HIRD & VANSTONE

[2011] FamCA 711

FAMILY COURT OF AUSTRALIA

HIRD & VANSTONE	[2011] FamCA 711
FAMILY LAW – CHILDREN –  Where the Father has a history of alcohol abuse – Where there are some findings of family violence – Where there are allegations of sexual abuse against the father – Allegations not substantiated – Graduated contact to allow for unsupervised overnight time with the Father – Both parties to undergo therapy to allow for this reintroduction.
APPLICANT:		Ms Hird

RESPONDENT: Mr Vanstone

INDEPENDENT CHILDREN’S LAWYER: Judy Stewart, Solicitor

FILE NUMBER: BRC 5178 of 2008

DATE DELIVERED: 2 September 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 23, 24 and 26 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan of Counsel appearing for the Applicant Mother

SOLICITORS FOR THE APPLICANT: Rhonda Sheehy & Associates

COUNSEL FOR THE RESPONDENT: Mr Laws of Counsel appearing for the Respondent Father

SOLICITORS FOR THE RESPONDENT: Smith & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Green of Counsel appearing for the Independent Children’s Lawyer

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stewart, Solicitor of Stewart Family Law

Orders

IT IS ORDERED THAT:

1. The Mother and Father have equal shared parental responsibility for the children, B born … 2002 and C born … 2004 (“the children”).

1. Each parent have sole parental responsibility for making decisions in relation to the children that are not major long-term decisions when the children are in the care of each parent.

1. The children live with the Mother.

1. The children spend time with and communicate with the Father at all times as agreed between the parents and failing such agreement, as follows:

a.   commencing on the second Saturday after these Orders are made, each Saturday from 1.00 pm to 5.00 pm for a period of four (4) weeks;

b.   then, each Saturday from 11.00 am to 5.00 pm for a period of two (2) weeks;

c.   then, each Saturday from 9.00 am to 5.00 pm for a period of two (2) weeks;

d.   then, each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday for a period of four (4) weeks;

e.   then, each alternate weekend from after school Friday to 5.00 pm Sunday.

1. In the event that the Father relocates to within a twenty (20) minute drive from the children’s schools then the Father spend time with the children at all times as agreed between the parents and failing agreement from after school Friday to before school Wednesday.

5.A.That all overnight time between the children and the Father shall not commence

until the parties complete the counselling referred to at paragraph 18 of the Order

and upon completion the therapist will forward to the Independent Children’s

Lawyer a report and the Independent Children’s Lawyer has leave to bring the

matter back before the Court.

1. The children spend time with and communicate with the Father and the Mother at all times as agreed between the parents and failing such agreement, as follows:

a.  with the Father and the Mother for Christmas as follows:

i.in even numbered years, with the Mother from 9.00 am 24 December to 3.00 pm 25 December and with the Father from 3.00 pm 25 December to 6.00 pm 26 December; and

ii.in odd numbered years, with the Father from 9.00 am 24 December to 3.00 pm 25 December and with the Mother from 3.00 pm 25 December to 6.00 pm 26 December.

b.   with the Father and the Mother for Easter as follows:

i.       in even numbered years, with the Mother from 9.00 am Easter Saturday      to 12.00 noon Easter Sunday and with the Father from 12.00 noon   Easter Sunday to 6.00 pm Easter Monday; and

ii.      in odd numbered years, with the Father from 9.00 am Easter Saturday   to 12.00 noon Easter Sunday and with the Mother from 12.00 noon   Easter Sunday to 6.00 pm Easter Monday;

c.  with the Father and the Mother for each of the children’s birthdays (and with   both children) as follows:

i.         if that day falls on a school day, from after school to 5.30 pm with the   Father and from 5.30 pm to 7.30 pm with the Mother;

ii.       if that day falls on a non-school day, in even numbered years with the   Mother from 9.00 am to 1.00 pm and with the Father from 1.00

pm to 5.00 pm; and

iii.if that day falls on a non-school day, in odd numbered years with the            Father from 9.00 am to 1.00 pm and with the Mother from 1.00 pm to 5.00 pm.

d.   on Father’s Day, in the event the Father is not due to have the children with

him, from 9.00 am to 5.00 pm on that day;

e.  on Mother’s Day, in the event the Mother is not due to have the children with her, from 9.00 am to 5.00 pm on that day;

f.  for each gazetted school holiday period with each parent for one half of those holidays with the Father to have the first half of those holidays and the Mother to have the second half of those holidays in odd numbered years and with the Mother to have the first half of those holidays and the Father to have the second half of those holidays in even numbered years.  The changeovers for these holidays, unless otherwise agreed between the parents, shall occur at 5.00 pm on the day at the halfway point of each gazetted school holiday period and at the front gate of the residence of the parent who has the children in their care at that point in time.

6.A     Changeovers other than those specified here and before at school shall take    place at the F Club.

1. Either parent be at liberty to telephone the children when the children are not in their care.

1. Each parent shall keep the other parent informed of the details including the      names and addresses of the children’s school, day care or health professionals,      including dentists in writing and advise of any change to that information within seven (7) days of any change.

1. Each parent shall advise the other parent, as soon as is reasonably practicable, of any serious illness or medical emergency that relates to the children.

1. This Order is sufficient irrevocable authority for the children’s educational and health service providers to provide to the parents any information, document or thing in relation to the children (including, but not limited to reports, letters, photographs and the like) and to discuss all matters pertaining to the children’s education, health and wellbeing and to ensure that all day care and school records include both parents as persons to be notified in case of emergency. The costs, if any, of such information shall be borne by the parent requesting same.

1. Each parent shall be at liberty to attend any extracurricular or school activity involving the children whenever a parent is entitled to attend such activities.

1. The Father shall continue to attend counselling with the Alcohol, Tobacco and Other Drug Services (‘ATODS’) as directed by his counsellor with ATODS.

1. The Father be restrained from consuming alcohol twelve (12) hours prior to and during the time he spends with the children.

1. The Father be restrained from bathing the child, C, and physically assisting the child, C, with her intimate personal hygiene except in the case of emergency.

1. The parents refer to the Father as ‘Father’, ‘Dad’ or ‘Daddy’ in the presence of the children and use their best endeavours to ensure that the children also refer to the Father in these terms.

1. Each parent shall provide to the other parent their contact telephone number and residential address and contact telephone numbers in writing within forty-eight (48) hours of any change to such details.

1. The parents shall not denigrate the other to or in the presence of the children.

1. Within three (3) days of the date of this Order the Father and the Mother each contact Mr D (phone …) for the purposes of arranging family counselling with a view to:

a.        restoring the children’s relationship with the Father;

b.encouraging in the children and the Mother the belief that the Father has not sexually abused the child, C; and

c.encouraging in the children confidence in feeling safe with the Father as a person who will not harm them.

1. The parents share equally in the costs of the counselling with Mr D.

1. The parents provide a copy of these Orders and the Reasons for Judgment to
   Mr D.

1. The Independent Children’s Lawyer be discharged immediately subsequent to the date of receipt of the report.

1. All parties have the liberty to apply.

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5178 of 2008

Ms Hird

Applicant

And

Mr Vanstone

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Hird, for certain orders in relation to the children of her marriage to the respondent, Mr Vanstone, being B, born in 2002, and C, born in 2004.  The parties entered into cohabitation, and married in 2000, and said they entered into a cohabitation in what appears to be in the late 1990s.  They remained together until 11 May 2007 when there was a final separation between the parties, and since that time they have lived separately and apart.  The parties have been able to resolve any questions of property settlement.  The father is at present residing in the former matrimonial home, and the applicant mother is residing with her present husband in a house purchased by those parties, it consists of a house on some, two acres in area, which is quite appreciated by the children.

2. Obviously, this marriage was not one that was made in heaven.  There have been great difficulties between the parties.  Insofar as physical violence and/or domestic violence is concerned, I am quite satisfied on the evidence before me that on one occasion the father lost control of himself and slapped the mother, or struck the mother, or assaulted the mother.  I am also satisfied that other than for that, there have been a considerable number of disagreements between the parties, engendered, perhaps, by personality clashes between them, and engendered, perhaps, by the father’s excessive consumption of alcoholic liquors which I will be touching upon at a later stage, and perhaps the mother’s “aggressive” personality, as has been said by the father.

3. Unfortunately, the children were, on occasions, witnesses to these verbal stoushes – if I may use that word – I do not think they were available – witnessed the – (B was upstairs) insofar as the one assault was concerned, and I must say that it is distressing for the children, not only to see physical violence amongst their parents, but also verbal stoushes, which do not advance the welfare of the children for their future life at all.  However, that has ceased, according to the parties, when they separated, but thereafter for a period there was an endeavour on both parties’ part to put forward the welfare of their children to such an extent that generally they agreed, and there were occasions when, in fact, the father was able to partake of more than the contact which had been agreed to by the parties in the consent order of Federal Magistrate Howard in 2009, and I incorporate in these, my reasons, the consent order entered into between the parties before Federal Magistrate Howard on

   
   

   14 October 2009.

4. Thereafter, it is alleged by the father that, notwithstanding consent orders were made, difficulties were being put in his road to exercising and enjoying the periods agreed between him and the mother, and endorsed by this Court.  I think there is much in what he says.  The mother – I refer to the Easter problem, which the mother has an explanation for, equally, the father has an explanation for, where there were some difficulties and the father did not enjoy the period particularised in the consent order in relation to Easter.  I use that only as an example.  I make this quite clear, I do not believe that I should be sitting in judgment and castigating both parties in any depth and detail in relation to their attitude towards each other, or their attitude toward the children - they have to have an ongoing relationship with each other, and I always tend to think that it is absolutely essential that some pride be left in the parties so that they can face the other.

5. There are no winners or losers in this case as far as I am concerned, save for the children, and I sincerely hope that they will win.  That is all I am going to say.  The crux of the matter arose in about October 2010.  At that time, as appears from the mother’s evidence, and in particular I refer to annexure A, a letter drafted by the mother in late 2010, and forwarded, by email to the father on or about 22 or 23 October 2010.  I refer to and incorporate that letter, in these, my reasons for judgement, for the following reasons.  I consider that the situations that were itemised – and I use the mother’s words – contained in that letter, which go from paragraph 1 to 13, perhaps encapsulate the mother’s concerns.

6. (1), I am more than satisfied on the evidence before me that what B allegedly said to the mother did not take place, that there is no evidence before me, particularly in relation to the father’s two drink-driving offences, that any of these offences took place in a motor vehicle.  They took place on a motorbike, and these are the ones in 2008 and 2009, which he has endeavoured to explain.  I think that explanation, with great respect to him, is somewhat pathetic, he being a person who is involved, if I can put it that way, in the brewing trade, he being employed by, as I like to refer to it as, E Pty Ltd for a period of some 25 years should know the destructive effects that even two beers, as I think he referred to, have upon the blood alcohol content of an imbiber, a party who partakes of alcohol.

7. Admittedly, these offences were on the low scale.  I think at maximum were about 0.58, or below 0.6 anyway, and whose punishment was not that severe from the legal side, but as a result of something which I will touch upon at a later stage he lost his job with E Pty Ltd after he had been with them for 25 years.  He faintly suggests that it was as a result of Mr Hird, the present husband of the applicant mother, because he approached a gentleman at E Pty Ltd and informed him of the difficulties which Mr Vanstone had with drink-driving convictions.  Mr Vanstone says in his material that as a direct result he was fired.  I do not think that is the case; I think it might be a causa sine qua non, but not a causa causans put to him by counsel for the mother;  I think it was his lie to his employers that caused him to be dismissed, the fact that he denied that he had been charged with a second offence, it was proved that he was, and he was already on probation for the first offence.  I must say I thought that was reasonably decent of E Pty Ltd because they have a strict no-alcohol policy for obvious reasons.

8. He lost his job.  I do somewhat criticise Mr Hird, I do not think it was necessary for him to approach E Pty Ltd at all, and it was totally unnecessary, but I do not think that it was totally his fault that this gentleman, after 25 years, was dismissed.  Insofar as 2 is concerned, this is the Easter long weekend to which I have referred, and once again the parties have different views upon what took place, and whilst I do not commend either of them for what happened, I do not think this is of extreme concern, but I do take it clearly into consideration.  B has been hit on three occasions by the father - this is a question of degree, and this is over a considerable period.  Whilst I do not approve of excessive force to be applied to a child, it does not appear to me to have really disturbed B to any great extent, although I think he does, on some occasions, say that he has had nightmares about it.

9. I am fully aware that the general consensus is that children should not suffer assaults upon their person by parents who have their control - perhaps some years ago that would be considered farcical.  It has already fallen from me that I was hit by my mother – and I use that word advisedly – with a billycan on one occasion.  I do not think in any way it has affected me.  These – I said I was going to touch upon each of them, but I feel that looking into each of these matters – which are of concern to the mother, and quite rightly so, but they are of concern which I tend to feel has been slightly exaggerated, and I am supported in that conclusion by what really took place.  This letter was drafted with the assistance, as I understand, or in discussion, preferably, with the children, and at a round-table conference on a night – I cannot remember what day of the week it was – and the mother sort of said to them, “Well, what else do you want me to have stopped?”, and it appears from her affidavit at or about this time, I think, or shortly after, the child, C, disclosed – see paragraph 47 and 48 on the affidavit of the mother of 18 July, she set out what the child disclosed to her.

10. She immediately came to the conclusion, as I understand, that this was evidence, and strong evidence, of a sexual interference by the father with his daughter.  This letter, which is dated 22 October, makes no mention of what the mother said was something which concerned her gravely.  As she says at paragraph 50 of the aforesaid affidavit she was in a state of shock, yet she did not raise that in that letter whatsoever.  The disclosure took place, allegedly, on 21 October.  The letter was dated 22 October, and as I understood was finalised on that evening.  I am quite surprised that a matter as shocking as this was in no way raised by the mother in this letter, and the only way that she raised it, as I understand it, with the father was by what is known as a pretext call - she visited the police, quite properly so – I think, perhaps, a little prematurely.

11. She visited the police, and the police set up what I could only say, insofar as our American cousins are concerned, was a form of entrapment, that the telephone call was directed by her to him in the police precincts, as I understand, albeit she was in a room on her own, where she made allegations to him.  Such conversation was taped, and it is before the Court, and I would expect that the police were hoping for some sort of admission to be made by the father so that they could use it against him at a later stage.  I must say, I do not practice in the field of criminal jurisdiction, and have not done so for 30-odd years, but I would be surprised that, in fact, an admission made by the father in those circumstances would be admissible in a court of criminal jurisdiction.

12. I would be particularly surprised, however I do not know, and I cannot come to one conclusion or another, yet, of course, in America, as I read some of their authorities, it would mean that the complaint, the charge, would be instantly dismissed as being entrapment.  It quite surprised me.  However, the father categorically dismissed the allegations that he had interfered with his child, and has done so consistently since then.  This failure to complain in the letter, where she complains about everything else, was raised by counsel for the independent children’s lawyer and he has put a fair bit of weight on it, and I think probably, in all the circumstances, he is right, and as I infer from his submissions, it is, if in fact the mother was so concerned about this being a sexual attack upon her child by the child’s father, she would have made more song and dance of it at the time.

1. I have no worries that, in fact, C is telling what took place, but I consider that what really took place is more what is set out in Ms F, she being a family consultant who prepared a report annexed to an affidavit of 11 February 2011, wherein at paragraph 53 she is discussing the matter with C, and C says – and I read it verbatim:

   When I stated that her mother had told me something [C] had said to her about her father, [C] responded in a soft voice, ‘I don’t really want to talk about that cos it makes me feel sad and makes me a bit scared”.  She referred to her father as “[Mr Vanstone] –

   and I will touch upon that –

   and then a little later after some play with puppets C clearly identified to me that [Mr Vanstone] had touched her “round here” as she pointed to the top of her thighs, between them, her back and her anus area.  She told me it was “after bath time, because there was red.  He had to put cream on it.”  She added, “I didn’t get to tell Mum that.  He didn’t exactly touch me, he was just looking to see if my bottom was red, if it had little itches. 

2. Now this, on its own, may, in effect, be sufficient, one would have thought, for a mother to perhaps be relieved to a certain extent, but the complaint which arises by the mother is that if that is the case why did not the father explain that at a much earlier stage, put up the explanation which he subsequently did in the trial affidavit, where he indicates that in fact something like that did take place, that C was complaining about her vagina area, that he did examine it, and that he placed, as he says, calamine lotion, which is entirely different from a cream – I am fully aware of calamine lotion, having suffered it for some years past. 

3. This explanation is easily related to what C said, and in my opinion I accept the explanation of the father, notwithstanding he did not raise this until some, I think it was seven months later, wherein he should have, but he explains it by saying that he did not think in any way that what he had done was a sexual attack upon his daughter, and as a result thereof he did not think it was necessary.  He just denies that anything sexual took place and that it was unnecessary for him to explain it further.  With great respect to Mr Vanstone, Mr Vanstone does tend to be somewhat slow in thinking;  I do not say that he is subnormal or anything of that nature, but he gives me the impression of being a somewhat slow and inward thinking man, and I do not believe that he would have the cunning – if I may put it that way – to jump upon an explanation which Ms F says C referred to in her report, particularised here and before me, and use it to explain what is a sexual attack upon his daughter.

4. I make it quite clear, of course, that contact in accordance with the order of Howard was stopped in or about the month of September of 2010, for those reasons which have been put forward by the mother (see letter already referred to), and consequently, this attack must have taken place prior to, I think it was father’s day weekend in September.  There have been at least two – all of these matters were referred to the police, the police did not see it necessary to interview the father, and no steps have been taken by the relevant children’s department.  I understand that the file was closed as early as November 2010 by the police, and subsequently the Department of Children’s Services closed their file as unsubstantiated.

5. The second report was done by a Mr G.  His report is wide-ranging and of great assistance to me.  He gave evidence, and I was particularly impressed with his evidence.  The mother and Mr Hird, her present husband, were concerned about, shall we say, the sexual activities of C, particularly insofar as attempting to kiss Mr Hird on the mouth, her grinding in a sexual way, and her masturbating.  I put to Mr G, “Was this indicative of a child who has been sexually interfered with?” and he said, “No, it can be many things.  It can be just general exploration,” or one after another, he said, “It is not evidence.  It can be evidence, but it is not evidence that a child has been sexually exploited in any way whatsoever.”  He goes on – and this was objected to at some part – at his report, commencing paragraph 10 headed Evaluations and Recommendations, to make certain comments about the attitude of the mother and her present husband towards the children.

6. One, he is concerned about the fact that the children are being allowed to call the present husband of the mother “daddy” or “dad”, and that they tend to refer to the father as “[Mr Vanstone]”.  Initially, he said that both Mrs Hird and her present husband were unaware that this, in effect, was not to the best interests of the children.  I believe they are now aware that that is the case, and they will attempt to stop the children from doing so.  The explanation which they put before me is somewhat reasonable, since H, the son of Mr Hird, comes over, and it appears to be that the children wish to be one and refer to

   
   

   Mr Hird as “dad” as H does.  The matters that I have already touched upon are raised by Mr G – not all, but particularly at paragraph 10.3 and in relation to the contact by Mr Hird with the employer of the father, and the fact the children’s attachments to the father have been compromised.

7. The interactions that he observed between the father and the children are less functional than they were, as he reads, in the report of Ms F.  He particularly emphasises the fact that B was acting in a very strange manner, and he considers that that showed some degree of anxiety - in fact, I think I said some considerable anxiety on the part of the parties.  At paragraph 10.8, he also touches upon – which I think is a very important matter in this – the father’s significant drinking.  Dr J, who is a well-known psychiatrist, has examined the parties and he has given his report.  He is of the view that the father is an abuser of alcohol, and is not dependant upon it.  I am quite satisfied he was, and is.  Alcohol addiction is an insidious disease, and it is a disease.  I do not believe at this stage he is an alcoholic, because he has been able to cut it down and there does not appear to any withdrawal symptoms of any significance.

8. He has had the support of ATODS, and he indicates that he will continue to do so.  He has done several courses as well in relation to management of children.  As I say, alcohol is insidious, it catches up on you, and recidivism is extremely, extremely bad, up to 86 per cent.  I make that statement because I have had several cases, comparatively recently, where experts in that field – 86 per cent of men will go back to drinking.  Women are even worse - up to 95 per cent.  It is an almost impossible task to give it up.  He is not there yet, but he could be, very easily, and not know it.  He must put his children’s welfare first and not that of something in a bottle.  His minimisation – if I may put it that way – of the dangers of his excessive drinking concerns me.  He has made undertakings, or has given undertakings.  I will accept such undertakings, but if he steps out of line once he will be in trouble before me.  There have been allegations by the father that the mother and her present husband, Mr Hird, have endeavoured to alienate the children.  I do not think that is the case.  I think that perhaps the mother has been hyper-protective of the children, with some reason but not as much as what she says.  I think she has exaggerated the dangers.

9. I do not know why, perhaps it may be just that very protective attitude of mothers towards their children, but she must realise the children deserve, and have the right to know their father, that, should all things be equal, that will continue.  I am more than satisfied in a case such as this that because the children have only had supervised contact with the father since I think the beginning of April, or thereabouts, that it is unfortunate that supervision is very, very good in lots of ways, but if, as I have found in this case, there is no reason to believe that the father has sexually attacked – and I use that word – or sexually interfered, or acted inappropriately with his daughter, it still is in the minds of the children that there is some reason why dad cannot have us on their own, and that, unfortunately, would necessitate, as I am going to order, the contact which will have to be graduated and reintroduced.  The children will need some assistance so that they may come to the conclusion that the father loves them, and the right that they have – which has been recognised by our politicians, and had been recognised many years before by this Court – to know their parents will be encouraged.

10. I recognise it is going to be difficult on the part of the mother.  She has recognised that herself in the witness box.  She has indicated that she will not, perhaps, agree with it, but she will do her job – that is her job.  Mr Hird is a different proposition.  Mr Hird is shocked, and he finds it – and I compliment him for his honesty – he said he will find it exceptionally difficult to support the mother and to support the children seeing the father.  He will have to do it, and I am sure Ms Hird, who gives the impression of being a very strong woman, will be able to do so.  I compliment Mr G’ report – it is a very good report, and as proper, at the end he indicates that it is for me, not for him, to determine whether, in fact, the allegations are true - the allegations that, in fact, C made these statements is true.  The interpretation which has been put upon it by the mother and Mr Hird, with respect, goes too far.  I do not believe on the evidence before me that, (a), I could be convinced that there has been any acceptable evidence of sexual inappropriateness on the part of the father, nor do I consider that there is an unacceptable risk.

11. In those circumstances, I must consider the provisions of section 60CC.  I believe in this case that there should be joint parental responsibility, insofar as the more important matters are concerned.  I do not consider that there should be any form of joint parenting.  I do not believe that that is proper in these circumstances, and the presumption is, of course, overcome.  I believe that the children should live with the mother and that they should have joint parental responsibility.  Insofar as section 60CC is concerned, I am mindful of the fact that it is unnecessary for me to go through each of these items seriatim, but I do refer to the following:  section 66CC(2)(a) is, of course, of great benefit for the children to have a meaningful relationship with both of the children’s parents.  I must emphasise that I consider the mother has, whilst perhaps being – and I am using very gentle words – overprotective of the children, she must take into consideration that it is their right to have a meaningful relationship with their father, and I am sure she will encourage it.

12. Equally, of course, I am sure that Mr Vanstone will now recognise that booze is not that important, insofar as his children are concerned, his children are more important, and he will do everything to ensure that they have a good and proper life.  The need to protect them from physical or psychological harm: - I must say that I was tending, and I think Mr G was, to consider that the mother may be exercising a little bit too much psychological harm on her children by emphasising what she considers is not in their best interests.  I do not criticise her for that, I think that she is endeavouring to the best she can as a mother, but she must take into consideration the evidence which has been put before us, and I believe that she will recognise that with difficulty.

13. The kiddies have a good relationship with both parents.  Perhaps it was better in February than it is now with the father, but we must re-encourage that relationship, and look to the future and go forward.  Taking into consideration the question of Rosa, the order which I will make will, in my opinion, give reasonable and extensive contact to the father, and there is no difficulty in that contact taking place.

14. I have to consider section 60CC(4), which is to take into consideration whether the parties have taken, or failed to take, the opportunity of those matters set out in that section.  I have to take into consideration what has happened since separation, and I have set that out.  The children were doing quite well for a period after separation, and they did quite well when the father had a severe kidney complaint and was ill for a period of some months, where the children had more time with him than they would have had under the order of Howard, and I compliment the parties on that.

15. Overall, I think it is in the best interests of the children that they reside with their mother, and it has not been suggested now – though it was in the original application on the part of the father that he wanted the children to live with him, he recognises that that would be futile and hopeless, and he has now sought an order for contact.  He does not oppose a residence order in favour of the mother, and I will make that order.  Insofar as the orders are concerned, the independent children’s lawyer has put before me a draft, and the father has put one before me which is very similar to the independent children’s lawyer insofar as the alternative is concerned, where the children remain with the mother.  The only concern that I have is where is the changeover to take place for the periods that are set out, particularly in suggested order 4 of the independent children’s lawyer’s – that is the weekend ones.

16. The changeovers, other from those specified here and before me, shall at all times take place at the K Club.  I have considered the draft of the independent children’s lawyer, and I would make those orders, save I will vary 4B, which says at present:

    Each Sunday from 11 am to 5 pm for a period of four weeks.

    I say two.  4B(c), “two”.  I will make 5(a):

    All overnight contact shall not commence until such time as the parties have successfully undergone the therapy referred to in paragraph 18.

    And to that intended effect:

    Upon the completion of the aforesaid therapy, the therapist will forward to the independent children’s lawyer a report, and the independent children’s lawyer has leave to bring the matter on before me.

17. I give liberty to the parties to apply, and a working out of the order generally in case anything blows up.  The independent children’s lawyer be discharged immediately subsequent to the date of the therapy referred to here and before.  I request the Legal Aid Commission to consider an extension of the support for the independent children’s lawyer.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 2 September 2011.

Associate: 

Date:  2 September 2011