Hollier and Spaulding

[2017] FamCA 1130

FAMILY COURT OF AUSTRALIA

HOLLIER & SPAULDING [2017] FamCA 1130

FAMILY LAW – CHILDREN – Interim Orders – Where final hearing is to be adjourned part heard – Where there are serious concerns as to the risk of harm to the children posed by the mother – Where there are concerns the mother may subject the children to grooming behaviours if allowed to have contact with them – Where the mother has a pending criminal appeal which relates to charges of child pornography involving her daughter – Where it is in the best interests of the children to make orders as sought by the Independent Children’s Lawyer – Orders made for the children to live with the father and have no contact with the mother.   

Family Law Act 1975 (Cth) ss 60CC, 65D

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Hollier

RESPONDENT: Ms Spaulding

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Bankstown Family Law

FILE NUMBER: SYC 1616 of 2011

DATE DELIVERED: 7 December 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 4 – 7 December 2017

REPRESENTATION

THE SELF REPRESENTED APPLICANT: Mr Hollier

COUNSEL FOR THE RESPONDENT:	Mr Jauncey
SOLICITOR FOR THE RESPONDENT:	Jack Rigg Solicitors
COUNSEL FOR THE INDPENDENT CHILDREN’S LAWYER:	Mr Schroder

SOLICITOR FOR THE INDEPENDENT CHILDREN”S LAWYER: Legal Aid NSW Bankstown Family Law

Orders

Pending further order,

1. By consent, the father is to have sole parental responsibility for the children.

2. By order of the Court, all orders in relation to the mother spending time with, coming into contact with or communicating with the children be suspended.

3. The mother spend no time with the children, nor communicate with the children by any means.

4. Pursuant to section 68B, the mother be restrained from approaching, contacting or communicating with the children in any manner, including through a third party, including coming within 500 metres of the schools or home of the children, or entering upon any place of employment.

5. The father be restrained from communicating with or approaching the mother by any means, including through a third party, in an effort to vary the orders with respect to the mother’s contact or communication with the children.

6. The Independent Children’s Lawyer, with the assistance, if necessary, of a family consultant at Child Dispute Services, explain the orders to the children at a date, time and place to be fixed in consultation with Child Dispute Services if necessary.

7. The father be restrained from giving any explanation to the children in relation to these orders, or permitting any other person to do so.

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 Hollier & Spaulding 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 PARRAMATTA

FILE NUMBER: SYC 1616 of 2011

Mr Hollier

Applicant

And

Ms Spaulding

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction – Revisiting Interim Orders

1. At the completion of four days of hearing in relation to a parenting dispute concerning three children, the independent children's lawyer seeks to vary current interim orders with respect to those the children who are the subject of these proceedings, being B, who is 16, C who is 13, and D who is 11.

2. The mother also seeks to vary the current interim orders though the variations she seeks are not as significant as those sought by the independent children's lawyer. 

3. The father supports the independent children's lawyer’s proposed variation to the orders. 

4. Each of the parties, therefore, must be taken to have accepted that there has been a change in circumstances such that it is in the children’s best interest to revisit the interim parenting orders.  I am satisfied that there has been such a change in the children’s circumstances for various reasons including that although the orders provide for two of the children to spend time with their mother every two weeks, that has not been happening in recent times.  The father and his wife appear to be making alternate arrangements, in effect, doing the best they can in the circumstances and the mother has expressed significant concern that she is not spending time with or communicating with the children as provided for by the orders. 

5. Most significant, however, is that those interim orders were made at a time when there was only incomplete material before the court, in particular, about the existence and magnitude of a risk posed by the mother to the children. 

6. The court now has the record of interview between the mother and police, some summary notes but not the full JIRT interviews of the children, and also quite a deal of additional material particularly concerning the circumstances of the children and behaviour they are exhibiting and things that they have been saying in the interim, in particular, in recent months. 

7. Although this is somewhat unusual to have a change in interim orders at this stage in the proceedings, as I say, both of the parties agree that it is appropriate to vary those interim orders, and I am satisfied that there has been a sufficient change in the circumstances that cause me to conclude that it’s in the best interests of the children to reconsider their interim arrangements.

Background

1. By way of background, this dispute involves the father who is 41, and the mother who is 39, who married in 2000 and over their course of their 10-year marriage had three children to whom I have referred.

2. The parents separated initially under the same roof, then later the father left the family home and entered into a relationship with a woman who he later married and remains as his wife.  The parents were able to reach agreement about the parenting arrangements following separation and in July 2011 final parenting orders were made with the consent of the parties under which the parents were to equally share parental responsibility for the children and the children were to live with each parent in an equal time arrangement. 

3. On 9 January 2016 the father and his wife were assisting the mother by cleaning and carrying out some repairs at her home at her request when the mother was away with the children.  In the course of cleaning the mother’s home, the father’s wife located some notes written in the mother’s handwriting that described a female child involved in sexual activities. 

4. The father and his wife were extremely concerned about the notes and the mother’s reaction if they confronted her about them, so the father took photographs of the notes and returned them to their location.  The father contacted police initially anonymously to seek some advice in relation to the matter, and after being given that advice, he and his wife provided full details of the matter to police including showing them photographs of the notes. 

5. Police made arrangements to obtain a provisional apprehended domestic violence order (ADVO) against the mother for the protection of the children which was to be served upon her when she returned to her home.  Police also made arrangements for the father to be in attendance when the ADVO was to be served upon the mother so that the children would be transferred into his care after this occurred. 

6. The mother was interviewed by police.  The original notes were retrieved by police and the mother was subsequently charged in relation to the matter.  The creation of these notes and surrounding circumstances is an issue central to concerns about the existence and magnitude of a risk of harm posed by the mother to the children and is a matter to which I will return.

7. Following her arrest on 14 January 2016, the mother was admitted under the Mental Health Act 2007 (NSW) to a mental health unit at a nearby hospital for four days and was then released.

8. On 21 January 2016 an interim ADVO was made by a Local Court for the protection of all of the children against the mother which restrained her from making any contact with the children except through her legal representatives. 

9. From the date of the mother’s arrest, the children have lived in the full-time care of their father.

10. On 20 May 2016, the terms of the interim ADVO were amended and shortly thereafter the father commenced these proceedings. 

11. In June 2016 a final ADVO was made in the Local Court restraining the mother from approaching or contacting the parties’ daughter except through the mother’s legal representative or with the consent of the father pending any order of the Family Court.  The other two children were protected by orders in the standard terms restraining the mother from assaulting, intimidating and stalking the children and the like. 

12. Also in June 2016, the mother who had pleaded guilty to the criminal charge of producing child abuse material was sentenced to a term of imprisonment for 10 months.  The sentence was suspended upon her entering into a good behaviour bond for the same period and accepting the supervision of the probation service. 

13. From the date of her arrest until mid-July 2016 the children had no contact at all with the mother apart from the two boys having supervised telephone conversations on two occasions in May and July. 

14. On 14 July 2016 interim orders were made in these proceedings providing for the two boys to have telephone contact with their mother two nights per week and supervised time with her for two hours on every second weekend. 

15. In addition to these background facts, the following facts have emerged in the course of the trial which are matters not in dispute between the parties.  For the reasons given in the interchange with counsel in the course of this application I am determining the interim proceedings only on those matters which are not in dispute between the parties. 

16. The first matter about which the court now has much more information is that when the mother was arrested she participated in a recorded interview with police.  In that interview, the mother said many things, including the following which could be described as admissions:

    i)That she wrote the letters which describe sexual acts between an adult male and young children. (who I add later became clearly identified as Mr E).

    ii)That she couldn’t remember when the age limit of the people Mr E was fantasising about became younger and younger.

    iii)That she knew Mr E was fixated on her daughter C.

    iv)That it didn’t matter what she wrote, because they (that is C and Mr E) never saw each other.

    v)That there was one occasion when Mr E was in the house and stayed overnight and C came in – (which I take to mean came into the bed) – she was sharing with Mr E, briefly, but she “kicked the child out”.

    vi)That Mr E had a key to her house because he liked to come into the house when she wasn’t there and dress in women’s clothes. 

    vii)That after Mr E had been in the house she would wash everything afterwards and it was all clean.

    viii)That she wrote the letters because she wanted to please Mr E.

    ix)That she could “protect her” and “keep her safe”, which in the context of the question, refers to C, because “they don’t see each other”.

    x)That Mr E’s fantasy was centred on her as a mother.

    xi)That Mr E was referred to as “princess” or by the letter P in the letters and that in this fantasy, he was a young girl. 

17. I now read onto the record some further questions and answers because it is too difficult to summarise the effect of what is said.  They include the following:

    Question 103:

    In one of the letters you referred to taking a pair of underwear and climbing up a ladder.  What ladder are you –

18. Answer:

    Oh he used to like to go into the different bedrooms, so that one will have been he would have – will have asked to – that he wants to be in [C’s] room and she sleeps on the top bunk.  Like I say, I change all the sheets and do everything after he has been, which is what I do – did. 

19. Question:

    Yes.  This – this letter goes on to say to go on, climb up the ladder. 

20. Answer:

    “Yes.” 

21. Question:

    “Of that bed?”  “Yes.” 

22. Answer:

    “That’s what he liked to do.” 

23. Question, “Hump?” 

24. Answer:

    “Liked.” 

25. Question,

    “Hump yourself against the mattress?” 

26. Answer:

    “Yes, that would be right.” 

27. Question 127:

    In one of the notes it says here, “I don’t think you need my help to play dress ups with your doll, but I want you to fuck her at least once in here.”

28. Answer:

    “Mmm.” 

29. Question:

    “What’s that referring to?”

30. Answer:

    He, I think, like lots of people that cross-dress, didn’t really keep too much of his own.  He had clothes of – he’s smaller than me.  He couldn’t fit my clothes very much – clothes of his own at my place.  And then he would use – there was a strap-on and he would put that on a pillow and pretend to have sex with that.  That’s what he would he do, or one – I was never there.  That’s why I assumed he did, and this is what he told me he liked to do.

31. Question:

    “Sorry, what’s the doll referring to?” 

32. Answer:

    Oh, he would have – he would have plumped up a pillow and put bra and knickers and things on it.

33. Question:

    “Right.  And what are you referring here to by the doll.  So - - -”

34. Answer:

    “A pillow.” 

35. Question 139:

    What are the pillows symbolising in this story that you’re referring to? 

36. Answer:

    I’ve – I would have just thought of it as a girl.

37. Question 144:

    You can only say what you know.  So another note goes on to say, “Put on your stockings first.  Feel how they envelope you.  Pulling against your hair and turning your legs elegant, feminine.”  It then goes on to say, “Model for your sister.”

38. Answer:

    “Oh, he used to have - - -”

39. Question:

    “What are you referring there?”  Answer, “He used to have a fantasy of being watched so he – I think he referred to me as Mamma.  So, oh, oh God.  Okay.  So he – I just thought of it.  As another girl, he may have been thinking of [C].”

40. Question 150:

    Yes, so in that letter you believe that it’s a model for your sister of what?  What you wrote here is referring to [C];  is that correct?

41. Answer:

    I think I probably knew that that’s what he would refer to if I wrote that.

42. Question 158: 

    Earlier you did state, so obviously a bit before, when we were referring to a model for your sister, and you said no.

43. Answer:

    Yeah.

44. Question:

    So that it was probably referring to [C].  Is that correct?

45. Answer:

    Not quite.  That’s not who I wrote it referring to be, but I probably was aware that that might be who he took it as.

46. Question 164:

    So again you’re referring to the sister.  Would you be referring to [C] in that regard?

47. Answer:

    I’m not referring to [C] in any regard, but I’m sure I wrote it being aware that that would be what he would want.

48. At question 192, the following question: 

    Again, would you say the reference to that where you’ve said your little sister is watching you, you know, little eyes running wide, so little eyes would be, would you say, referring to a child?

49. Answer:

    Yep.

50. Question 211: 

    Earlier you did say, though, it’s a child like [C].

51. Question 212:

    Would you say that’s correct?

52. Answer:

    No.  I would say that to him it could have been a child like [C].  It’s not.  It’s not my thing.  I’m not anything like that.  I don’t relate it to myself. 

53. Question 222:

    Were the notes ever left in any of the children’s rooms?

54. Answer:

    Yes.

55. Question 222:

    So which did you leave notes in those rooms? 

56. Answer:

    Both, probably.

57. That’s the beginning of that answer.  There’s a long answer after that. 

58. At question 250 the mother was asked about giving keys to various people, including, at this point, to the father’s wife: 

    What was the purpose of giving the key? 

59. Answer: 

    If the kids have forgotten things from one house to the other, that she could go in and pick up whatever she wanted or needed.  [B] also has a key and [C] has her own key as well. 

60. Then answer: 

    [C] I don’t think has used it, but she needs one in preparation for high school.  [B] lets himself in on the afternoons that he’s in my care. 

61. The mother also says that she knew she was providing the letters for Mr E’s sexual gratification.  The letters themselves are in evidence and form part of exhibit 6.  The mother had been cross-examined on some of them, and in particular one which was marked MFIA.  One of the letters included these words: 

    Take a pear, something warm and tasty, and climb up the ladder.  Wrap it over your face and lie face down;  hump yourself against the mattress. 

62. Another wrote – these words were written: 

    You’ve brought your little sister to Mumma’s room for a cuddle, princess.  Couldn’t you girls sleep, poor darlings?  Mumma can make it better.  Take your sister and put her under the covers on your side.  Make sure she is comfy.  Lean in and cup her panties.  Rock your hand a little to remind her how nice it feels.  Good girl.  Now back to the clothes.  Strip – yes – all of it.  I want you to stand there and know how vulnerable you are.  Your sister is watching you.  You know, little eyes growing wide at what she sees.  Inexplicably damp between her legs just from seeing you.  Does the thought make you twitch and grow hard, princess?  Take the blindfold with the toy and climb in next to your sister, snuggle up, and let her feel you teach her.  I want you to wear the blindfold on.  Of the time you make love to her, go by touch and listen to what she wants.  Gently stick it into her and fuck her.  Tease your ass with the toy, pulling your lace aside.  Call for your Mumma and you cum.  I want you to keep playing until you are exhausted.  I want cum on my sheets for later, princess. 

63. There is also evidence from the files from the Department of Family and Community Services.  That includes simply, notes from the JIRT interviews with each child following the mother’s arrest.  I note when D was interviewed, of relevance, he described Mr E as a close friend of his mother’s. 

64. In the course of the JIRT investigation and subsequent enquiries by the Department of Family and Community Services, the summary of which is in the Magellan Report, it came to light that there were also allegations made that the mother had encouraged C to send a Valentine’s Day card to Mr E at the time she was in some sort of relationship with him and to another adult man, Mr F. 

65. I note that Mr F is a man who provided a character reference for the mother in the criminal proceedings in which he wrote the following.  And I’m reading from his reference which forms part of exhibit 6.  This is dated 12 April 2016.  The reference introduces who he is and it goes on to say: 

    Please note:  I am aware of the legal charges that she is facing, and when the circumstances were explained to me I cannot reiterate how completely out of character this behaviour is for [Ms Spaulding].  Truth be told, as a published author myself, I personally cannot understand how someone can be punished for writing fiction, regardless of the subject matter.  Whilst I do believe that the content in question’s topic is in poor taste and terrible, in the end it is all fiction.  It makes me call into question all writers’ freedom to compose works which contain themes such as crime, horror, fantasy, and other mainstream genres. 

66. The father was not challenged on his assertion in his affidavit that Mr F, subsequent to receiving a Valentine’s Day card, sent flowers, presents, and a card to C in response. 

67. It is also not in dispute that there was one occasion on which the child C, the mother, and Mr E were in the same bed and the father and his wife report that C reported feeling some discomfort on this occasion. 

1. I also note that the father, whose cross-examination is complete, was not challenged on his evidence that as recently as October 2015 the mother was seeking permission from him to allow C to join the working group with Mr E, and the mother said “[C] adores [Mr E] and never gets to see him”. 

2. The father’s wife was not challenged on the evidence she gave that she discussed with the mother a very short time prior to the letters being discovered, the state of the mother’s relationship with Mr E. 

3. There has also been quite a bit of evidence about the emotional and psychological state of the children, and although there was initially to be some sort of voir dire about notes that the father’s wife attached to her affidavit about the content of phone calls between the mother and the children and the reaction of the children afterwards, ultimately it was not challenged. 

4. There’s simply insufficient time to summarise the effect of that evidence, but, as I say, I have summarised what I regard as significant evidence of matters which are not in dispute in these proceedings. 

Law and Discussion

1. The relevant principles in relation to parenting and including interim orders are set out in Goode & Goode[1]. 

   [1] (2006) FLC 93-286

2. In applying the law to the facts, the court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) dealing with parenting.

3. Pursuant to section 65D, subject to certain sections which aren’t relevant here, a court may make such parenting order as it thinks proper, and in deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration.

4. Before considering the matters that relate to the best interests of the child in terms of the mother’s time with and communication with the children, I first note that both of the parties agree that it is in the best interests of the children that the father have sole parental responsibility for the children in the interim. 

5. In the case of Deiter v Deiter[2] the Full Court said when making an interim order a court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.  In this matter, it is likely that the interim parenting arrangement under consideration will be in place for about three months when the time will be allocated for the hearing of the balance of the matter. 

   [2] [2011] FamCAFC 82

6. As I indicated earlier, the mother is proposing a similar parenting arrangement to that which is in place at the moment.  However, the changes are that she proposes that the oldest child, B, be at liberty to contact the mother of his own initiative and by such means as he chooses but that any personal contact between them take place in a public place.  The mother proposes similar telephone contact for D to that which he has at the moment, to be initiated by the father, and that physical contact with D occur every second weekend under the supervision of a professional contact service – in other words, under a similar regime as at the moment. 

7. The mother proposes that there be no contact between her and C except in the course of counselling with that child’s current counsellor as determined by that counsellor.  The mother also seeks an order that she be at liberty to send Christmas and birthday presents to the father to be given to the children. 

8. I have indicated that the ICL and the father are seeking that the current orders with respect to the children’s time and communication and contact with the mother be suspended and that there be a restraint in place for the protection of the children against the mother having any contact or communication or time with the children and that the father be restrained from permitting or allowing that to happen other than in accordance with the orders. 

9. As indicated, the Court must make orders that are in the best interests of the children as a result of considering the matters set out in section 60CC of the Act.

10. The primary considerations, which are contained in section 60CC(2), are:

    a)the benefit to the children in having a meaningful relationship of both of the children’s parents and

    b)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the children from harm than the benefit of the children of having a meaningful relationship with both parents.

11. Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is important or significant.  Of note, the section has not been interpreted as creating a presumption that it is in the best interests of children to have a meaningful relationship with both of the parents.  I must consider that if ultimately the Court finds that the mother poses an unacceptable risk of harm to the children which cannot be mitigated, it could well be found that there is no benefit to the children in having a meaningful relationship with her.  That finding is not a matter for today, but that is a finding that may be one that will be invited to be made. 

12. At this stage, in my view, the issue of the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence is the matter to which I absolutely must attach most weight, and in particular, the issue of the need to protect the children from harm from being subjected to psychological abuse and sexual abuse are the matters to which I must attach greatest attention. 

13. The issue of family violence is one that has been raised by the father and which will be dealt with at the final hearing, but it is not being suggested at this interim stage that there is an unacceptable risk in that regard. 

14. In relation to the question of whether there is an unacceptable risk of harm in relation to sexual abuse, I note that although it is not proposed that the child C spend time with her mother, it certainly could be envisaged under the mother’s orders that the child B spend time in her care, albeit in a public place, but also that he have communication with her and that D have telephone communication as well. 

15. Notwithstanding that this telephone communication has been and is proposed to be initiated by the father and that the phone calls are to be monitored by him, which, combined with the fact that the time with B is to occur in a public place – there still remains, in my view, some risk that the mother may engage in albeit subtle conversation with the children that brings with it the risk that she may be subjecting them to some form of grooming in relation to sexual abuse.  While it may be regarded that there is quite a low risk of that happening, given all of the safeguards that are put in place, there is, however, also, in my view, a much greater risk that they will continue to be subjected to or exposed to high levels of conflict between the parents even on the orders that are proposed by the mother. 

16. The extremely detailed notes kept by the father’s wife and her evidence – in fact, it is common ground that on a number of occasions, that she terminates telephone conversations on the basis that the children are becoming distressed and do not want to have those conversations.  She also says that the children particularly, B has expressed to the father’s wife that he would prefer for her to be around during his time with his mother.

17. The only time the children have had, even under the interim orders in place, has been supervised, and yet the children still continue to be subjected, one way or another, to quite intense conflict between the parents and between, at times, the mother and the father’s wife. 

18. Those two women have what has been described as an unusual relationship.  At times, it seems that they can be quite cordial, and yet there is this element of intense competition, and certainly the children have voiced – and it has been well-documented – particularly the younger child – expressions about the father’s wife having stolen or taken the mother from – replaced her, in effect.  It seems that there has been a constant level of dispute between the parents, to the stage that the father ended up terminating the supervised time with the mother, and those are all matters which I must consider. 

19. The other thing, of course, is that a real question arises if it is ultimately found, at the end of the day, that there still remains an unacceptable risk that the children will be subject to or exposed to either sexual abuse or psychological abuse.  One questions what is the purpose of requiring the children, at this stage, to have time with their mother and to communicate with their mother where it may be the case that it is ultimately found that it is not to their benefit. 

20. In terms of the additional considerations, the first matter to consider is the views expressed by the children and any factors relevant to weight to be given to those views.  The views about the interim proposals under consideration are not known.  I would think that having regard to B’s age, that some weight should be attached to his views.  Although Dr G had recommended, on a final basis, that B’s time with his mother should be in accordance with his views, the father’s wife was not challenged on her evidence that currently, B is not comfortable with spending unsupervised time with his mother. 

21. As far as the nature of the relationships of the children with each of the children’s parents are concerned, this is a very complex issue.  I do accept that D in particular presents as having a close relationship to his mother.  However, greater weight must always be attached to the need to protect the children from harm even if it is a close relationship. 

22. This is a matter that, in light of all of the evidence, I will need to be guided by expert evidence in relation to the relationships, and I cannot make any clear findings at this stage. 

23. It appears that all three children have an established relationship with their father, who has been their sole carer for some time and cared for the children in an equal-time arrangement for some years prior to that. 

24. B and C appear to have a comfortable relationship with the father’s wife.  There was some cross-examination directed to some significant challenges and tensions in that relationship, but on balance, looking at all of the reports, it appears that those two children, B and C, do have good relationships with the father’s wife.  As far as the relationship between D and his stepmother is concerned, there certainly have been statements made by the child that could be interpreted as meaning that he does not have a good relationship with her, but equally, those statements could ultimately be more accurately indicating more about his relationship with his mother.  That is a matter that I cannot make the findings on at this stage. 

25. The issue of the extent to which parents have taken or failed to take the opportunity to participate in decision-making, spending time with and communicating with the child and the extent to which each child has fulfilled or failed to fulfil their obligations to maintain the children are not relevant in these applications. 

26. The next consideration that is relevant is the likely effect of any change in the children’s circumstances, and this certainly is the consideration to which the mother’s counsel attached most weight, saying that it is clear or that the children would benefit from there being some stability in their relationships. 

27. The restraints sought by the independent children’s lawyer on the father will mean that however well-intentioned his and his wife’s actions were in making some arrangements for the children to see their mother and communicate with their mother outside the orders, this will stop.  In my view, if orders are made as sought by the independent children’s lawyer and the children do not see their mother, this will reduce the children’s exposure to the ongoing conflict between the parents, which, in my view, is an important matter in these circumstances.  The orders sought by either party will bring about no change for C.

28. D is the child who is most likely to be affected by separation from his mother.  It is likely that he will miss her, but, of course, I cannot make any finding at this stage that his recent deterioration in his behaviour is necessarily as simple as being accounted for by missing his mother.

29. As far as practical difficulty and expense is concerned, there will be some practical difficulty and expense for the children spending time with and communicating with their mother under her proposed orders, because it will raise the issue of the supervising agency.  There have been difficulties with the supervising agency in the past.  Both parents have expressed some dissatisfaction with it, the father in particular, and he cancelled that time.  However, that of itself is not a weighty determination in the event that I found that it were to be in the children’s best interests for orders to be made as the mother proposes;  I would not attach significant weight to that.

30. Although the capacity of each parent to provide for the children’s needs and the attitudes of the children and the responsibilities of parenthood will undoubtedly be significant factors in the final determination, I do not attach great weight to them at this stage, except in relation to one matter.  That is the mother’s behaviour in pursuing a relationship with a man who she knew had deviant sexual fantasies including fantasies that related to sexually abusing children, and incorporated herself into those fantasies, while at around the same time encouraging her daughter, C, to have some form of relationship with the man who she says is the one having those fantasies.  This included encouragement to be a member of his working group and writing him letters.  There was such a relationship that he was referred to within the maternal family as “C’s [Mr E]”.  In my view, this conduct shows a serious abandonment of her responsibility as a parent.  Although it related to that particular child, it must be relevant with respect to the other children, and it is a matter to which I attach significant weight.

31. The issue of family violence, as I have earlier referred to:  there have been allegations, but it is not central to the application at this stage.

32. In terms of other facts or circumstances that I think are relevant, I do attach weight to the matter raised by counsel for the Independent Children’s Lawyer that the parties have agreed that the father is to exercise sole parental responsibility for the children in the interim.  I accept the submission that this places him in an extremely difficult position, where it is now clear that he has before him evidence of the nature of the mother’s offending.  He believes, on his case, that Dr G has underestimated the risk that may be posed by the mother. 

33. It may be that Dr G, particularly where it appears that he has based some of his central opinions as to that risk upon matters of fact, which are matters for the Court to find, not matters for him to find, may agree that he has underestimated that risk.  But certainly the father has been placed in an extremely difficult position where up until now, he has wanted to encourage the children having a relationship with their mother, but has wanted to do that with safety.  Now he, it would appear, takes a different view, in supporting the orders of the Independent Children’s Lawyer.  And it would simply place him in an impossible position to have to facilitate that form of contact, which he does not believe is in the best interests of the children.

34. The other relevant matter is that the mother has still not been finally sentenced on her appeal with respect to her criminal matters.  It is not clear to me what is going to be ultimately put on sentence, what will ultimately be found, and what evidence is going to be relied on.  It is unusual;  in matters where Courts have to determine matters of risk which are also the subject of criminal proceedings, it is normally preferable that those proceedings be complete, and that is another factor I take into account.

35. In coming to a decision about what are in the children’s best interests, I attach particular weight to the need to protect the children from harm.  I reiterate that, although it probably is the case that there are sufficient protections in place even on the mother’s proposed orders to mitigate the risk of sexual harm, there is some risk in relation to that, especially where some form of grooming the children for sexual abuse by another person appears to have taken place by the mother.  It is possible that even in the supervised settings she describes that that could still occur on a subtle level.  As I say, there is also the issue of what the purpose of having this contact is, where the question still arises as to whether there will be found to be a benefit to the children in having a meaningful relationship with their mother.

36. I also attach weight, for the reasons given, to the likely effect upon the children of the change in circumstances, and, in particular, the need for these children to be protected from the intense conflict between their parents, which appears to have still continued to go on even under the very limited orders that have been in place.

37. I also attach weight particularly to the issue of the attitude of the mother to the responsibilities of parenthood displayed in her actions.

38. In all of those circumstances, I am of the view that it is in the best interests of the children for the orders to be made as proposed by the Independent Children’s Lawyer, and those orders will be made until further order.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 7 December 2017.

Legal Associate:

Date:  29 January 2018