Geisler and Geisler

[2018] FCCA 3959

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEISLER & GEISLER [2018] FCCA 3959

Catchwords:
FAMILY LAW – Parenting – interim parenting orders – whether it is in the children’s best interest to bring finality to the proceedings or to extend the time that the proceedings are before the court – consideration of what is just versus what is expedient – finality is good but justice is better.

Legislation:

Family Law Act 1975, ss.60B, 60B(4), 60CA, 79

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)

Cases cited:

Rice & Asplund (1979) FLC 90-725

SPS & PLS [2008] FamCAFC 16
Ras Behari Lal v King Emperor [1933] All ER 723
Smith v Western Australia [2014] HCA 3
Gordon & Gordon [2015] FamCA 616

Noam Chomsky ‘The State-Corporate Complex: A Threat to Freedom and Survival’ (Speech delivered at the University of Toronto, 7 April 2011)
Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014)

Applicant: MR GEISLER

Respondent: MS GEISLER

File Number: PAC 4720 of 2015

Judgment of: Judge Harman

Hearing date: 10 December 2018

Date of Last Submission: 10 December 2018

Delivered at: Parramatta

Delivered on: 10 December 2018

REPRESENTATION

Counsel for the Applicant: Ms Grew

Solicitors for the Applicant: Legal Aid NSW Wollongong

Counsel for the Respondent: Ms Conte-Mills

Solicitors for the Respondent: Rowley & Ross Lawyers

Counsel for the Independent Children’s Lawyer: Ms Fallon

Solicitors for the Independent Children’s Lawyer: Mark Whelan Lawyers

ORDERS

1. By consent, Orders are made in accordance with the Minute of Order executed by the parties and the Independent Children’s Lawyer marked Exhibit ‘A’ attached hereto.

2. The matter is adjourned for further mention and directions to 11 November 2019 at 12noon.

3. THE COURT NOTES that upon the matter returning before the Court 11 November 2019 and if all issues are not resolved to finality, the matter will then be advanced to trial as soon can be accommodated and subject to the probable need to obtain an updated Family Report.

EXHIBIT A

BY CONSENT, AND PENDING FURTHER ORDER, IT IS ORDERED:

1.That Order 2 of Orders dated 31 March 2016 and Orders 1 to 3 of Orders dated 12 October 2016 be discharged.

2.That the children, [X] born … 2011 and [Y] born … 2014, shall live with the mother.

3.That the children shall spend time with the father as follows:

Stage 1

3.1.For a period of 3 months, on each alternate Sunday from 1:15pm until 4:30pm (and in the event that the Contact Centre is unable to facilitate changeover at such times, on each alternate Sunday at times as nominated by the Contact Centre with the father’s time to be no less than 3 hours), commencing from 18 November 2018;

Stage 2

3.2.Following the conclusion of Order 3.1 and for a period of 3 months, on each alternate Sunday from 11:30am until 4:30pm (and in the event that the Contact Centre is unable to facilitate changeover at such times, on each alternate Sunday at times as nominated by the Contact Centre and with the father’s time to be no less than 5 hours), commencing from 10 February 2019;

Stage 3

3.3.Following the conclusion of Order 3.2 and for a period of 4 months, on each alternate Sunday from 9:30am until 4:30pm (and in the event that the Contact Centre is unable to facilitate changeover at such times, on each alternate Sunday at times as nominated by the Contact Centre and with the father’s time to be no less than 7 hours), commencing from 5 May 2019;

Stage 4

3.4.Following the conclusion of Order 3.3 and pending further order, on each alternate weekend from 4:30pm Saturday until 4:30pm Sunday (and in the event that the Contact Centre is unable to facilitate changeover at such times, on each alternate weekend at times as nominated by the Contact Centre and with the father’s time to be no less than 24 hours), commencing from24 August 2019;

Other Times

3.5.From 9:30am until 4:30pm on Father’s Day;

3.6.On 24 December from 12:00noon until 3:00pm;

3.7.Such other times as may be agreed to by the parents in writing from time to time.

4.That the father’s time with the child is suspended on Mother’s Day from 9:30am until 4:30pm.

5.That for the purposes of changeover, changeover is to occur at the Contact Centre in B Location unless otherwise agreed in writing.

6.That the father shall be solely responsible for all costs associated with the Contact Centre facilitating changeover.

7.That in the event that the Contact Centre is unable to facilitate changeover on 24 December as set out in order 3.6, then the father shall spend time with the children from 12:00noon until 3:00pm on the Friday before Christmas Day (and in the event that the Contact Centre is unable to facilitate changeover at such times, at times as nominated by the Contact Centre with the father’s time to be no less than 3 hours).

8.That each party shall contact the Contact Centre within 7 days and thereafter do all things necessary to facilitate changeover of the children occurring at the Contact Centre, including but not limited to attending any appointments.

9.That each party shall be at liberty to telephone the children on a nominated phone number on a day and time as agreed between the parents and failing agreement between 4:30pm until 5:00pm each Wednesday whilst the children is not otherwise in their care, and the other party shall facilitate such calls by ensuring the availability of the children and the availability of a telephone or mobile phone for such purpose.

10.That each party shall inform the other party of their contact telephone number and e-mail address, and advise the other party in writing within 48 hours of any change in these details.

11.That each parent is restrained from consuming alcohol when the children are in their care and 12 hours prior to the children coming into their care.

12.That the parties shall communicate by e-mail correspondence for any parenting issues.

13.That the Final Hearing listed on 10 December 2018 and 11 December 2018 be administratively adjourned to a date in late November/early December 2019 at a date and time suitable to the Court.

NOTATION A:            Prior to the children spending overnight time with the father as set out in the Interim Consent Orders above, the father agrees to take a photograph of the bedroom(s) that he intends on the children sleeping in and will cause such photograph to be sent to the mother or mother’s solicitor no less than 7 days prior to such overnight time commencing.

NOTATION B:            The parties have agreed to review the current parenting arrangements in late October/early November 2019 by attending a further mediation through Legal Aid NSW.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4720 of 2015

MR GEISLER

Applicant

And

MS GEISLER

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to future parenting arrangements for two young children:

   [X], born 2011, seven – nearly eight years of age; and,

   [Y], born 2014, four – nearly five years of age. 

2. The parties to the proceedings are the children’s parents, their father, Mr Geisler, the Applicant, their mother, Ms Geisler, the Respondent.

3. The interests of the children are capably represented by an Independent Children’s Lawyer.

4. The proceedings are listed today to commence a trial anticipated to last two days.

5. The parties have, to their credit, filed the material that is necessary to enable the matter to be addressed on a defended basis. However, the parties, jointly with the Independent Children’s Lawyer, seek adjournment of the hearing.  Instead of final determination, the parties and the Independent Children’s Lawyer seek the making of interim Orders that would operate for a period of 10 to 12 months. It is envisaged that the matter would then be subject to further family dispute resolution. The matter would then return to the Court and, subject to what has transpired in the intervening period, either conclude consensually and on a final basis or advance to trial.

6. The course proposed by the parties and the Independent Children’s Lawyer apprehends significant delay. If the matter were to return before the Court in November 2019, (however the Court might then be constituted and however the Family Law Act might then be drafted, in light of present legislative proposals and the current Australian Law Reform Commission Enquiry), then without significant changes to the Court’s resources, a final hearing would then not likely occur before 2020. That is especially so as if the matter returned with significant factual controversy and requiring further hearing time, then it is inevitable that an updated family report would be required. 

7. The reports that have been prepared to date do not apprehend or take into account nor assess the children spending unsupervised time with their father. However, unsupervised time has recently commenced. Two such visits have recently occurred. The proposed interim orders provide for unsupervised time. If the matter did not resolve then a further report, to assess these changed circumstances, would be necessary. On the basis of present resources, if a further report were required then such a report would not be prepared until mid-2019, even if ordered today. The matter would not be allocated hearing dates until after completion of that report and the filing of amended trial material. In all probability the matter would be heard in the first half of 2020 or 18-24 months hence.

8. The dispute between the parties is somewhat long-running. As is submitted by Counsel for the Independent Children’s Lawyer, that circumstance is not entirely the fault of the parties. Some brief consideration of the history of this litigation is necessary to give a context to that delay and to the path that I propose to take. 

9. The proceedings were commenced by an Application Initiating proceedings filed a little over three years ago on 25 September 2015.

10. When the Initiating Application was filed, a first return date of 9 December 2015 was allocated, that being three years and one day ago. Service had not occurred prior to the first Court event, as the mother’s whereabouts were not then known. Commonwealth information orders were made to aid and facilitate service. 

11. The proceedings then next came before the Court on 5 February 2016.  At that time, material had only recently been received in response to the Commonwealth information order and, accordingly, service had still not been affected. No fault could be attributed to Mr Geisler. The matter was then further adjourned.

12. The matter came before the Court for the third time on 31 March 2016. On that date, the mother appeared and was legally represented. The mother had, on that day, filed a Response which joined issue with the father’s Application. At that point, it was proposed by the mother that the father would spend either no time with the children or supervised time with the children. The same relief was proposed on both an interim and final basis.

13. On 31 March 2016, orders were made which required the parties to engage in intake appointments with a supervised contact service. The proceedings were adjourned for interim hearing. Consistent with the delays which were then apparent before this Registry, the interim hearing date allocated was 13 October 2016, some six, nearly seven months after the Court event.

14. When the proceedings next came before the Court on 13 October 2016, and to the credit of the parties, a number of interim orders were made by consent. Those orders provided for the father’s time, subject to ongoing assessment of suitability, to commence through a supervised contact service for a period of two hours per fortnight, the maximum that could be accommodated by the service in light of their funding deficiencies. A family report was also then ordered.

15. There was a significant delay in preparation of the family report, such that it was not released to the parties until 19 February 2018, some 16 months after it was ordered. A part of that difficulty would appear to have been a desire to ensure that time through the supervised contact service had commenced and was occurring before interviews, there being a potential benefit to the assessment if it were so. However, the real reason for delay was simply an absence of resources, the family consultancy service being chronically under-resourced at that time such that with all working as hard as possible, indeed, working beyond what was reasonable, such delay was still apparent.

16. Following the release of the family report, the proceedings were listed for hearing 25 to 27 July 2018. That listing was before a visiting Judge.  That listing was ultimately vacated through no fault or lack of generosity on the part of the visiting Judge but due to changes in other arrangements and commitments within the Registry. Accordingly, the trial dates were vacated and the matter listed instead to 26-27 September 2018. 

17. In turn, those dates also were vacated, following a call over on 3 August 2018. An Independent Children’s Lawyer had been appointed at the time that the family report was released, consistent with the recommendations made therein. Following the appointment of the Independent Children’s Lawyer there was some optimism, on the part of the parties and the Independent Children’s Lawyer, that all issues might be capable of resolution. That optimism did not see the resolution of all issues, though the interim agreement now advanced was negotiated or substantially so.

18. Fresh hearing dates were then allocated, being the trial scheduled to commence today. 

19. The orders that the parties have agreed to provide a number of stages for the father’s practice of time with these children. The first stage, which the parties have now commenced, provides for a period from 1.15pm until 4.30pm, or such other times as the contact centre, as a changeover service, can facilitate. That regime is intended to operate from 18 November until mid-February 2019. Time will then increase to be from 11.30am till 4.30pm each alternate Sunday. Stage 3, if it might be so described, commencing 5 May 2019, will increase the time to a full day, 9.30am till 4.30pm. Stage 4, commencing 24 August, will see the introduction of overnight time, 4.30pm Saturday till 4.30pm Sunday or, if those times cannot be accommodated for contact centre changeover, a 24-hour period convenient to the changeover centre.

20. It is thus envisaged that the matter will be adjourned and listed for mention in November/December 2019, a full 12 months hence, to ascertain the success or failure of those arrangements. The parties would attend family dispute resolution, prior to that Court event, to ascertain whether a final agreement might be achievable. If it cannot be achieved, as already indicated, there will need to be further resource allocation and unavoidable delay, as resources simply will not permit this matter to reach a final conclusion without necessary evidence being prepared and that will, with the limited resources of the Court, take time.

21. Both of the parties and the Independent Children’s Lawyer are legally aided. That is not an issue of concern for the Court. It is simply another impost upon the resources of the parties and/or the Legal Aid Commission, of which I am conscious but which cannot intrude upon the determination of the paramount issue in this case, the children’s best interests.

22. The matter has been called on with a view to ascertaining whether the case could, perhaps, proceed down a different path, by final orders being made and with a right reserved to the parties and/or Independent Children’s Lawyer to relist the proceedings in the event that the arrangements either break down or if the parties are unable to resolve future arrangements upon the expiration of the agreed stages.

23. The family report that has been prepared in the proceedings is somewhat guarded in its recommendations. That is not a criticism. It is an appropriate position for the author of the report to adopt. The report concludes with the recommendation “that the Court determine whether the children should spend time with Mr Geisler and in what manner based on the Court’s assessment of whether the children would be (sic) an unacceptable risk of harm in Mr Geisler’s care”.

24. The fundamental issue in this case relates to past alcohol abuse by Mr Geisler. I do not raise that issue, nor raise it in those terms, to be critical of Mr Geisler. Mr Geisler has taken enormous strides towards struggling with and dealing with his conceded addiction. It is not an easy task. As he has, no doubt, become aware, it is a lifelong commitment to sobriety and he has started that journey, albeit that he is in the early stages of that journey. The damage that has been wrought to the level of trust and communication between these parents, as a consequence of Mr Geisler’s descent into that addiction, is profound.

25. The damage to the children’s relationship with their father is equally profound. It had led to the termination of practice of those relationships for some little time and until these proceedings were commenced and even longer, there having been a delay of many months while the contact service was engaged and the father resumed the practice of a relationship with these children. 

26. It is to be remembered that since orders were made in early 2016 there has been nearly two years of supervised visits between the father and these children. Those visits have gone well and have seen the children’s resumption and development of a relationship with their father. When the relationship resumed the children were then five and two years of age, respectively. It has been a difficult journey for all involved in this case.

27. The real issue here is to balance the position of utility and finality against the position advanced by the parties and the Independent Children’s Lawyer, namely, a cautious approach of developing a staged introduction of unsupervised time between these children and the father and then reviewing arrangements or the conclusion of the proceedings today based on the presently available evidence. It perhaps speaks to the role of the Court in parenting proceedings and in addressing judiciable controversies generally.

28. The principle of finality is well known within civil litigation. A Court should hear and determine a cause of action and, once determined, the matter should not return without good reason. The family law jurisdiction has recognised the importance of finality as a manifestation of the Best Interests Principle, in the line of cases commencing with Rice & Asplund (1979) FLC 90-725. The principles were succinctly summarised by Warnick J in SPS & PLS [2008] FamCAFC 16 post the 2006 amendments. I do not need to repeat them for the purpose of this determination. Whilst these proceedings do not involve a re-opening of proceedings, (though the alternate, suggested path would) the principles have some relevance as a consideration of the impact of delay and ongoing litigation arise.

29. Ultimately, I am satisfied, albeit with some hesitance, that orders can and should be made on an interim basis, as agitated by the parties and the Independent Children’s Lawyer. My hesitance to do so has arisen from two matters. Firstly, it is the Court’s role, as a tribunal of fact, to hear and determine judiciable controversy between parties. It is not the Court’s role to case manage or to manage and oversee arrangements between parties. However, in this case, there is some utility in an exception being made.

1. The past history presented by the facts briefly touched upon above has had profound impact upon all. I am conscious that the Amended Response filed by Ms Geisler on 6 July 2018 proposes, on an ongoing basis, that there be supervision of time. The concession that is made by Ms Geisler, in now agreeing to move towards and trial unsupervised time, is a seismic shift in her position. As is described by Ms Geisler’s Counsel, it is a position that is adopted by Ms Geisler with some hesitance. She is placing a great deal of faith and trust in things being different in 2018/19 as to how they were in 2014/15.

2. Mr Geisler has, during the time that these proceedings have been before the Court, undertaken not less than three extensive pathology investigations with respect to his liver function. The results of those tests are suggested to give some confidence that Mr Geisler is abstaining from alcohol use. Whilst Mr Geisler’s addiction could not be described as concluded it might be that the devil, whilst not dispatched, is certainly kept very much behind Mr Geisler.

3. One would hope that this will continue to be so - for Mr Geisler’s sake, let alone the sake of these children. It is a confidence that Ms Geisler cannot quite unreservedly adopt at this point but which she is prepared to entertain.  In those circumstances and noting how difficult a decision it must have been for Ms Geisler to even attempt such a regime of time, it would behold the Court to offer some accommodation to Ms Geisler, as the predominant parent of these children, to provide her with the cautious support she perceives by the matter remaining before the Court.

4. That must be offset against the very stresses of ongoing litigation that are described by Warnick J in SPS & PLS [2008] FamCAFC 16. In the vast majority of cases, it is so. To have a Court case hanging over one’s head – these parties already, for in excess of three years now – by the time they return, even if with a consensual resolution of the matter, more than four years – is a significant impost. It distracts them from their role as parents. It intrudes into their lives. It potentially diminishes their enjoyment of life and of their children’s childhoods.

5. That reservation leads to the second. The principle of finality, whilst validly addressed by Full Court authority such as Rice & Asplund onwards, has an important place in the management of litigation. However, I am conscious of that which fell from Lord Atkin in Ras Behari Lal v King Emperor [1933] All ER 723 and as reaffirmed and adopted by the High Court in Smith v Western Australia [2014] HCA 3 as recently as 2014:

   Finality is good but justice is better

6. In this case, there is not just the issue of justice and its perception by the parties.  There are issues of timeliness and the children’s best interests. There is great pressure upon the Court, at this point in time, to be focused upon timeliness and especially focused upon the disposal of matters, to ensure that matters come in the door and out the door in the shortest possible turnaround, using as few resources as can be begrudgingly spared, assuming they exist.

7. In this discussion of quicker and cheaper justice, focused upon the mantra, quoted like a sane automaton, “justice delayed is justice denied”, vision is lost. The whole purpose of the expression – the ancient maxim “justice delayed is justice denied” - is to focus upon the importance of timeliness. Justice is not achieved by dealing with matters quickly. Justice is achieved by dealing with matters in a timely fashion – the reason two separate words exist in the English language – quick and timely. Timeliness involves dealing with a case in the time and using the time necessary to do justice. Justice is what Courts do.  In a parenting case justice is fundamentally founded in the best interests of children.

8. In this case, I am satisfied, as perhaps one of the rare exceptions to the civil doctrine of finality, that the case should be prolonged, not through a desire to actively manage the affairs of these parties – they will do that themselves with the assistance of the Independent Children’s Lawyer – but to give some comfort and reassurance, particularly to a somewhat vulnerable mother, predisposed to anxiety, regarding the very steps that are now to be taken, and to provide some support and reassurance to Mr Geisler that, whilst this case is on foot, the Court will be supportive of his relationship but also vigilant as to ensuring the children’s safety.

9. That is not something that can continue forever. When the matter returns in the latter part of 2019, it will need to be either concluded consensually or moved, as quickly as can then be achieved, to a final determination. 

10. In the discourse regarding cases being disposed of quickly and cheaply, what is sadly absent is doing things better – the very thing that one would think the focus would be upon, particularly when addressing issues of such importance as the safety and best interests of children.

11. A non-lawyer, far wiser than me, opined to me in my youth, in the context of high school woodwork, that one should always “buy the best tools you can afford and look after them”. Perhaps that is sage advice for those considering review and amendment of the family law jurisdiction, to build the best system achievable and to look after it – not, in Chomskyesque fashion,[1] to underfund and under-resource the system for many years and to then point to the inefficiency of that system as a basis for change. It is that underfunding and under-resourcing that has befallen this Court for many years, certainly since I joined it in 2010, with resources diminishing in real terms or, at best, static and with ever increasing and ever more complex workloads.

12. As I have sought to statistically demonstrate by research, the workload of this Court – the first-instance Commonwealth Trial Court – is far from simple, notwithstanding the dismissal of that proposition in many quarters. This Court deals with 85 to 90 per cent of family law cases in this country. In the last financial year there were over 17,000 final orders applications and nearly 22,000 interim applications One third of the cases dealt with by this Court involve allegations of drug and alcohol use, family violence, child abuse and/or mental health issues in combination. This case touches upon each of those factors.

    [1] Noam Chomsky ‘The State-Corporate Complex: A Threat to Freedom and Survival’ (Speech delivered at the University of Toronto, 7 April 2011).

13. 80 per cent of cases before this Court – research consistent not only with this Court’s own data but that of National Legal Aid and the Australian Institute of Family Studies – involve allegations of family violence.  This case most assuredly does. That reality leads to the final and ultimate issue of importance:  the children’s best interests. 

14. As Forrest J has opined in Gordon & Gordon [2015] FamCA 616, (particularly paragraphs 2 to 5 thereof) the best interests of children must inform all decisions that are made in parenting proceedings. If the paramountcy principle in section 60CA of the Family Law Act 1975 is to stand for anything, then it must infuse all aspects of this Court’s discharge of jurisdiction. It should perhaps dictate decisions regarding resources. A decision as to whether a case should be heard and determined on a final basis simply because hearing dates have been allocated and there is pressure to ensure that cases are disposed of, is, in this circumstance, contrary to the paramountcy principle in section 60CA. What is required is for this Court to make decisions based on evidence and responsive to furthering and ensuring the best interests of children.

15. I need not canvass the merits of the orders that are proposed in great detail. They are agreed by both parents and supported by the Independent Children’s Lawyer. It is sufficient to observe that the objects and principles in section 60B support the orders being made. The Court must ensure that children’s best interests are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. That is a difficult proposition in this case.

16. For the last two years, these children have practised a relationship with their father in the somewhat artificial environment of a supervised contact service. It is not a criticism of the service. They do a phenomenal job with very little funding.  But what it means is that the meaningful involvement of the father of these children, in these children’s lives, has not really commenced and cannot with any assurance as to safety or sustainability if heard today.

17. Two hours a fortnight at a contact centre is not meaningful involvement. For some children, it is the only involvement or the only safe involvement that can be achieved. However, there is the alternative for these children of some delay permitting a better and more fulsome assessment of what might ultimately be in their best interests. Section 79 of the Family Law Act 1975, which deals with financial proceedings, contains specific provision to permit the Court to adjourn proceedings when it is anticipated that there will be a change of circumstances. If it is good enough in a financial case it is assuredly good enough in a parenting case. Children’s best interests are more important than money.  That should apply as a principle in this case. It should also apply with respect to decisions regarding structural family law (as described by Clare Huntington in her excellent text “Failure to Flourish: How Law Undermines Family Relationships”.

18. The change in this case is the potential redemption of Mr Geisler, his continued hard work to deal with his medical issue of addiction, to remain alcohol free and to be the best parent he can be for these girls. These children should not, with such change possible, be denied the opportunity of experiencing their father away from the contact centre. Similarly, they should not be required to experience the distress and anxiety of their mother making significant concessions towards this consensual interim arrangement without the potential for ready address of difficulties if they arise, although one would hope they will not.

19. All of that supports orders being made as sought by the parties and the Independent Children’s Lawyer. It very much flies in the face of the case being out of the door within 12 months. In this case, focusing merely upon expeditious conclusion or disposal would cause significant difficulties and would be contrary to the children’s best interests.

20. Human behaviour is not readily predictable. As the old Yorkshire saying expresses, “There are naught queer as folk”. For these folks, their “queerness”, if it might be so described, are their peculiar circumstances. Mr Geisler’s difficulties with addiction, the allegations each raises with respect to family violence, and Ms Geisler struggling, as must be acknowledged, to be very much a single parent throughout that entire period whilst those difficulties are addressed.

21. These children deserve better than a system that has kept them delayed for three years without any significant resources that can be offered to them so as to provide support and assistance. Adjournment and further delay at this time can be explained and justified as warranted by reference to the children’s best interests.  Delays up until today, a delay of three years and one day, can only be explained by a lack of resources – too few Judges and too few family consultants to deal with the Court’s workload in a timely fashion.  If the best interests of children are genuinely the primary consideration and the family, the fundamental unit of society, is each entitled to protection and support, one would wonder why that is so. 

22. I am conscious that the Convention on the Rights of the Child[2] is incorporated into the Act, by section 60B(4), as an additional object. The preamble to the International Convention, prosaic as it is, describes childhood as a special and important place where children should be entitled to grow up in “a family environment, in an atmosphere of happiness, love and understanding” and where the family is entitled to “necessary protection and assistance so that it can fully assume its responsibilities”. To have any opportunity of experiencing those aspects of their life, and particularly in connection with their fractured family and a relationship with each of their parents, requires that there be, in this particular case, some delay and more resources.  Sadly, it will be a potentially significant delay.

    [2] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

23. But for these children, I am again struck by the words of Lord Atkin that “finality is good but justice is better”. Justice for these children is fundamental to assessing their best interests. Those best interests, as set out in the Act, particularly the objects and principles, require that they have every available opportunity to experience, safely and in slow steps, a movement towards what could be described as a more regular relationship with both of their parents – certainly, the potential to experience their father as sober and away from a contact centre – so that they can be part of his life and he part of theirs and, at the same time, ensuring that the mother is scaffolded through the support and assistance of her legal representatives, who have served her needs well to date, the Independent Children’s Lawyer and the Court.

24. For those reasons, I propose to accede to the proposals of the parties and the Independent Children’s Lawyer and to make interim orders rather than final orders, thus inevitably extending the time in which these proceedings will be before the Court by at least 12 months, possibly longer. 

25. For those reasons, orders are made in accordance with the minute, exhibit A, signed and dated by me today.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 6 February 2019