HIGGINS & HIGGINS

[2017] FamCA 878

FAMILY COURT OF AUSTRALIA

HIGGINS & HIGGINS [2017] FamCA 878

FAMILY LAW – CHILDREN – Where the mother sought to discontinue her application on the first day of trial – Where the mother did not oppose the orders sought by the father – Where the father sought orders for the children to live with him and for sole parental responsibility – Where the Independent Children’s Lawyer made submissions in support of the orders sought by the father – Orders proposed by the father made by the Court

Family Law Act 1975 (Cth) ss. 4, 4AB 60B, 60CA, 60CC, 60CG, 61C, 61DA, 61DAC

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

M & M (1988) 166 CLR 69

SCVG & KLD (2014) FLC 93-582

APPLICANT: Ms Higgins

RESPONDENT: Mr Higgins

INDEPENDENT CHILDREN’S LAWYER: Catherine Bint

FILE NUMBER: BRC 9527 of 2009

DATE DELIVERED: 12 July 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 12 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shoebridge

SOLICITOR FOR THE APPLICANT: Peter J Sheehy Solicitor

COUNSEL FOR THE RESPONDENT: Mrs Firth

SOLICITOR FOR THE RESPONDENT: Wheldon & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: C M Bint Family Lawyers

Order

IT IS ORDERED THAT:

1. All previous orders be discharged.

2. The following final parenting orders shall apply for the children:

   (a)       B born … 2006; and 

   (b)       C born … 2008 (“the Children”)

   unless otherwise agreed in writing.

3. The Father have sole parental responsibility in relation to the care, welfare and development of the children.

4. In terms of the father exercising sole parental responsibility:

   (a)       The father will advise the mother in writing of any long-term decision he intends to make as soon as reasonably practicable or no less than 14 days prior to the decisions being made; and

   (b)       The mother will provide her views to the father in regards to the proposed decision in writing no more 14 days after receiving the written notice from the father; and

   (c)       The father will take into account any views expressed by the mother in arriving at the decision.

Exchange of Information

1. The Mother and Father are to:

   (a)       Keep the other parent informed at all times of their residential address, email address and contact telephone number and to notify the other parent at least seven (7) days prior to relocating their residence beyond a 20 kilometres radius from where they currently reside;

   (b)       Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the Children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the Children; and

   (c)       Inform the other parent as soon as reasonably practical of any medical condition, significant health issue suffered by the Children and authorise any treating medical practitioner to relate the Children’s medical information to the other parent.

2. The Parents authorise the schools attended by the Children to give each parent information about the children’s education progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the Children (at that parent’s cost).

3. During the time the Children are with either parent, that parent is to:

   (a)       Respect the privacy of the other parent and not question the Children about the personal life of the other parent;

   (b)       Not speak of the other parent disrespectfully; and

   (c)       Not denigrate or insult the other parent in the presence or hearing of the Children and use their best endeavours to ensure that the others do not.

Living Arrangements for the Children

1. The children live with the Father.

2. The children spend time with the Mother at all times as can be agreed between the parties in writing but failing agreement as follows:

   (a)       For weeks not forming part of the Queensland gazetted State School holidays, and commencing Friday 28 July 2017 and every alternate weekend from 3:00pm Friday until 8:30am on the immediately following Monday with the Mother to collect and return the Children to and from school:

   (i)        In the event that the Friday the Children spend time with the Mother is a Public Holiday, then time will commence from 3:00pm the Thursday immediately prior when the Mother collects the Children from school and conclude at 8:30am on the immediately following Monday when the Mother returns the Children to school;

   (ii)       In the event that the Monday the Children spend time with the Mother is a Public Holiday, then time will commence from 3:00pm the Friday immediately prior when the Mother collects the Children from School and conclude at 8:30am on the immediately following Tuesday when the Mother returns the Children to school.

   (b)       For one half (1/2) of all Queensland gazetted State School holidays, namely:

   (i)For the Christmas school holidays in 2017 only, the children shall spend time with each parent on a week about arrangement with the Father to have the children for the first week of the gazetted school holiday term;

   (ii)In September 2017 and then from 2018, with the Mother for the first half of the holidays in all even numbered years, where the period will commence 3:00pm on the last Friday of the school term when the Mother collects the Children from school and conclude at 3:00pm, the last Sunday of the period when the Mother delivers the Children to the Father’s care;

   (iii)From 2019, with the Mother for the second half of the holidays in all odd numbered years, where the period will commence 9:00am on the first Monday of the period when the Mother collects the Children conclude at 3:00pm the last Sunday of the period when the Mother delivers the Children to the Father’s care.

3. The parents have phone contact with the Children:

   (a)       For the Mother, on the Children’s birthdays, her birthday, Christmas, Easter and Mother’s Day if those days and times are not ordinary days and times that the Mother spends time with the Children. The Mother is to initiate the call; the Father is to facilitate its receipt and ensure the Children’s availability and preparedness; and

   (b)       For the Father, on the Children’s birthdays, his birthday, Christmas, Easter and Father’s Day if those days and times are not ordinarily days and timers that the Father spends time with the Children. The Father is to initiate the call; the Mother is to facilitate its receipt and ensure the Children’s availability and preparedness.

4. The Children are to be permitted to communicate with their parents on the telephone at such times as the children reasonably request and that parent is to facilitate the call.

5. A parent may telephone the Children before 7:00pm but only on Mondays, Wednesdays and Fridays and such telephone time shall commence after 28 July 2017.

6. Unless otherwise agreed and in relation to such communication each parent shall:

   (a)       Ensure the Children are available to receive the telephone call;

   (b)       Arrange for the Children to telephone the other parent on the following night if, for any unforeseen circumstance, the Children miss the telephone call from the parent;

   (c)       Ensure the Children have privacy during the conversation.

Collection and Delivery

1. During gazetted school holidays and at all times when changeovers cannot occur at the children’s respective schools, changeovers shall occur at the D Contact Centre or any such other Contact Centre as agreed between the parties in writing.

2. For the purposes of Order 14 herein, the Mother and the Father shall equally share the costs associated with the changeovers at the D Contact Centre or any such other Contact Centre.

3. Except as otherwise ordered, the changeover point for the transition of the Children between the households is to be the children’s respective school and for that purpose:

   (a)       The parents may collect the Children in person or by their nominee provided that the nominee is an adult  that is known to the children and the other parent;

   (b)       Each parent is to be punctual in attending the changeover and if there is to be a delay is to inform the other parent;

   (c)       Unless otherwise agreed, each parent is not to approach the other and is to remain near their cars so as to enable the Children to move readily between the vehicles.

4. Each parent is to deliver and return the Children’s clothing, school supplies and belongings and the Children’s clothing is to be returned in a clean condition.

5. The parents shall (when the children are in their care) not consume excessive alcohol or permit the Children to be in the presence of anyone doing so.

6. The children shall remain enrolled at E School until each Child completes his primary education.

7. This Order authorises the Father to communicate with Dr F, medical practitioner, in relation to the children’s health and to seek all relevant information to be provided to him by that medical practitioner including any and allergy tests, medications or treatment requirements for the children.  

Dispute Resolution

1. In the event that there is a dispute about the Children or about the interpretation, implementation or enforcement of these orders, the Parents before making any further application to the court shall:

   (a)       Either attend counselling or mediation with an organisation recognised by the Family Law Act 1975 (as amended) or by the Commonwealth Attorney-General; or

   (b) Participate in a family dispute resolution meeting or conference with a Family Relationship Centre or a person authorised under s10G of the Family Law Act 1975 (as amended).

2. The Independent Children’s Lawyer be discharged.

NOTATION:

1. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9527 of 2009

Ms Higgins

Applicant

And

Mr Higgins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Higgins, whom I will refer to as the mother, and Mr Higgins, whom I will refer to as the father, are the parents of B, born in 2006, and C, born in 2008.

2. The children have lived all their lives with their mother, but shortly after the commencement of the trial and while the mother was being cross-examined, the mother announced that she had “had enough” and was “sick of trying to protect my children”. 

3. During cross-examination, she confirmed her view that the Family Court does not protect children and nor does the Department of Communities, Child Safety and Disability Services. 

4. The matter was stood down and when the trial resumed her counsel informed the Court that the mother wished to discontinue her application and would not oppose an order being made as sought by the father.

5. The father is seeking an order that the children live with him and spend alternate weekends with the mother and that he have sole parental responsibility for them.

6. Up until that point in the proceedings, the mother had been seeking an order for discharge of the final parenting order made by consent on 29 September 2011 (amended on 10 October 2011); that she have parental responsibility for the children; that they live with her and spend no time with the father. 

7. The matter was further stood down over the luncheon adjournment and then submissions were made in support of the order sought by the father, by both the father and the Independent Children’s Lawyer who provided a very detailed and thorough exposition of the evidence before the Court, both in affidavit material and in a bundle of documents that was tendered by consent at the commencement of trial.

8. The mother had the opportunity to have her complaints aired and tested in a trial that was listed for three days.  She elected to discontinue her case and to forfeit the children’s care to the person she alleges is harmful to them.

Background

1. The mother and father commenced cohabitation in 2002, separating briefly in 2004 before reconciling and were married in 2005.  The parties separated on 26 September 2008 and were divorced on 23 March 2011. 

2. The father is 50 years of age and a tradesman by occupation.  He commenced a de facto relationship with Ms G in September 2013.  The father has two children from earlier relationships:  H, who is aged 22 and residing in J Town, and K, aged 18, residing in L Town. 

3. The mother is 42 years of age.  The mother commenced a relationship with Mr M in or about February 2010 and they have cohabited since October 2013.  The mother has a son, N, aged 21.  N ceased spending time with his father from age 12.

4. After the parties’ separation, the mother applied for a protection order.  After a contested hearing where the mother was legally represented and the father self-represented, the mother’s application was dismissed. 

5. On 29 September 2011, a final parenting order was made by consent.  The order was amended on 10 October 2011.  That order provided for the children to live with the mother and spend gradually increasing time with the father.  Under that order, the parents had equal shared parental responsibility regarding all matters, except the children’s medical needs and dietary requirements, including the children’s auditory deficits and lactose and food intolerances.  In relation to those issues, the mother had sole parental responsibility and was to consult with the father in relation to any decisions made.

6. The children spent time with the father in accordance with that order from October 2011 until 7 March 2014.  That time included alternate weekends, eventually for three nights per fortnight, and also half school holidays. 

7. The mother stopped the children spending time with the father, as the mother had concerns that the children were being abused and neglected in the father’s care. 

8. On 16 April 2014, the mother filed an initiating application, seeking an order to discharge the consent order made in 2011 and that she have sole parental responsibility for the children and that they live with her.

9. On 18 June 2014, an order was made staying the order of 2011 in relation to the father’s time with the children and providing for the father to spend time with the children, supervised at a contact centre.  From August 2014 until June 2015, the father spent two hours each fortnight with the children at O Town contact centre.  Since June 2015, the father has spent time with the children at the D contact centre at P Town, although it seems that his time has been reduced further to only one and a-half hours each fortnight.

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects and principles in matters that must be considered when determining what parenting order is proper, but so consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer. [1]

   [1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]

   [2] Baghti & Baghti [2015] FamCAFC 71

3. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

   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.

4. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a 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;

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. Section 60CA provides that, in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.  But that, of course, has to be in the context of the particular circumstances the Court is faced with. 

6. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child.  In considering the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

7. ‘Abuse’ in relation to a child is defined in section 4 of the Act and means an assault, including a sexual assault, or involving a child in a sexual activity or causing the child to suffer serious psychological harm or serious neglect.

8. ‘Family violence’ is defined in section 4AB of the Act and means violent, threatening or other behaviour that coerces or controls a member of the person’s family or causes that person to be fearful. Examples of such behaviour are set out in the section.

9. Section 61C provides that each parent has parental responsibility for a child, subject to any order by the Court. 

10. Section 61DA provides that, when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.  The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

1. Where the presumption does apply, the Court is required to consider section 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable. 

2. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. ^[3] 

   [3] Banks & Banks (2015) FLC 93-637

3. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the legislative pathway, I have considered all sections as required when making my determination. 

4. In cases where it is suggested that a child will be exposed to an unacceptable risk of harm, the Court is required to identify the nature of the harm and assess its magnitude and the extent to which the risk can be ameliorated.[4]

   [4] M & M (1988) 166 CLR 69

Discussion

1. The mother filed a notice of risk of child abuse in this matter on 16 April 2014.  In it, she set out the acts or omissions that she alleged constitute abuse as being as follows:

   i)On 26 March 2014, the child B informed the applicant that the respondent told him that “When you move to a new house, monsters follow you, robbers follow you and the enemies that a person could possibly have follow you.”  B stated to the applicant that he was worried and scared that robbers, monsters and enemies would follow him, and the children suffered nightmares and night terrors.  The children had previously suffered nightmares and terrors from approximately October 2011, but they have become worse in recent months.

   ii)On or about 3 March 2014, B said to the applicant that he had had a bad dream and that the dream was about getting in trouble and killed by “dad, baddies and stuff”.

   iii)The children informed the applicant that the respondent showed them a picture of dead dogs taken on his mobile phone.  The picture showed blood on the dogs and the respondent informed the children, “That’s what he did to the dogs.”  The children informed the applicant that the respondent told them the dogs in the photograph were previous dogs he had owned.

   iv)On 21 February 2014, B reported to the applicant that he was worried that he was “going to die” following watching inappropriate television whilst spending time at the respondent’s house.  In addition, on 13 March 2014, B said to the applicant that the reason he worries that he is going to die is because that is what dad tells B all the time.

   v)The children reported to the applicant that the respondent teaches the children to pull their pants down and to expose themselves.  This behaviour occurred initially in 2012 and has recurred and requires monitoring.  The behaviour has been reported to the psychologist treating the children.  This has occurred less often since the children ceased spending time with the respondent.

2. In her affidavit of evidence-in-chief, the mother alleges, among other things:

   a)That the father has a history of mental illness dating back to 2002 and that he had threatened to kill himself on a number of occasions and been admitted to a psychiatric unit;

   b)That she observed him smoking marijuana next to B in or about June 2008;

   c)Because of her concerns, the father did not spend time with the children after separation until mid-2010 when it was supervised by his then partner, Ms Q;

   d)She remained concerned, despite consenting to the final order in 2011;

   (I note that in her oral evidence today, the mother frankly conceded that her evidence was insufficient to establish that the father presented an unacceptable risk of harm to the children prior to the 2011 order); 

   e)In 2012, C was diagnosed with an anxiety condition, manifested in repetitive blinking and subsequently with a condition called Pollakiuria, which is a need to urinate frequently.  In February 2014, B told her that the father had made them watch a television show called “1000 Ways to Die”.  The children spoke to her about death and dying;

   f)In February 2014, the children told the mother and a psychologist, Ms Q, that the father had locked them outside overnight and that, apparently, they were not given any dinner.  B reported that he was scared of the dark, snakes, spiders and that C was lying on top of him.  The father’s partner had found them outside the next morning and asked the father why the children were outside.  B told her in February 2014 that the father locks him in the bedroom and locks C in the bathroom;

   g)The children told her in February 2014 that there were no toys to play with at their father’s and that, on occasion, their father gave them a knife to play with.  In February 2014, C told her that the father taught them to take down their pants and show him their bottoms; 

   h)When the children were younger, they exhibited fear of police; 

   i)In March 2014, C said that the father hurts animals;

   j)In March 2014, C said that he did not like his father and did not want to go to his home ever again;

   k)B told the mother that the father had bow and arrow and that he had used it at them, that he hurt them when he hit them, had showed them a gun and that the father showed the children his bottom.

3. It is important to note that, despite this very lengthy list of complaints or concerns, there is no mention in the mother’s affidavit of evidence-in-chief of any allegation that the children were at any time bleeding from their rectums, which is an allegation that appears in the Department of Child Safety records, nor of sexualised behaviour, other than already referred to, but further details of alleged sexual behaviours appears in the Department of Child Safety records.  The notifier is, of course, not divulged in the Department of Child Safety records. The records state that the notifier said that a medical practitioner had said the children are likely to have been sexually abused. The doctor in question denied making that statement. The Independent Children’s Lawyer submits that the mother is more likely than not the notifier given other content in the document. I am unable to make that finding as the mother was not asked about that.

4. On the basis of the information which was contained in the mother’s affidavit material which the mother concedes she did not raise with the father, the mother suspended the children’s time with him.  The mother contends that she had previously reported her concerns of illnesses and injuries she believed the children had “contracted” when spending time with him and any allegations had been denied by the father.  No particulars of any alleged injuries or illnesses are provided in her affidavit evidence.

5. On 7 March 2014, the mother wrote the father an email informing him of her decision in the following terms:

   [Mr Higgins], as it has come to my attention that the children have, I believe, been neglected and abused when they have spent time with you, the children, for their own safety, will not be spending time with you until further notice.  I do not believe the children are safe when they spend unsupervised time with you. Please direct all communication to my lawyer.  [Ms Higgins].

6. The father has not spent time with the children unsupervised since March 2014.  The mother deposes to other matters which have seemingly fortified her view that the children are at risk in their father’s care, which have allegedly occurred since March 2014.  One example is that in early 2015, B refused to eat buns and when she inquired why, he said,

   Because these buns have got flour all over them and dad used to make me and [C] eat plates full of flour when we wouldn’t eat our dinner and now I hate flour.

7. The mother alleges that the conditions suffered by C are as a result of anxiety.  No medical evidence was produced.  The mother corrected a statement in her affidavit in her evidence-in-chief in which she had said that Dr R, the psychologist, had said that the anxiety was caused by C spending time with the father.  In the brief time that the mother was in the witness box, about 50 minutes, I was left in no doubt that such was the mother’s view, but readily conceded that Dr R had not, in fact, expressed that view.

8. The father denies all allegations made by the mother.  He concedes that he did suffer from depression at or around the time that they separated, for which he was successfully treated.  He has persisted in attending his fortnightly time with the children for the past three years. 

9. There have been four family reports prepared in this matter by three different report writers:  Ms S in 2010 and again in 2011; Mr T in late 2014 and Mr U in June 2017. 

10. In her summary assessment and conclusions, Ms S opines:

    63) It seems that nothing has changed since I saw this family a year ago. 

    64) The mother presented again with an exhaustive list of concerns about the father’s care of the children.  She was unable to supply data to support any of these.  Indeed, many of them were presented as hints and innuendo rather than actual allegations.  For example, she made a firm point of telling me that there was relevant DOCS material, but when asked for detail, she said that she didn’t have any idea what this might be.

    65) The mother raised concerns about the father’s drug use and mental health.  Indeed, she has told [K’s] mother that these are serious issues.  I understand that the father may have been slow in undertaking drug tests, but I am informed that these have been returned clean.  Neither the father’s treating psychiatrist nor the children’s lawyer independent psychiatric assessment provide her with piece of mind about his mental health. 

    66) Yet again, the mother did not offer any balance to her view of the father, even though it appears that the children enjoy seeing him.

    67) The mother raises concerns about the children’s safety in [H’s] presence.  She adverts here to his past history of adjustment difficulties.  While I cannot dismiss her claims about his medical and behavioural history, his warm and personal manner contrasted greatly with this image.  Moreover, I would be disturbed if this lad’s confidence and self-esteem were blemished by scurrilous scuttlebutt during his vulnerable adolescent developmental period.

    68) She continues to seek supervised contact and she now dismisses [Ms Q] as a suitable supervisor in the light of [Ms Q] not attending to matters that the mother believes were necessary.  She now thinks that it may be necessary to utilise a contact centre, which would, of course, reduce the children’s time with him to two hours per fortnight, despite the fact that nothing has happened to the children.

    69) It is my view that the mother has held a long-standing, prejudicial view of the father as a poorly adjusted person and her view of everything associated with his relationship with the children is distorted by this perceptual lens. 

    70) She is a devoted mother who is meticulous in her care of the children.  While acknowledging that these children have had serious hearing disabilities, I have wondered whether, after rereading the history of physical and mental illness problems she has nominated for other family members, she may preoccupy herself with medical ailments rather than take a more robust view of the children’s minor complaints and injuries.

    71) I did not see a need for the father’s time with the children to be supervised in 2010 and I continue to see no need for it.

    72) His request for every second weekend, including overnight care, is modest and I believe that it is in the children’s interest to maintain a normal relationship with their father. I recommend that they spend half of the school holidays with him, but that this is for periods of not more than one week until [B] completes grade 1.

11. Ms S went on to recommend that the children live with the mother and spend every second weekend, from Friday afternoon until Monday morning, with their father, and half of school holidays.

12. Mr T observed the children’s interaction with the father to be warm and affectionate and noted that there were no instances of the children appearing uncomfortable in the presence of the father or his partner.

13. Dr V, psychiatrist, undertook a psychiatric assessment of the mother in November 2010 and the father in March 2011.  There were no concerns that either party suffered from a psychiatric disorder.  Indeed, she expressed the view that it would be advisable for the father to have unsupervised time with the children.

14. Mr U prepared the most recent report after seeing the parties, their partners and the children in June 2017.  He noted the affectionate interaction between the children and the father.  Both boys expressed the desire to spend more time with their father and did not understand why they had to see him at a contact centre.  Mr U noted a good attachment between the children and each parent.

15. All report writers have referred to the mother’s litany of complaints against the father. 

16. From the evidence to which the father and the Independent Children’s Lawyer have taken me, and from my own perusal of the material relied upon by the parties, I am satisfied that the father is devoted to his children and that they have a close and loving relationship.  Despite the limited opportunity for Ms G to spend with the children, I have no reason to doubt that the children are fond of her.

17. I am not satisfied that there is a need to protect the children from harm from the father.  Indeed, the comprehensive review of the evidence to which the Independent Children’s Lawyer’s counsel has taken me persuades me to be able to positively find that the children are not at risk of harm from their father, let alone an unacceptable risk of harm.

18. Given the mother’s views expressed over the last three years, an issue arises as to whether or not the children would be at risk of psychological or emotional harm from having unsupervised time with her.  The Independent Children’s Lawyer, supported by the father, submitted that they are not at risk, given that, despite her complaints and the limits to which she has placed on the father’s time, the children nevertheless have a close relationship with their father.  It is not suggested by the father or the Independent Children’s Lawyer that the mother’s time should in any way be restricted, other than that once the children come into the care of the father, which it is proposed to happen today at Court, arrangements having been made for the children to be brought to Court and for Mr U to assist in the transition of the children to their father, that the mother’s time with the children not commence until 28 July and thereafter to be each alternate weekend and for half holidays, save that the Christmas holidays in 2017 are to be on a week about basis.

19. I can only hope for these children’s sake that the mother takes the opportunity to continue to be what, on all other respects, has been a meticulous mothering of them to this point in their lives.  It would be a tragedy for these children to be, in effect, abandoned by their mother and certainly something that would not be in their best interests.  It is certainly something that has troubled me greatly from the time that the mother announced her position, that these little boys will be removed from a loving parent who has cared for them for all of their lives.  But, of course, the mother has made the election that she has.  Perhaps that is in circumstances where she acknowledges her inability to facilitate an ongoing relationship between the children and their father, and it may well be her attempt to acknowledge the importance of that relationship to them, although she cannot consent to it now.  I acknowledge that what I have just said is speculation, but I can hope that that is perhaps her position, and certainly that she continue to have a relationship with her children.

20. The other issue that concerned me was how the children would manage this transition to their father.  The Independent Children’s Lawyer is certainly very supportive of this change and the children, I am satisfied, will have the benefit of a loving parent who will do all he can to ensure that the children make this transition in the best possible way, and he will be supported in this by his partner of a number of years, Ms G.  The children will continue at their current school which, no doubt, will offer some assistance to them in providing stability, despite the loss of living fulltime with their mother.

21. But in the circumstances of what appears to be the mother’s inability to recognise the children’s need to have a full and loving relationship with their father up until today, that these are the best arrangements for the children in the circumstances and I propose to make the orders as sought and consented to by the Independent Children’s Lawyer and the father, and I note the mother’s position through her counsel that she does not oppose the orders being made in those terms, including that she keep the father informed of her residential address and email and that her time with the children not commence until 28 July and that her telephone time with the children not commence until 28 July.

22. The best thing for these children going ahead, of course, will be for their mother to support the change which, no doubt, she will find difficult.  But, as I have speculated already, her first step may be the fact that she has not pressed her position today and is not opposing the orders.  That would be the best outcome for the children: that they have the support of both parents in what will be a considerable and, no doubt, traumatic, at least initially, change for them.

23. Given the fact that the parties have had, really, no communication for a number of years, the fact that they have been involved in litigation for a very long time and the mother’s position today causes me to find that it would not be in the children’s best interests for the parents to have equal shared parental responsibility. 

24. Accordingly and for those reasons, I make the orders as set out in exhibit 3.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 12 July 2017.

Associate:

Date: 18 July 2017