1975 (“the Act”) has been significantly amended by the Family Law (Shared Parental Responsibility) Act 2006 the provisions of which came into operation on 1 July 2006. Certain procedural elements of the amending legislation do not apply to this case as it was commenced before 1 July 2006. The amending legislation largely provides the law relevant to this dispute between the mother and the father. The new law is complex so I will set out the relevant provisions in this judgment.
Neither party has recast the orders they sought to adopt the new terminology. In any event, each parent seeks a result which differs in some way from their application and response.
The applicant mother adopts the position recommended by the independent children’s lawyer and seeks orders:-
[1]. That the child [B] born […] September 1999, live with the Mother.
[2]. (a). That the Father communicate with [B] by forwarding to him cards, letters and/or presents.
(b). That all such communications in (a) hereof be forwarded by the Father to [B] at an address provided by the Mother.
[3]. That there be no face to face communication between the Father and [B] or direct time spent by the Father with [B].
[4]. That following the Father’s release from incarceration and prior to there being orders as to any direct communication or time spent between the Father and [B], there be:
(a) an assessment of the Father’s rehabilitation; and
(b) the Father’s ability to have a safe and secure relationship with [B].
At the conclusion of the trial the mother adopted the recommendations of the family consultant which included that the supervising family consultant oversee the communications by mail and presents and speak to B at least once per year to ascertain whether B seeks more extensive communication with the father.
The respondent father seeks orders:
[1]. That the mother and the father share joint parental responsibility, in consultation with each other, in relation to major long term decisions in relation to the child.
[2]. That the child spend time with the father on one occasion per month, or once per fortnight if the child is residing in the Melbourne metropolitan area and the father make a contribution of up to $50 per month to the costs of travel necessary to effect this order and, otherwise, the mother be solely responsible for all costs associated with the transport necessary for [B] to spend time with the father..
[3]. That the child communicate with the father by telephone once or twice a week.
[4]. That the father be at liberty to communicate with the child by sending letters, cards and gifts to the child.
[5]. That the mother send to the father recent photographs of the child every six months.
On 30 August 2002 and in the context of proceedings pre-dating any criminal conviction of the father, the court made an order requesting the Victoria Legal Aid appoint a child representative. In due course, Charles Beckwith was appointed child representative. He is now an independent children’s lawyer within the meaning of Division 10 of Part VII of the Act. As such, his role is to form an independent view, based on available evidence, of what is in the best interests of the child and then act in the proceedings in what he believes to be the best interests of the child[1]. He is not a legal representative retained by the child and he is not bound by any instructions from the child[2]. Rather, the role of the independent children’s lawyer is to deal impartially with the parties, ensure that the expressed views of the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children’s lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so[4].
[1] Section 68LA(2)
[2] Section 68LA(4)
[3] Section 68LA(5)(d)
[4] Section 68LA(5)(e)
On 5 September 2006 I made certain orders in chambers including requiring the independent children’s lawyer to ensure that the father had access, in gaol, to the new legislative provisions applicable to his case. I am advised that on 13 September 2006 the independent children’s lawyer spoke to an officer of the Prison and confirmed that the new legislation is in the prison library and, on 14 September 2006, the independent children’s lawyer wrote to the father asking for the father to notify him if he had any difficulty accessing the materials. At the trial, the father confirmed that he had access to the materials but said that he has literacy problems. I was told that counsel for the independent children’s lawyer explained the legislative provisions to him during an adjournment.
The recommendations of the independent children’s lawyer in relation to the outcome which will best meet the interests of B is the same as the relief sought by the mother. In fact, the mother adopted the proposal of the independent children’s lawyer.
On 2 and 3 October 2006 I heard evidence and submissions. On

3 October 2006
I pronounced orders and said that I would deliver my reasons subsequently. These are those reasons.

The evidence

At trial the applicant mother relied upon the following evidence:
·Her affidavit sworn 14 November 2003.
·Her affidavit sworn 12 July 2005 as well as her oral evidence.
·Her affidavit sworn 24 April 2006.
At trial the respondent father relied upon the following evidence:
·His affidavit sworn 18 July 2004 and her oral evidence.
Both parties were cross examined.
This is not a case which turns on findings of credit. It is a case very much about what benefit will be bestowed on the child B by him having a relationship by spending time and communicating with the father. It turns on the perceptions, proposals and capacities of each of the parents.
In any event, I found the mother to be a forthright and honest witness. She was organised and composed.
The father was also organised and composed. I leave to one side for the time being that the father says that he did not commit the crimes for which he was convicted, did not appeal, and is currently in gaol.

I proceed on the basis that the father committed the crimes for which he has been convicted but I note that he continues to maintain that he is innocent of the crimes. The father’s assertions that he has been wrongly convicted of sex offences is relevant to the nature of the relationship which B can enjoy with the father consistently with B’s best interests as is the fact that the father blames the mother and his daughters, who were the direct victims of his crime, for his now being in gaol.

Findings of fact

The father did not attend court in person. It was his preference to appear by video link between the court and the prison. The mother attended court in person.
Neither parent was legally represented.
I found the opportunity to observe the parties give evidence and be cross examined to be of considerable benefit and a useful tool in deciding the truth of matters in issue in these proceedings. Some salient facts were mentioned by the parents in submissions or whilst they asked questions in cross examination. At the conclusion of the hearing I invited the parents to take an oath as to the truth of all of his or her statements. Each were re-sworn and confirmed that all that he or she had said outside the witness box was true and correct.
In assessing the evidence, I applied balance of probabilities as the standard of proof. In what I have already said and in what follows, statements of fact constitute findings of fact.

Chronology of relevant events

The father Mr C was born in November 1961 and is now 46 years of age. He is in Prison and is due for release some time in 2009.
The mother was born in November 1979 and is now 26 years of age.
The parties met in 1998 when the mother was 18 years old and the father was 37. At that stage the father was the primary care giver for his daughters from a previous relationship C who I estimate would have been about 9 years old and D who would have been about 13 years old[5]. When the parties commenced living together they resided at L. Subsequently they became engaged to be married, but never did marry.
[5] A DHS report annexed to the mother’s affidavit sworn on 14 November 2003 records D’s date of birth as … November 1985
B was born in September 1999. He was at that stage the only child of the mother. He was a step brother for the father’s girls, C and D.
The parties resided together from August 1998 until approximately December 1999 and there followed for the next few years reconciliations and separations. The parties disagree on who had primary care of B at that time. I note that on 4 October 2000 orders were made in the Victorian Magistrates Court providing for each to care for B on alternate fortnights. On 30 August 2002 similar orders were made, by consent in this Court sitting at Dandenong.
In September 2002 the mother left B in the primary care of the father. Her affidavit material refers to that event as being precipitated by her having mental breakdown. The mother complains of not being able to see B regularly when he was in the care of the father and, on 2 December 2002, only being permitted to see B on condition that she undertook some sexual activity with the father.
When the mother visited the former family home on 2 December 2002 to see B, her step daughters disclosed to her that the father had had sexual intercourse with both of them. Each girl provided her with details which subsequently appeared in a police statement annexed to the mother’s affidavit sworn on 14 November 2003. D would have been about 17 years old and C would have been about 13 years old when they were assaulted.
The mother immediately reported her step daughters’ disclosures to the Department of Human Services (DHS) on 12 December 2002.
On 25 February 2003 C and B were placed on an Interim Accommodation order and housed in an undisclosed community placement. D was 17 years old and not a child in respect of whom a protection application could be made.
There is a report in support of the protection application by DHS which was delivered on 13 March 2003 in anticipation of a hearing in the Children’s Court, Family Division on 17 March 2003. In that report the girls’ disclosures were as follows:-
On the 19^th December 2002 [D] and [C] were interviewed by Protective Services and [the] Sexual Offences and Child Abuse Unit at the family home in [H].
On this occasion [D] informed Protective Services and Police she had made the alleged statements, but that they were a means of setting up her step mother [Ms G] and were not true.
[D] stated she had thought about leaving home. [D] stated she had not left home as yet because she didn’t want to leave without her sister [C]. When asked why, she stated ‘that something might happen to her’ and when asked what might happen she stated that ‘Dad might die and they ([C] & [B]) would have nowhere to go’.
[C] also informed Protective Services and Police the allegations that ‘dad raped us’ were made up, and told to
Ms [G] (step-mother) to see how much trouble [the step-mother] would cause, ‘how far she would go to destroy our family’. [C] indicated [the father] had been aware of the plan to give [the step-mother] false information.
At this time, neither [C] nor [D] made disclosures regarding sexual abuse. However on ending the interview with Protective Services and Police, [C] appeared very concerned about possible consequences to sex offenders in jail and whether they would by physically harmed or killed.
A further notification was received on the 21^st February 2003. Information was provided to Protective Services indicating [D] had disclosed having been sexually abused by her father, and that similar abuse had been inflicted on [C].
On the 24^th February 2003, Protective Services and the Sexual Offences and Child Abuse Unit interviewed [D] regarding the new allegations. [D] disclosed she had been sexually assaulted by her father [Mr C] on at least two occasions, on returning from Queensland in October 2002.
[D] disclosed she was sexually assaulted by her father for the first time on the 19^th October 2002. [D] stated she had fallen asleep while putting [B] to sleep and woke as her father was rolling her over. [D] stated that father had started touching her then had ‘sex’ with her on this occasion. [D] stated she had been penetrated by her father’s penis.
[D] further disclosed that on the 4^th November 2002, she had again been sexually assaulted by her father. [D] stated her father had entered her room while she was sleeping, climbed into her bed and touched her ‘private parts’. That [the father] had put his fingers inside her vagina and kissed her.
[D] informed she had been forced to lie to Protective Services and Police in December 2002 by her father. [D] stated [the father] had been aware Protective Services would be attending the home, as [Ms G] had told him she planned to contact Protective Services regarding the children’s statements.
[D] stated that her father had threatened to harm himself if she or [C] spoke to Protective Services about the abuse. [D] stated her father had indicated he would be physically harmed if sent to jail for sexual abuse.
[D] also informed that after Protective Services and Police left the home, her father had physically threatened her making her fearful for her safety and that of her siblings if she spoke to anyone. [D] stated she believed her father would follow through with threats of harm as he had physically assaulted her in the past, by throwing her across a room after grabbing her by the throat. [D] stated she had difficulty breathing and moving for days after the incident but had not told anyone what had occurred.
During the interview on the 24^th February 2002, [D] informed Protective Services and Police she believed [C] had also been sexually abused by their father. [D] stated that [C] had disclosed to her of incidents occurring while [D] had been in Queensland.
[C] was interviewed by Protective Services and Police on the 24^th February 2003. [C] disclosed having been sexually assaulted by her father [Mr C] on three occasions last year.
[C] disclosed the first incident occurred in her father’s bedroom, where her father kissed her on the back of the neck with an open mouth. [C] stated the incident had been interrupted by [C’s] friend who had been staying at the home that night.
Approximately two weeks later, on returning from a trip away, [C] disclosed she was again sexually assaulted by her father. [C] stated she had been sleeping on the lounge room couch and awoke when her father turned her over on the couch. [C] stated her father had removed her clothing and kissed her on the face and body, then had penetrated her vagina with what she believed to be his penis. [C] stated she felt pain at the penetration and had felt her father moving over her body.
A further two weeks later, [C] has disclosed a further incident of sexual assault perpetrated by her father. [C] stated she had fallen asleep on her father’s bed while putting [B] to sleep. [C] stated she had woken to her father touching her body and pulling her pyjama pants down. [C] stated her father has watched a pornographic video as her (sic) touched her. [C] stated her father had touched her vagina with his fingers.
[C] stated [B] had been in the bed beside her while the assault took place.
[C] stated she was fearful there would be further incidents of sexual abuse by her father, even though he had promised to stop if she and [D] did not tell Protective Services and Police about the incidents of abuse. [C] stated she was also fearful of being physically assaulted by her father. [C] stated she had been assaulted by her father while living in [L], when he punched her in the stomach for not cleaning a cupboard properly.
Prior to the second notification being made in February this year, Protective Services also received phone calls from concerned community members whom [D] had approached and disclosed the sexual abuse to.
Subsequent allegations of the girls are recorded as follows:-
Since the issuing of the Protection Application, [D] and [C] have further disclosed that [B] has been regularly verbally degraded by [the father] and that their paternal grandmother […] had physically assaulted them.
[D] and [C] have stated [the paternal grandmother] has slapped them as punishment.
[D] has informed that she is also glad [B’s] hair is so short now, because it means their grandmother cannot grab him by the hair and pull him around.
The position of the parents, as at March 2003, was described in the protection application report as follows:-
[The father] is opposed to the Protection Application and denies the allegations that have been made. Due [the father’s] work commitments Protective Services have been unable to interview him in relation to the allegations.
On learning of the application made to the Children’s Court, [the father] stated to protective Services, “Keep the girls, just give me my boy back”.
[C] has indicated she is in agreement with the application and does not wish to return to the care of her father.
[The mother] is also in agreement with the application. [The mother] has stated she is not in a position to care for [B] herself at this time and believes [B] is safest out of his father’s care.
The mother relies on the report of DHS as being an accurate record of events. Neither the independent children’s lawyer adduced evidence to contradict the facts and matters set out in the report.
The mother also alleges[6] that C had been infected with Chlamydia by the father in the course of his sexual assaults on her.
[6] Paragraph 20 of her affidavit sworn on 14 November 2003
Department of Human Services was successful on the protection application and the children B and C remained in care.
In May 2003 the mother formed a relationship with Mr S who is her current partner.
On 26 June 2003 B was handed back to the mother by the Department of Human Services pursuant to a supervision order which was to continue for about 6 months. B has remained in the care of the mother since that time.

In 23 October 2003 the father saw B for the last time on a supervised contact visit under the auspices of DHS.
On 14 November 2003 ex parte orders were made on the mother’s application which suspended previous parenting orders and provided for the mother to have continuing contact with B immediately upon expiration of the supervision order in favour of DHS. It was also ordered that the father was to have no contact.
On 15 November 2003 the father was charged with the sexual offences in relation to his daughters C and D.
On 14 December 2003 orders were made by consent in this Court, at Dandenong, which provided for the father to have supervised contact to B not less than twice per month and such supervision be by a person acceptable to the child representative.
On 19 February 2004 further orders were made in this court, at Dandenong, providing for the father to have contact as agreed and supervised by a person nominated by the child representative. However, the father has not seen B since 23 October 2003. The parties are in dispute as to what if anything precluded the father from exercising the contact to which he was entitled.
Between June 2004 and November 2004 the mother, Mr S and B travelled around Australia on holidays and then resettled in N in Melbourne.
In 2004 a child was born to the mother and Mr S. His name is E and he is now 2 years old.
On 16 December 2004 the father was convicted of:-
● four counts of incident acts with a child under the age of 16 years and
● four counts of incest –
for which he received an aggregate sentence of seven years with a
non parole period of four years. This followed on his plea of not guilty and a trial in which D, C and the mother were called as witnesses.
In November 2005 the mother relocated her household from Melbourne to a country destination in New South Wales. The mother has disclosed the address to the Court but not to the father[7]. The father asserts that the mother moved interstate in order to flee from him and to better thwart his relationship with B. The father maintained that view notwithstanding that:-
●The father had not seen B for 2 years prior to the mother’s relocation out of Melbourne; and
●As a prisoner with time to serve he has no control over where he will be placed in the Victorian prison system between now and the date of his release.
[7] See orders made on 2 October 2006
The mother’s evidence was that she and Mr S decided to move out of the city and into a country environment to take on a bigger property and lead what she referred to as a better life for the children, B and E. I accept the mother’s evidence. I accept that the mother’s relocation was a sound decision.
As part of trial preparation, the court appointed Ms A (“the family consultant”) to investigate and report upon matters including the applications for the father to spend time and communicate with B. The expertise of the family consultant was not contested by either of the parties.
The family consultant conducted interviews by telephone with the parents on 1 February 2006 and delivered her first report dated

9 February 2006
. The family consultant then interviewed the mother and B, in person, on 9 August 2006. Her addendum report was released in early September 2006.
In the family consultant’s first report dated 9 February 2006 she was unable to recommend contact of any type between B and the father as the emotional and financial costs associated with contact outweighed any benefit as perceived by her. In the first report, the family consultant made the following observations:-
[15]. It is unfortunate that [the mother] has chosen to live interstate. It means that the opportunity for [B] to have contact with his older sisters is reduced. Contact has not occurred since his move interstate. The distance between [B] and his sisters makes contact on a regular basis impossible. It is a concern that [the mother] has chosen to move such a long distance away. It indicates that she lacks insight into [B’s] needs for the fostering of his relationships with significant other members of his family, particularly his sisters.
[16]. [B] has encountered significant disruptions in his care arrangements having moved from the care of his father into a foster placement before being placed in the care of his mother.
[17]. The critical issue in relation to contact is whether contact between [B] and his father is in the child’s best interests regardless of the problems posed by distance and the difficulties of finding a contact supervisor.
[18]. [The father] is currently incarcerated for having sexually abused his daughters who no longer have contact with him. The fact that he abused [B’s] sisters would weigh the costs / benefits argument more heavily on the side of costs. It would be confusing for [B] to understand why he would be seeing his father if his sisters have chosen not have contact with him.
[19]. [The mother] is unlikely to be able to foster a positive relationship between [B] and his father because she considers it is of no benefit to him. Her concerns would not allow her to positively represent [the father] to [B] and it would mean [B] would be raised in an environment that is negative to his relationship with his father. A relationship with his father would also impact on his capacity to maintain a strong relationship with his mother with whom he has re-bonded. It would be detrimental to him to disrupt his attachment to his mother. It is also likely that if contact occurs between [B] and [the father] it may have negative consequences on his sisters and create confusion for [B].
[20]. [The father] does not accept responsibility for his actions and tends to externalise problems and blame it on others. He has not received any counselling or rehabilitation for his past behaviours. His motives for wanting contact may need to be explored more fully. A full psychological evaluation of [the father] may assist the court to identify any risks for [B] of contact occurring. According to studies on batterers, the batterer’s level of physical violence both during the relationship and after separation is an important indicator of risk to the children (Bancroft & Silverman – The Batterer as Parent). In any case even if supervised contact is assessed as being suitable it would not be able to progress to unsupervised contact. There would be problems in finding an appropriate supervisor to supervise contact indefinitely.
[21]. If contact occurs the time associated with contact travel could prove to be very stressful for [B]. Also there are costs associated with travel which the mother is not prepared to fund.
[22]. For all the above reasons, it is difficult to see how contact can have positive benefits for [B].
[23]. [The mother] does not wish phone contact to occur between [the father] and [B] as she considers it may be confusing for [B]. Also she perceives that perceives that (sic) he can be manipulated in view of his age. She has difficulties with any kind of contact between [B] and his father mainly due to her own abusive experiences of him.
In her addendum report she considered the matter further and concluded that indirect contact between B and the father would be appropriate. She drew those conclusions in the following manner:-
[14]. [The mother] impressed as a loving and attentive mother who responded well to the interview plans. As indicated in the previous report she acknowledged that she has not fostered [B’s] memories of [the father] because of her desire to protect [B].
[15]. [B] is aware of his mother’s feelings towards [the father] and also aware that [the father] is in jail because of having acted wrongly towards his sisters. He does not appear to have a detailed knowledge of the conduct which has led to [the father’s] incarceration. Although [B] does not have strong memories of time spent with [the father] in the past, the memories he has appear to be positive. [B] has not had contact with [the father] over several years.
[16]. [B] has a strong attachment to his mother and is protective of her. Although his limited recollections of [the father] are positive, [B] does not wish to see him as he recognises that it would upset his mother. He appeared keen to maintain indirect communication with [the father] and indicated that he would like to receive letters, cards and presents from [the father]. He seems insightful and recognises that these indirect forms of communication are less problematic for him to manage.
[17]. Given [B] is still very young, and enjoys a secure and loving relationship with his mother and has established stability within his mother’s new family it is important for his psychological and emotional health that his relationship with his mother is not undermined by complex arrangements which would be difficult for [the mother] to support financially and psychologically and which could be disruptive and confusing for [B].
[18]. [The mother] is opposed to any contact occurring between [B] and [the father]. Her reasons are covered in the previous report. It is unrealistic to expect her to take [B] to prison to visit [the father].
[19]. The reason that [the father] is in prison is because of child sexual abuse against his older daughters. The research literature indicates that child sexual abuse is not gender specific and therefore the Court would need to be satisfied that rehabilitation has occurred before [B’s] safety in his father’s company can be assured. Further, [the mother] is still dealing with the psychological effects of what he has done with his daughters and is concerned to ensure [B’s] protection. She would therefore experience significant difficulty in facilitating time between [B] and his father in a prison environment which is a constant reminder of the offence.
[20]. While [the father] is incarcerated it is not recommended that he has face to face contact with [B]. After he has completed his incarceration, a proper assessment is required of [the father’s] capacity to have a safe and secure relationship with [B] before face-to-face contact is considered. In the meantime it is recommended that [the father] has an indirect relationship with [B] which will enable a face-to-face relationship to develop in the future if and when it is considered to be appropriate.
The family consultant’s evidence was completed late on the first day of hearing. Overnight, and in response to a request by me, she clarified to the independent children’s lawyer that the assessment to which she was referring in her report is a Sex Offenders Risk Assessment.
The family consultant was cross examined by the parents and the independent children’s lawyer in relation to the opinions which she expressed in her 2 reports and I asked some questions myself. The family consultant demonstrated a reasonably sound understanding of the parties, their circumstances and issues in these proceedings. Affidavits can be carefully crafted and testimony given viva voce can often be attended by formality and anxiety, a family consultant such as Ms A has an opportunity to get a true and often less mediated impression of the parties, their concerns and behaviours. I find that is the case here. The father submitted that, as he was only interviewed by Ms A by telephone, she did not have a proper opportunity to assess him. I accept that interviews in person are usually preferable.

I am not aware of why Ms A did not arrange a prison visit to assess the husband in person. However, the father did not point to which part of Ms A’s opinion of him was flawed or inaccurately drawn. I have now had an opportunity to observe the father, via video link, during these proceedings and to interact with him. The family consultant’s observations of the father as being pre-occupied with his own needs and desires rather than focussing on the needs of B accord with my own.
There was no explanation as to why the mother’s partner Mr S was not interviewed by the family consultant. Even if Mr S’s relevance to these proceedings did not occur to the mother, I do not know why the family consultant did not request to interview Mr S.
I consider the description of by the family consultant of the mother’s interstate move as indicating “that she lacks insight into [B’s] needs for the fostering of his relationships with significant other members of his family, particularly his sisters[8]” to be harsh. Also, having heard all of the evidence, I do not share the opinion expressed by the family consultant to the effect that the mother is unlikely to be able to foster a positive relationship between B and his father and that the mother’s home “environment would be negative to his relationship with his father[9]”. I note that in the addendum report the family consultant to some extent recast her perspective on the mother and described her as a loving and attentive mother.
[8] paragraph 15 report dated 2 February 2006
[9] paragraph 19 report dated 2 February 2006
In the family consultant’s addendum report released on 1 September 2006, the consultant recommended:-
[22]. It is further recommended that there be no face-to-face contact between [B] and [the father] until the Court is assured that [the father] has been rehabilitated. An assessment is required after [the father] completes his incarceration regarding his capacity to have a safe and secure relationship with [B]. In the meantime, it is recommended that [the father] has an indirect relationship with [B] through cards, letters and/or presents that are sent to [B] via an address provided by the mother.
As indicated, I was advised subsequently that Ms A was referring to a Sex Offender’s Risk Assessment.
At the end of the cross-examination of Ms A, her recommendation that contact be restricted to mail and letters had not changed. She recommended that twice yearly intervals for that sort of communication were appropriate. Ms A considered that B being given a photograph of the father to display in his room if he wanted to, would be beneficial. At the moment, B only has access to one photograph of the father which is in one of four of the volumes of family albums maintained by the mother. The father pressed Ms A to agree that, if B could not spend time with him face to face, there should at least be telephone communication. Ms A was concerned about inadequate monitoring of the content of the conversations. Ms A did not support any communication more extensive or of a different nature than that which B seeks at this time.
As will be apparent, I am satisfied that the family consultant’s opinion should carry considerable weight.

Relevant law – parenting issues

These proceedings are brought under Part VII of the Family Law Act 1975 (Cth) so in deciding to make any parenting order in relation to B, I must regard B’s best interests as the paramount consideration[10].
[10] Section .60CA
Subject to the best interests of the child being the paramount consideration, s.60B sets out the aims and principles of Part VII. Section 60B is important as it provides the context within which the relevant s.60CC factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors or considerations, the s.60B object and underlying principles may be decisive.
Section 60B defines the aims or objects of Part VII as to “ensure that the best interests of the children are met” by:- are:
(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.
The objects can be regarded as the hard core values of the legislation but may not be of great value in the adjudication of individual cases. Section 60B(1)(a) has particular relevance in these proceedings. It emphasises that if children cannot have the benefit of equal involvement by each parent then the involvement by the less involved parent should be meaningful as to its quality and of the maximum regularity and frequency that the best interests of the child permit.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it would be contrary to the child’s best interests:-
(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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The best interests of the child are the paramount, but not sole, consideration.

Determining the child’s best interest

In determining the best interests of a particular child, I have to consider two primary considerations and several additional considerations.

The primary considerations

The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This is a case where both of the primary considerations are relevant.

The benefit of a meaningful relationship – as a primary consideration

The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
While I did not have the benefit of legal submissions on this point,

I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[11].
[11] pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).
The arguments supporting the first possible interpretation include:
a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
b) The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;
The arguments supporting the second possible interpretation include;
a)      Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
b)     The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
c)      The whole of s.60CC calls for an evaluation of various factors by the court.
d)     Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
e)      The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.

My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to B into the future.
B already has a meaningful relationship with the mother. The father contends that B needs to know him and seeks that I make orders now which would permit personal interaction between B and the father whilst the father serves out his time in gaol and, as far as the father is concerned, in anticipation of much more extensive interaction after the father’s release.
In many cases the benefit of a meaningful relationship by a child with both parents is not an issue and the court is merely required to determine how that can best be achieved. That is not the case here. The family consultant asked the father what he considered to be the benefits to B of visiting the father in gaol and speaking with him regularly by telephone. The counsellor recorded[12]:-
[7]. [The father] was asked to comment on what he perceives to be the benefits for [B] having contact with him. He responded that contact “would be a good thing for [B]…. it would be a good bond” and “all kids need a father/son relationship” but there was no depth to his answer. He commented that the visiting would mean a lot to him as there is a lack of opportunity to be involved with [B] in a meaningful way and said, “we can go insane knowing that you have lost everything”. He expressed concern that if he waited for contact until he leaves prison [the mother] might cut him out of [B’s] life. He acknowledged that he had not considered fully how he might explain to [B] why he is in prison now. He stated that he would be honest with [B] “when the time comes” and explain to him the reasons for his incarceration.
[12] the report of Ms A dated 9 February 2006
The mother has accepted that it is necessary, if not important, for B to have a concept and some knowledge of his father. However, she does not concede that the relationship should be as significant as, or equivalent to, other relationships in B’s life such as B’s relationship with her and her partner. My interpretation is that the mother perceives the benefit to B of having any relationship with the father as being confined to B recognising the father as his other biological parent. There is no support from the mother or the independent children’s lawyer for B’s relationship with the father to approximate a “meaningful relationship” such as is envisaged by the presumptions created by s.61DA and the provisions which flow from s.61DA, being, that the court must consider the children spending either equal[13] or substantial time[14] with both their parents. This view point seems to be supported by the family consultant who concluded her evaluation of the appropriateness of B spending time with the father in gaol with the view that[15]:-
20. [….] In any case even if unsupervised contact is assessed as being suitable it would not be able to progress to unsupervised contact. There would be problems in finding an appropriate supervisor to supervise contact indefinitely.
[…]
[13] pursuant to s.65DAA(1)
[14] pursuant to s.65DAA(2)
[15] page 7 of the first report of Ms A dated 9 February 2006
22. […] it is difficult to see how contact can have positive benefits for [B].
The benefit which I am required to evaluate is that which is likely to accrue to B from having a meaningful relationship with his father as well as his mother.
I have to formulate orders which support the kind of relationship which I conclude it is in B’s best interests to have with the father between now and when the father is released from gaol in 2009.

Protection from harm – as a primary consideration

The second of the primary considerations mirror s.60B(b) and recognises the protection of a child from harm as a necessity.
I have to determine the time to be spent and communication between B and the father whilst the father is in gaol. The father aspires to resume “normal access” with B upon his release from prison but he did not mention what that would entail. Both parents and the independent children’s lawyer conceded that the issues of time with and contact between B and the father must be re-assessed following the father’s release from prison and an assessment of the then prevailing circumstances of the parents and B. In this regard the father stated that he had no intention of seeking out B after his release from gaol, either personally or over the telephone, without first coming back to court.
The mother and the independent children’s lawyer contend that it is not so much the release of the father from gaol which could warrant a

re-examination of the matter as participation by the father in the

pre-release counselling and rehabilitation programmes which will be available to him prior to his release and his eligibility to submit to a Sex Offender’s Risk Assessment.
In terms of risk of harm, the family consultant has as part of her conclusion said[16]:-
[19]. The research literature indicates that child sexual abuse is not gender specific and therefore the Court would need to be satisfied that rehabilitation has occurred before [B’s] safety in his father’s company can be assured.
[16] Family report of Ms A released on 1 September 2006
In the context of me only considering time in and communication from gaol, I do not understand it to be contended by the mother or the independent children’s lawyer that there is an unacceptable risk that B will come to physical harm whilst spending time with his father under the supervision of prison wardens or whilst talking to the father on the telephone.
I understand the contention of the mother and independent children’s lawyer to be that, whilst the father remains in gaol, the harm from which B must be protected is primarily psychological harm. It relates to a disruption in the primary attachment B has with his mother and his sense of belonging and security within the loving environment which his mother and Mr S have provided for him as well as the deleterious effect on B of being exposed to the father’s skewed reality and the father’s noted inability to accept responsibility for his actions and tendency to externalise problems and cast blame on others, most significantly, the mother and B’s sisters[17].
[17] which was noted by Ms A at paragraph 20 of her report dated 9 February 2006
The mother fears that any personal or telephonic contact between the father and B will give the father an opportunity to manipulate B emotionally. There seems to be support for her belief in the records of DHS in particular the girls’ disclosures to the Department of the father’s intimidation of them following their initial disclosures of abuse.
The father cross examined Ms A on why he could not have telephone communication. The gist of these questions was that B needs to hear the father’s voice for the communication to be meaningful. Furthermore, B needs to know the father’s voice so that he is able to recognise the father when he sees him face to face and better able to relate to him. I accept the father’s contention that verbal communication would be more potent and more significant for B than written communication. Ms A also seemed to accept the contention because she spoke in terms of telephone calls being too immediate and too confronting for B and much in excess of what B’s views are about what presence he wants the father to have in his life at the moment. Ms A recognised the lack of screening – it is not as if there is a seven second delay mechanism[18]. As previously indicated, Ms A said that she did not think that telephone communication was safe and her recommendation was that it not occur at this time.
[18] In discussion with the father, this was referred to as the principle that you can’t put toothpaste back in the tube.
I assess that psychological harm as being potentially longer term and more damaging than physical harm. Of course, if B is subjected to psychological abuse, he may also become more vulnerable to the incidence of physical abuse when a later opportunity arises.

Treatment of the additional considerations

The additional considerations are numerous. It is only necessary to consider those which are relevant to this case. However, where an additional consideration is relevant it may either alone or cumulatively with other considerations outweigh the applicable primary considerations. I propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for B the benefit (if any) that may flow from having a meaningful relationship with both parents and ensuring that he is protected from harm and exposure to abuse, neglect or family violence.
Finally sub-s.60CC(3)(m) requires me to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act. (1997) FLC 92-755.

The children’s views[19]

[19] Section 60CC(3)(a)

In determining what is in the child’s best interests the court must consider, amongst other factors, any views expressed by the children and any other factors that the court thinks are relevant to the weight to be accorded to the child’s views. Previously there was a similar provision[20] which required the court to take into account a child’s “wishes”. There is significant jurisprudence from this court in relation to children’s wishes which I consider is relevant and helpful in relation to the court’s assessment of, and weight to be accorded to, B’s views in the context of s.60CC(3)(a).
[20] the repealed Section 68F(2)
The Full Court of the Family Court considered children’s wishes in

R & R: Children's wishes
(2000) FLC 93-000. The court, there comprising Nicholson CJ, Finn and Guest JJ, cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H & W (1995) FLC 92-598 at 81,944.
"The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children."
There must, I think, be a distinction between the concept of children’s wishes and children’s views. “Views” will capture a child’s perceptions, inclinations and feelings but not necessarily involve an aspiration or conclusion. On the other hand “wishes” are the result of perceptions, inclinations and feelings coalescing into a specific desire or ambition in the child’s mind. The requirement to focus on the child’s views, as opposed to wishes, means that I can have regard to the child’s perceptions and inclinations without requiring the family consultant or independent children’s lawyer to make enquiries or elicit the child’s ultimate preference or wish. I agree with the reference in the Explanatory Memorandum[21] that consideration of the children’s views allows “for a decision to be made in consultation with the child without the child having to make a decision or express a ‘wish’ as to which parent he or she is to live or spend time with.” Consideration of a child’s views does not exclude consideration of a child’s wishes.
[21] Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)
Once a child's views are ascertained the next step in interpretation and assessment of the views requires a balancing of the views against the applicable primary and additional considerations which are relevant to the child's welfare. This process was is described by the Full Court in R v R, in relation to children’s wishes, as follows:-
42. […] the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.
[…]
54. […] There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a commonsense way as one of the factors in the overall assessment of the children's best interests." R and R: Children’s wishes (supra)
I consider that in the discussion by the Full Court in R v R, reference to “wishes” can be read interchangeably for “views”.
The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[22] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer.[23] In this case the family consultant has recorded B’s views as being:-
Although his limited recollections of [the father] are positive, [B] does not wish to see him as he recognises that it would upset his mother. He appeared keen to maintain indirect communication with [the father] and indicated that he would like to receive letters, cards and presents from [the father]. He seems insightful and recognises that these indirect forms of communication are less problematic for him to manage.
[22] Section 60CD(2)(a) and Section 62G(2) and Section 62G(3A) the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[23] Section 60CD(2)(b) and Section 62G(2) and Section 68LA(5)(b) the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
The independent children’s lawyer was present during the family consultant’s interview with B in August 2006.
The family consultant recognised that the level of B’s interest in and curiosity about his father may increase, particularly around his 10^th birthday. I assume that B’s personal development and continuing development of his own identity as well as an experience of some communication with the father will contribute to that increased interest. However, I am satisfied that, for the time being, B is content just to receive letters and items in the post from his father and is not expressing a desire to have a more direct form of contact.
I also interpret B’s limited interest in the father as reflective of the fact that B does not currently perceive anything lacking in his family life and that he is the contented and happy little boy that the family consultant assessed him to be.
In interpreting B’s views, I also have regard to that fact that B’s views are not well or even fairly informed. As far as the father is concerned, B does not need to know about the sexual assaults which he perpetrated on B’s sisters and that, without B having a chance to see and talk to the father, B does not know what he is missing out on. I agree that B lacks the maturity to process what the father has done to his sisters and/or that the father maintains his innocence. Because the father’s release date is just 2 years away and B is only 7 years old now, it will necessarily fall to another judge to decide the extent of understanding that B should possess of the father’s wanton immorality before B should be directly exposed to the father. As far as the applications before me are concerned, I am confident that it is not in B’s best interests to have direct exposure to the father until after the father is released from prison, has satisfactorily completed a Sex Offender’s Risk Assessment and in the context of the court looking again at the matter in the then current circumstances.

The nature of the children’s relationships[24]

[24] Section 60CC(3)(b)

I consider the nature of the children’s relationship with each of the parents and other persons inclusive of grandparents and other relatives. I accept that B’s primary bond and relationship is with the mother. I also accept the evidence of the family consultant that previous interruptions in the mother’s care of B, such as occurred when she left him with the father in September 2002 and when he was put into protective custody by DHS in February 2003, may mean that B has a greater need not to be separated from his mother now than would a child whose care had not been interrupted.
The father and B share a biological relationship but I am satisfied that, as far as B is concerned, any personal bond is yet to be established. It is common ground that the father has not seen B since 23 October 2003 when he had a contact visit arranged by DHS. This was shortly before the father was charged with multiple sex offences against D and C and 14 months or so before he was incarcerated. I accept that B has only vague memories of the father if he has any memories of him at all. I am satisfied that B has a positive regard for the father which may be something upon which to build slowly and at a pace appropriate for B’s stages of development and what benefits a relationship with his father can confer on him.
Next to the mother, B’s most secure and significant attachment is likely to be with his step father, Mr S, who has apparently embraced B as his own son. It is Mr S, not the father, who is B’s father figure and role model. Mr S was not a witness in these proceedings but what little I have gleaned of his involvement in B’s life is positive rather than negative.
B refers to Mr S as “Dad” and to the father by his first name. The father is critical of the mother for allowing that to occur. He submits that “she is trying to lead him falsely away from me and it is confusing for the child.” I do not accept the father’s submissions. I am satisfied on the evidence that B understands that the father is his biological father and part of his physical make up whereas Mr S is a primary caregiver for him and the “Dad” of the household in which he resides with his mother and young brother. Mr S is the father figure who cares for him and is available to him on a day to day basis.
I am confident that B also loves his younger brother, E, who is now 2 years old and the child of the mother and Mr S. I am satisfied that anything that sets B apart from E, including a realisation that they do not share a biological father, has the potential to diminish B’s relationship with E and with Mr S. That would not be a good thing for B.
On the evidence, B has been assessed as having a strong attachment to his step sisters, who were sexually abused by the father. He has no contact with them at the moment and he misses them. However, making orders sought by the father will not lead to B seeing his step sisters because the father does not see them at all. The father says that they lied in their statements and in the evidence and that he was wrongly convicted on their account as well as the account of the mother. The mother’s evidence is that the girls have refused any contact with B as well as the father and that “I can understand that they do not want to remember that time of their lives and have tried to move on and put it behind them[25].” I am satisfied that the fact that B does not have any contact with his step-sisters is something that he feels that as a keen loss.
[25] Paragraph 1(g) of the mother’s affidavit sworn on 20 April 2006
My impression is that B has a sound and comfortable relationship with his maternal grandmother. The mother’s evidence was that her mother was the only person outside her household and the family consultant with whom he has discussed the fact that “[the father] is in gaol”.

I also obtained the impression from the content and manner of the mother’s evidence that B recognises Mr S’s parents as his grandparents. On the other hand, the extended family members of the father including his mother have had no contact with B since before he was 4 years old, some 3 years ago. The historical records of Department of Human Services[26] record that the father’s mother exercised 2 supervised contact visits in the place of the father. The father alleges that he was unable to exercise his entitlement to supervised contact prior to his incarceration because of work commitments, re-scheduling and the non-cooperation of supervisors. There is no evidence before me as to what, if anything, that stopped the father’s extended family members from maintaining contact with B from June 2003 until mid-2004 when the mother, B and Mr S started to travel around Australia.

The willingness and ability of each parent to facilitate and encourage the children’s relationship with others[27]

[26] DHS Confidential Court Report for protection application before the Children’s Court, Family Division for hearing on 17 March 2003 which is part of exhibit “LG1” to the affidavit of the mother sworn on 14 November 2003

[27] Section 60CC(3)(c)

I am required to consider the ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent. It is also necessary for me to assess the extent to which each of the parents has, to date fulfilled or failed to fulfil their obligations or frustrated the other parent’s participation in this regard[28].
[28] Section 60CC(4)
There is a history of separations and reconciliations and one parent unilaterally assuming care of B prior to 2002. It is very likely that there are matters of which to be critical in the conduct of both parents in terms of his/her recognition of the importance and willingness to encourage and facilitate B having stable and secure relationships with others. The father says that his contact to B was thwarted first by DHS and then by the mother. He did not ever take contravention proceedings. The father’s work commitments were a constant theme in his inability to be available for contact. I am left with the strong impression that the father did not vigorously pursue any visitation with B after October 2003 and was content to pull back in favour of blaming the mother for not being cooperative. I am most assisted by having regard recent events from, say, 2003 onwards than the earlier history of the parents’ relationship and the B’s care.
As already indicated, the father alleges that the mother has purposefully frustrated his participation in B’s life by moving away from Victoria. I do not accept the allegation as valid. The father fails to acknowledge the fact that his sexual abuse of his daughters is the factor which precipitated B being removed from his care by DHS on 25 February 2003 and him being restricted to supervised visits with B until his incarceration on 16 December 2004. The father genuinely feels aggrieved by the mother having made notifications to DHS of the girls’ allegations of rape, then subsequently making a statement to police in support of the prosecution of criminal charges and then moving from Victoria to New South Wales with her family. However, I am satisfied that those views of the father are not reasonable. The effortless manner in which the father is prepared to paint the mother, rather than himself, as the architect of his misfortune is as misguided as it is worrisome particularly as to the version of reality into which the father would like to draw B.
I do accept that the mother’s move away from Victoria held a collateral benefit for her and that she appreciated that to be the case. But I am not convinced that it was a benefit which she regarded as being obtained at B’s expense. I have already said that I accept that mother’s evidence that her family moved to be in the country and for a bigger, and hopefully, better working opportunity. I find that the father’s perspective on the mother’s move is consistent with his self focussed approach to these proceedings as opposed to a consideration of the position of others including B.
In the context of this consideration, the mother’s obligations and the nature of the father’s participation in B’s life must be read in light of the primary considerations being, inter alia, the need to protect B from psychological harm and exposure to abuse as well as an assessment of what benefit there actually is to B having a meaningful relationship with the father. I am satisfied that, absent evidence of the father’s rehabilitation from or remorse about sexual offending, that the father’s influence and involvement in B’s life must be severely curtailed in order to be free from harm.
I make no adverse finding against the mother in terms of her efforts to fulfil her obligation to allow the father to participate in B’s life. To the contrary, I find that she has acted appropriately and responsibly.

The likely effect of any changes in the children’s circumstances[29]

[29] Section 60CC(3)(d)

In determining what is in the best interests of the children I am required to consider the likely effect of any change in the children’s circumstances particularly in relation to separation from their parents, other children, wider family including grandparents and other persons with whom the children have a relationship.
It should be apparent that I consider that the changes which the father’s proposals would bring about in B’s life are very significant and, in fact, too disruptive, for to be of benefit to B at this time.
The father’s proposals would have B travelling for, I estimate, about 3 days per month. That is a big interruption to his school life and his everyday experiences. At best, it is unrealistic to think that B would not talk about his regular experiences of going to Melbourne, visiting gaol and do so at school – where children are regularly required to write small stories about what they have done on the weekend or recently. At worst, B may realise that he should not talk about the regular experiences and then feel apart from the rest of his community and, even more seriously, his family.
There is also the cost to his mother’s household of about $800 to $1,000 per visit as well as the disruption of her being absent from home and the business each month. That is disruption in a practical as well as an emotional sense.
The mother’s proposals, supported by the independent children’s lawyer, are not as disruptive to B. In my view, the mother’s proposals also satisfy the requirement for B to have some knowledge of the father.
The other aspect under consideration is the father’s application for equal shared parental responsibility. That would be a great change in current arrangements which, in every practical sense, have worked with the mother making determinations to the exclusion of and without consultation with, the father. In my view it is appropriate for that to continue subject to the mother providing the father with information about significant events from time to time.

Practical difficulties and expense associated with contact[30]

[30]Section 60CC(3)(e)

I consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether this will affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
The family consultant mentioned the following in her first report:-
[13]. [B] currently resides with his mother in NSW where he attends school. The distance between Melbourne and the location where [B] lives creates a huge logistical problem in terms of travel arrangements for contact to the prison where his father is incarcerated. There is a lot of travel involved for [B] if visits are to occur as well as the costs associated with travel and accommodation.
The mother lives 13 hours by car from the prison. If they use a commercial airline, the mother and B must undertake 3 hours of driving followed by 5 hours associated with air travel and another

4 hours to the prison, presumably, by hire car. The family has only one car so if the mother takes the family car for any part of the journey, her partner will be left in charge of the premises they manage and their

2 year old son without a vehicle. The mother’s evidence is that she has a personal income of $6,000 but is clearly supported by her partner as are E and B. She says that it would be necessary for her to hire a babysitter to cover her absence from home and to ensure her 2 year old is cared for. Alternatively, they could hire a casual manager at greater cost. The mother was frank in saying that she was not inclined to pay for anything for the father, not even a $1 postage stamp twice a year, but she also said that her household could not afford the financial cost of travel. The mother commented on the costs of transport as including $100 return for petrol to the airport, return flights at between $100 and $300 each for her and B, a hire car and petrol to drive from Melbourne airport to the prison at an unspecified cost and some allowance for overnight accommodation. I cannot see the trip costing less than $800 and perhaps more like $1,000. I am satisfied that the travel required for B to spend time with the father in prison is onerous and very difficult in financial as well as personal terms and is likely to entail 2 full days away from home for B.
The husband proposed that the mother and B undertake the above trip once each month. He said the maximum that he would be prepared to contribute in financial terms is $50 per month. He pays no child support. When asked to comment on whether the amount of travel was fair on B and if it is reasonable for the mother to incur the financial and other costs of travel, he said “I am not responsible for the distance, she moved”. The father also commented that if the business that the mother and Mr S were running was not profitable to support the sort of costs incurred for prison visits, then they should change businesses. When the mother gave evidence that the travel associated with visits as sought by the father would place a strain on her relationship with Mr S, the father said that her relationship should be strong enough to withstand that stain.
The father’s preparedness to assist with costs of travel or to tailor his application so as to minimise the onerous nature of the travel on the mother and, therefore, B is minimal. The father’s attitude is significant not only from the point of view of the lack of assistance he offers the mother but it also reflects adversely on his attitude to the responsibilities of parenthood.
The mother maintained that the prison was not an inappropriate venue for B to spend time with the father. It was a concern also shared by the family consultant. There was no independent evidence before me as to the facilities offered for child contact visits. The father says that it is a pleasant child focussed environment. I do not know whether he bases that on personal observation. However, in the absence of evidence to the contrary, I assume that the Victorian prison system offers the families of offenders a humane and civilized environment in which children can safely and appropriately be reunited with fathers on contact visits. If the facilities were of real concern to the family consultant then she should have arranged to conduct an inspection of the facilities. As it was, her evidence was “I have never been to a prison”.
However, a further practical aspect of B spending time with the father in prison is the nature in which the interaction between B and the father can be supervised. DHS records concerning the father’s contact with B after February 2003 include the following description of a contact visit:-
[The father] has had one access of an hour’s duration, occurring on the 11^th March 2003. [The father] has indicated he has been unable to commit to further access due to his work commitments.
[The father] had access with [B] only. [C] had travelled to the access point, however on seeing her father, informed Protective Services she was not ready to see her father and did not want to participate in the access.
During the access [the father] had to be asked to not discuss protective matters in front of [B]. [The father] persisted in inappropriate questions and statements until he was warned the access would be terminated if he continued.
[B] appeared to enjoy his time with his father. [The father] was appropriate in his interactions with [B] and ensured [B] did not leave access upset.
The father said that his family members could act as supervisors. None of the father’s family members attended the hearing and no material by them was filed as part of the father’s case. Using the father’s family members is not an option which I consider viable or feasible in this case. The father described his mother and sisters and being frequent visitors and supportive of him and I am left with the impression that each of them share the view that the father has been wrongfully convicted. The unacceptability of the father’s family members as supervisors should not come as any surprise to the father because he already had the family consultant’s first report in which she made the following observation:-
[14]. There is also the issue of finding a suitable supervisor to supervise the visits. [The father] has proposed that this mother or sisters would be prepared to supervise. However Dr [M’s] report prepared for the Children’s Court Clinic indicates that in her opinion they are not appropriate supervisors between [B] and his father.
Otherwise, the father relies on the supervision of him by prison staff as being supervision which equates with any supervision which I may require as necessary to protect B. Until the father has been favourably assessed in terms of rehabilitation and/or in terms of a Sex Offenders Risk Assessment, I am not satisfied that it is in B’s best interests to spend any time with the father or to have any immediate or direct communication with him at all. At such time as I could be satisfied that the father has been favourably assessed, I would still require that any time spent by B with the father and communication which B has with the father would have to be strictly and independently supervised. In any event, absent evidence to the contrary, I conclude that the supervision offered for family or child access visits in prison is likely to be directed at prisoner and prison security rather than on the quality and appropriateness of the interaction between father and son. That is, the supervision offered by warders in the contact area is going to be prisoner focussed rather than child focussed. That supervision is inadequate to protect B from what I am satisfied is a real risk of psychological harm to him arising out of engaging with the father on anything but a closely monitored and tightly controlled situation.
The father said that he is semi-literate so it is not easy for him to write to B. He did not deny having written notes to the mother in the past. I accept that the father would not ask any inmates to act as a scribe. Writing might be the least easy medium for the father but it is the well being of B, not the father, upon which I concentrate. The father said that he could make a request of the prison governor for his family visitors to be allowed to take in a pen and paper when they visit. I envisage that a member of the father’s family will assist the father to any necessary extent to write letters or notes or cards to B.

Capacity of the parents to meet the children’s needs[31]

[31] Section 60CC(3)(f)

In determining what is in the best interests of the children, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs.
I am satisfied that B’s physical needs are being met solely by the mother and her household and there is no evidence that B’s physical needs are being met other than satisfactorily.
It is apparent that the mother’s parenting skills may not always have been satisfactory. Her own evidence is that she relinquished care of B to the father in September 2002 because she was emotionally unable to cope and mentally unwell. She deposes[32]:-
[11]. […] in late August 2002 I suffered a breakdown. In September 2002 I told [the father] that I couldn’t stand the stress of his constant attacks any longer and said that he could have the full time care of [B].
[12]. I became depressed following this. I was introduced to illicit drugs at this time by friends and within a short time had lost control of my life. I became addicted to heroin and my health and emotional state deteriorated rapidly.
[32] wife’s affidavit sworn 14 November 2003
[13]. By November 2002 I realised that I had to stop using or it would kill me. I went to live in […] and stopped using all illicit substances save marijuana. I worked steadily to reduce my marijuana use and by May of 2003 had ceased the use of all illicit substances. I have not consumed alcohol or used any illicit substances since that time.
As far as [B’s] emotional needs are concerned, the family consultant assesses him as a sweet, polite and sensitive young boy. I accept the mother’s evidence that she has explained to B that ”Dad ([Mr S]) did not put you in my tummy” and that she has shown B a photograph of the father when he claimed to look like his father.
It seems to me in the very difficult circumstances of this case, the mother has acquitted herself admirably in overseeing B’s emotional and physical well being. He is enrolled in a fee paying school where she says he is progressing well.
The mother’s presentation in court was thoughtful, measured and strong. She impressed me as being a capable and realistic parent.
In relation to the father, I share the family consultant’s views that his capacity to parent is significantly diminished by his inability to accept any responsibility for the crimes against his daughters.
When asked how he would explain to B that he is in gaol he said that he would say that he has done something wrong. When asked what he would say if B asked what he had done, the father said he would say “I will tell you when you are old enough to understand”. The father specified 14 to 16 years old as an age at which B would have a sufficient knowledge of sexual matters and level of personal maturity to be able to understand. There was no explanation by the father of what he would say to B from his release, when B will be 9 years old or thereabouts, until he is 14 or 16 years of age. When

|I asked what the father would say to B when he is 17 or 18 years old, he responded:-
“I’d say I was incarcerated for something I didn’t do – I was believed to have done, the evidence went against me – then if [B] choses not to believe me, that’s his choice to make.”
The father’s responses demonstrate a real and serious deficiency in his capacity to care for B on an emotional basis as well as a lack of appreciation as to the level of curiosity which may arise in B as to the offences committed by the father, now or at any age. The manner in which the father said he would respond to B’s questions when B is 17 or 18 years old also indicates to me that the viability of any future relationship between the father and B may be dependent on B accepting the father’s assertions of wrongful conviction over the versions of events maintained by his mother, his step sisters and on which the conviction rests. The father pleaded not guilty, his daughters and the mother gave evidence for the prosecution, he was convicted and did not appeal. I am satisfied that the father will try to impose on B a skewed reality in which he is blameless and wronged and the perpetrators are the mother and his step sisters.

I am satisfied that the father’s lack of capacity as a parent is something from which B should be spared until B has the maturity and judgment to self protect against the father’s shortcomings. Having regard to B’s age, that is going to be years away.

The children’s maturity, sex, background and other characteristics[33]

[33] Section 60CC(3)(g)

In determining what is in the children’s best interests, I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the parents.
B is 7 years old. He is educated at a fee paying school.
B is described by the family consultant as an endearing and cooperative boy who engaged easily in conversation and impressed her as a sociable and well mannered child.
The family consultant also reported that B “impressed as an emotionally sensitive child and stated that the thing that makes him most angry is ‘when someone fights”.
I am satisfied that at this stage of B’s development, his emotional wellbeing is significantly dependent upon the emotional wellbeing of his mother and the continued stability of his family unit comprising his mother, Mr S and E. This is not surprising given that prior to July 2003 his young emotional life was disrupted in that:-
a)The parents separated when B was only a few months old;
b)when B was just over 12 months old, in October 2000, his parents entered into a fortnight about care regime;
c)between September 2002 and February 2003 B was in the sole care of the father with minimal contact with the mother;
d)on 25 February 2003 B was removed from his father’s care by DHS and put at an undisclosed placement for his own protection. B has not seen the father in any meaningful sense since being removed by DHS. He was accommodated with his step sister C and, very likely, D, between February and July 2003 during which there appears to have been just one contact visit from the father and there is no evidence of how often he saw the mother;
e)when, or shortly after, he was placed with his mother and her partner Mr S in July 2003, he lost all contact with his step sisters whom he continues to miss and wants to see;
f)from July 2003 until now he has been part of the family unit comprising his mother, Mr S whom he regards as his “Dad” and later E.
In her addendum report[34] the family consultant observed:-
[17]. Given [B] is still very young, and enjoys a secure and loving relationship with his mother and has established stability within his mother’s new family it is important for his psychological and emotional health that his relationship with his mother is not undermined by complex arrangements which would be difficult for [the mother] to support financially and psychologically and which could be disruptive and confusing for [B].
[34] released on 1 September 2006
I accept the family consultant’s expert opinion in that regard. I also accept the family consultant’s oral evidence to the effect that B is not sufficiently mature to appreciate the consequences of seeing the father. Furthermore, that B does not possess the requisite maturity or the knowledge of past events to be able to act in a self protective way if required to interact with the father in person or by telephone.
It was raised by the independent children’s lawyer that the mother has some indigenous heritage on her mother’s side. The recent amendments to the legislation introduced new objects and principles including recognition that it is the right of a child to enjoy his or her culture including the right to enjoy that culture with other people who share it[35]. However, there is no evidence that B has a connection to the culture associated with his Aboriginal heritage or, if he does have a connection of which I am unaware, that it has any bearing on the competing applications before me for determination. I do not consider that to be relevant to these proceedings.

The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[36]

[35] Section 60B(2)(e)

[36] Section 60CC(3)(i)

In considering this factor, I must consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil his/her responsibilities as a parent. This factor includes the extent to which each parent has taken or failed to take the opportunity to spend time[37] with and communicate with[38] the children and to participate about major long term issues concerning children[39]. It includes the extent to which the parent has fulfilled or failed to fulfil his/her obligations to support the child financially[40] or otherwise maintain the child. It also includes the extent to which each parent has facilitated, failed to facilitate or frustrated the other parent’s participation in the long term welfare of the children[41] and the other parent communicating with the children[42] or spending time with the children[43].
[37] Section 60CC(4)(a)(ii)
[38] Section 60CC(4)(a)(iii)
[39] Section 60CC(4)(a)(i)
[40] Section 60CC(4)(c)
[41] Section 60CC(4)(b)(i)
[42] Section 60CC(4)(b)(ii)
[43] Section 60CC(4)(b)(ii)
I am required[44], and do, have particular regard to events which have happened, and circumstances which have existed, since the parents separated.
[44] Section 60CC(4A)
I assess the mother as being a conscientious parent to B, at least since July 2003, and intent on maintaining the security of her current family unit. In the context of s.60CC(3)(c), I have already found that the father’s criticisms of the mother’s relocation to New South Wales to be without foundation. In particular, I do not accept that the mother has frustrated or failed to facilitate the father’s participation in B’s long term welfare or the father’s communication or ability to spend time with B to an extent which is inconsistent with B’s best interests.
I assess the mother as having been an entirely responsible parent to B since at least July 2003. Prior to July 2003 the mother is likely to have discharged her parental responsibilities to the best of her ability in relation to B as well as the father’s girls, C and D. The girls chose to confide in the mother in December 2002 concerning the father’s sexual abuse of them. They were both attending school. There was no compulsion on them to chose the mother unless they had a particular trust and regard for her. Their disclosures to the mother, well after separation and some months after she had left B in the care of the father, indicates to me that the girls still considered the mother to be someone who would act to protect them and B even in the face of threats and reprisals by the father, as she did.
The ability of the parents to coexist, cooperate and to deal with each other is frequently a valuable measure of how they cope with parental responsibilities. I am satisfied that the mother has no ability at all to empathise with the father and that, in turn, the father has demonstrated next to no ability to empathise with the mother.
I consider not only the father’s attitude to B but how the father has demonstrated his attitude to the responsibilities of parenthood generally including in relation to C and D. I am satisfied that there is practically nothing by which a person’s parental responsibilities could be measured as low as I measure the discharge by the father of his responsibilities having regard to the fact that he sexually assaulted his adolescent daughters over an extended period.
The fact that the father sexually assaulted his daughters, sought to manipulate them into retracting the allegations and now blames the mother and the girls for his conviction leads me to conclude that, at least for the period under consideration in this case, the father is incapable of satisfactorily exercising the responsibilities of parenthood.
For most of the hearing the mother was a focussed and organised litigant who had recourse to notes and put prepared questions to the father, with good effect. However, on one occasion following an interchange with the father, she lost her composure and sat mute with her head in her hands. My assessment is that the mother would not have coped at all well had the father elected to attend court personally, as he was entitled to do, rather than appear for 2 days by video link.
The fact that the father appeared, in his viva voce evidence, to say that the sexual abuse was alleged to have occurred for “only some months” as opposed to all of the years he cared for them as a satisfactory parent is further evidence of the father’s pathetically low measure.
I am satisfied that the mother is unable to deal with the father at all.

I am satisfied that she finds him abhorrent and is terrified that B will be affected by the father’s actions, even to an indirect degree.

I am satisfied that the mother’s attitude to the father is without malice and is neither wilful nor spiteful. I do not consider that the mother’s aversion to the father reflects negatively on the mother’s responsibility to parenthood.

Any family violence involving the children or any member of the children’s family and family violence orders[45]

[45] Section 60CC(3)(j)&(k)

In the context of this factor, the court only has regard to final or contested family violence orders. I must to the extent that it is possible to do so consistently with the children’s best interests being the paramount consideration, ensure that the orders which I make are consistent with any family violence order[46] and does not expose a person to an unacceptable risk of family violence.[47]
[46] Section 60CG(1)(a)
[47] Section 60CG(1)(b)
There is no family violence order currently in force.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[48]

[48] Section 60CC(3)(l)

Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes.
Ideally courts should make parenting orders that minimise the prospects of future litigation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties parenting children effectively and otherwise moving on with their lives. Parents and children are readily distracted by the demands of litigation. In the vast majority of cases the court should make orders that will be least likely to involve these parties in future litigation. However in this case, absent some agreement being reached between the parties or the father not seeking any increase in his involvement in B’s life, further litigation will be inevitable.
It is in B’s best interests that the further litigation disrupt him as little as possible. This may be facilitated if there is a family consultant who could act as an intermediary as well as to monitor the success of the limited communication I will order take place between B and the father. Other tasks which should be performed by the family consultant would be to check with B at least annually as to whether he wants more or different interaction with the father and to collate a record of the father’s progress through courses of rehabilitation and to identify for the father an appropriate practitioner to conduct a Sex Offender’s Risk Assessment on the father once he is released.
I will make an order, pursuant to s.65L that the Manager of the Child Dispute Services of the Court appoint a family consultant to provide to each of the parties such assistance as I have outlined or which may be reasonably requested by a party in relation to the carrying out and compliance with the parenting orders.
It seems to me reasonable that the period of supervision under s.65L be 3 years from now, which will take the parties and B well past the husband’s anticipated release date. It should not be privileged or confidential. The family consultant will be able to produce a report to the court:-
a)      in the event that a further application for parenting orders is filed;
b)     if the court subsequently requests the family consultant to do so; or
c)      if the family consultant wishes to do so of his or her own volition.
It is not my intention that either of the parties can require the family consultant to produce a report.
I have some hope that the involvement of a family consultant could improve communication between the parents. However, if the family consultant merely examines the letters and parcels passing between B and the father, checks annually to see if B is requesting some adjustment to the regime I impose and oversees in a general way rehabilitation programmes and risk assessment of the father, then B will be well served.

Any other fact or circumstance the Court thinks relevant[49]

[49] Section 60CC(3)(m)

There is a real possibility that, if the father is does not successfully complete the counselling programmes and courses offered him prior to his release and/or achieves unfavourable results in a Sex Offender’s Risk Assessment, he will not obtain orders permitting him to spend time or communicate with B after his release from prison. Notwithstanding his assertion of innocence, the father says that he has requested anger management and behavioural counselling in gaol but been told that he must wait until the pre-release stage of his sentence. To date, all he has done is a yoga course which he said was useless.
Weighing the above considerations, the practical difficulties and the emotional risks, I am satisfied that it is not in B’s best interests to have anything more than limited and monitored indirect communication with the father pending the court re-visiting the matter after the father is released from gaol. However, I also put into the equation as a relevant fact that, eventually, the father may not obtain orders to spend time with B and/or that he may not pursue whatever entitlements he gets (as he did not pursue his rights to supervised contact in 2003 and 2004).
As referred to above[50], at such time as the court determines what involvement the father ought to have in B’s life following his release from prison, it will be relevant that the father has indicated that he expects B to chose whether or not to believe him or, inferentially, his mother and step sisters about whether the father had forced sexual intercourse with his daughters. This casts further doubt on the proposition that B will be having direct involvement with the father after his release from gaol. The uncertainties about what involvement the father will, in fact, be able to have in B’s life after his release from prison, weighs heavily in favour of not imposing on B any regime of direct involvement now.
[50] paragraph 137

Parental responsibility

The father seeks an order that the parents share parental responsibility for B. Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children[51]. In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility[52].
[51] Section 61B
[52] Section 61DA(1)
Equal shared parental responsibility relates to decision making about major long term issues which are elsewhere defined[53] as issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about:
a)      the child’s education (both current and future); and
b)     the child’s religious and cultural upbringing; and
c)      the child’s health; and
d)     the child’s name; and
e)      changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents it is the starting point for apportioning responsibility for decisions about the issues outlined above, irrespective the quantity or quality of the time the father may spend with B.
[53] Section 4
However, where 2 or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly[54]. The concept of joint responsibility carries with it the requirements to:-
a) consult the other parent in relation to the decision to be made about that issue[55]; and
b) make a genuine effort to come to a joint decision about that issue[56].
These provisions mean that consultation and some discussion is required about the major long term decisions the responsibility for which is shared.
[54] Section 65DAC(2)
[55] Subsection 65DAC(3)(a)
[56]Subsection 65DAC(3)(b)
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)      If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence or abuse of the child or another child who is a member of the parent’s family[57];
b)     If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[58];
c)      Where evidence is adduced upon the court is satisfied that the application of the presumption is inconsistent with the best interests of the child in that it would not be in the best interests of the children for the parents to have equal shared parental responsibility[59].
[57] Section 61DA(2)(a)
[58] Section 61DA(2)(b)
[59] Section 61DA(2)(c)
Family violence is defined[60] as, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety. There is also a note to the legislative provision which says that a person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
[60] Section 4
This is a case which falls squarely within the first exception.
I am satisfied to the required standard that the father has committed acts of violence and abuse of his daughters whilst they were living as members of his family which also included B. The acts which are relevant for the purpose of subs.61DA(2) are not confined to the acts for which the father has been committed. They include the intimidatory behaviour disclosed by C and D to DHS and which are extracted above[61] which amount to emotional and psychological abuse. Before me, the father also did not refute the girls’ disclosures of intimidation or their disclosures to DHS of non-sexual physical abuse, extracted above, being D’s complaint that the father grabbed her around the throat and threw her across the room and C’s complaint that he punched her in the stomach.
Otherwise, in the context of subs.61DA(4), I can be satisfied on the evidence, that it is not in the best interests of B for his parents to have equal shared parental responsibility for him.
It should be obvious from the findings in relation to the unchallenged evidence to which I have referred to above, that the father is not a parent with whom leaving responsibility for major long term decisions is consistent with B’s interests. Furthermore, I am satisfied that the mother would not be able to consult with the father to the degree required by s.65DAC(3)(a) and (b)[62] referred to above. As indicated, the father asserts that, if the mother cannot afford to meet the considerable costs of bringing B to Melbourne each month then she should move to another business which will generate enough income for her to do so. In response to the mother saying that the practical difficulties of travelling to the prison each month would place strain on her relationship with Mr S, the father said that a good relationship should be able to withstand such pressure. Both statements show a callous disregard by the father for the welfare of the mother and, through her, the welfare of B. The father lacks the empathy and basic regard which parents have to share for one another before they can successfully co-parent their children and prioritise the best interests of the children over whatever sense of disappointment or anger they may feel in relation to each other.

B’s best interests require that the mother have sole parental responsibility. The mother has agreed to advise the father and keep him advised of major events and developments in B’s education and health. This will enable B to know that his biological father knows what is happening in his life and will provide them with something to discuss in correspondence. The mother said that she will forward school reports to the father. I accept her submission that they cannot be sent direct from the school to the father because it is not in B’s best interests for the father to be able to identify the school which B attends. I am satisfied that the mother and her partner, who are B’s full time carers, require the peace of mind which results from the non-disclosure of their residential and work address and B’s school. In any event, I do not consider that it would be in B’s best interests for anyone associated with the school administration to know that B’s natural father is serving time in gaol with the effect that any correspondence from the school would have to be directed elsewhere.

Consideration of equal or substantial and significant time with both parents

By virtue of me having determined that it is not in the best interests of B that I make an order providing that their parents are to have equal shared parental responsibility for him, I am not required to consider whether I should make an order providing that the children spend equal time[63] or substantial and significant time[64] with each parent.
[63] pursuant to s65DAA(1)
[64] pursuant to s65DAA(2)
In any event, it is abundantly clear that the father’s incarceration in prison precludes him from anything like equal or substantial and significant time[65]. The latter concept is defined to include days which fall on weekends, weekdays, holidays and should allow the parent and child to be involved in each other’s daily routine as well as special events. The father’s incarceration also precludes any substantial and significant time from being considered to be reasonably practicable having regard to the factors set out in subsection subs.65DAA(5) being:-
(a)    how far apart the parents live from each other[66];
(b)    the current and future capacity of the parents to implement an arrangements whereby the children spend equal time with each of them[67];
(c)    the current and future capacity of the parents to communicate with each other and resolve difficulties that might arise in implementing such an arrangement[68];
(d)    the impact on the children of such an arrangement[69] which I interpret as requiring me to again look at the age of the children, their views (and factors which have influenced those views) and the relative benefit to the children of the arrangement; and
(e)    such other matters as I may consider are relevant[70].
[65] substantial and significant time is defined in s.65DAA(3)
[66] subsection 65DAA(5)(a);
[67] subsection 65DAA(5)(b);
[68] subsection 65DAA(5)(c);
[69] subsection 65DAA(5)(d);
[70] subsection 65DAA(5)(e);
It is apparent from the definitions and factors to be considered in the new legislation that the parental involvement which can be most easily supported is that which involves co-operative parents who have ordered their lives so as to be available for the children in whose care they strive and are interested and competent to remain involved. The distinction between those situations and my assessment of the father is enormous.

Conclusion

I have evaluated the present circumstances of each of the parties and their competing proposals in context the considerations and factors to which I am required to have regard when determining how parental responsibility should be apportioned and what time B should spend with the father and what communication there should be between them. I conclude that it is in B’s best interests for the mother to have sole parental responsibility for B and for B’s interaction with the father to be confined to correspondence 3 times a year, including B’s birthday and Christmas, to be strictly monitored by a family consultant appointed to this matter to supervise compliance with these orders.
The independent children’s lawyer is required to explain the outcome of the case to B by telephone as soon as possible.
These are the reasons for which I made the parenting orders identified at the start of this judgment.
ORDERS:
That the mother have sole parental responsibility for the child B born … September 1999.
That the child live with the mother.
That the mother advise and keep the father advised in writing of significant events in B’s life touching on his health and education including forwarding school reports to the father from which any insignia or other identifying factors of the school have been removed.
That the father spend no time by way of face to face visits and have no telephone or direct communication with B save as is provided in these orders or as may subsequently be ordered by a court of competent jurisdiction.
That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant to supervise compliance by the parties with the parenting order made this day (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to be a period of 3 years and to be reportable. However no report be prepared unless a further application in relation to the child is filed whilst this order remains in force, the court orders that a report be prepared or the family consultant of his / her own volition thinks a report should be prepared.
That the father communicate with B by letter, card or present (or a combination of any or all of these) on three (3) occasions each year being as follows:-
a)In the two weeks preceding or following B’s birthday;
b)In the two weeks preceding or following Christmas;
c)During the month of May;
Such articles to be sent by or on behalf of the father by pre paid post to the family consultant assigned pursuant to the preceding order made pursuant to section 65L (“the supervising family consultant”) and be examined by him or her and, unless considered inappropriate, be sent to the mother at her residential address providing that the supervising family consultant ensure that the mother has reasonable notice that she will shortly receive an item by post pursuant to this order.
That the mother by herself, her servant or agents ensure that B receives any items sent by the father, via the supervising family consultant, pursuant to this order and do all acts and things necessary to encourage the child to acknowledge same in writing addressed to the father and sent to him via the supervising family consultant.
That the mother keep the Registry Manager of this Registry advised of any change to her residential address and telephone number and of the residential address and telephone number of B in the event it is different from her own and do so in writing.
That information as the child’s residence provided pursuant to this order be held by the Registry Manager and not released to any party save for the supervising family consultant other than by order of the court.

10.That the mother:-
a)Send to the father at her expense a photograph of or including the child no less frequently than each 6 months commencing on 1 November 2006;
b)Facilitate any request by the child to write to the father if he wishes to do so.

11.That the father notify the supervising family consultant of his release from prison and do so in writing and within 14days of such release.
12.That upon the supervising family consultant being notified of the father’s release from prison she or he notify the wife in writing of that information.
13.That the father be at liberty to provide to the supervising family consultant a photograph of himself, in dimensions not larger than 12cm x 10cm, such photograph to be forwarded to the mother and handed by her to the child and the child be encouraged by the mother to place the photograph in his bedroom if he desires to do so.
14.That each party be at liberty to apply in relation to orders providing for time to be spent by the child with the father and communications to occur between the child and the father following the father’s release from prison otherwise in accordance with this order and, for the avoidance of doubt, pending any further orders being made the provisions of paragraphs 1 to 4 inclusive and 6 to 10 inclusive hereof apply notwithstanding the father’s release from prison.
15.That once in each twelve month period the supervising family consultant speak to B by telephone (unless it is convenient to B to do so in person) to ascertain whether B is seeking any communication or time with the father which is more extensive than provided in this Order and, if B is, the family consultant advise each parent of that fact.
16.That in the event that the father makes application for orders entitling him to spend time with or communicate with B following his release from prison, the father file and serve contemporaneously with that application a copy of any Sex Offenders Risk Assessment to which he has submitted.
17.That pursuant to section 65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.
18.That all extant applications other than to costs are dismissed.

I certify that the preceding one hundred and eighty three (183) paragraphs are a true copy of the reasons for judgment of Bennett J.

Associate:

Date: 6 October 2006