J and J - [2001] FMCAfam 91

FEDERAL MAGISTRATES COURT OF AUSTRALIA

J & J

[2001] FMCA fam 91

FAMILY LAW – Residence – Contact – Allegations of violence on the part of the father – Possibility of a reconciliation between the parties – Family Law Act Section 43.

Applicant:

P A J

Respondent:

L M EJ

File No:

ZC 2114 of 2000

Delivered on:

17 July 2001

Delivered at:

Canberra

Hearing Dates:

8, 9 & 10 May 2001

Judgment of:

Brewster FM

REPRESENTATION

Counsel for the Applicant:

Mr Arthur

Solicitors for the Applicant:

David Lardner, Solicitor

Counsel for the Respondent:

Mr McKeown

Solicitors for the Respondent:

Smyth Burnett Bowden

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

ZC 2114 of 2001

P A J

Applicant

And

L M EJ

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern an application by P A J, who I will call the father, in relation to the two children of his relationship with the respondent, L M E J, who I will call the mother, namely B W J born

30 October 1992 and therefore aged 8, and S A J born 8 February 1995 and therefore aged 6.

Background

The father is 29 years and the mother 41. They commenced living together in 1989 and married on 24 November 1990.
The parties separated on 3 June 2000. This was because on that day the mother sought and obtained a number of orders from the ACT Magistrates Court under the Domestic Violence Act. One of the orders excluded the father from the matrimonial home. These orders were made ex parte and on the basis of allegations by the mother that, shortly before that date, the father had behaved violently towards the child S and towards her. She said in her application that on 2 June the father “pushed our son in the back very hard. I said to him “don’t and (he) then punched me in the stomach. Approximately one month ago (he) grabbed my arm (left) and bit my wrist. He then punched me in the shoulder.”
The proceedings in the ACT Magistrates Court did not proceed to any hearing of the allegations made by the mother but were settled on the basis that the father gave undertakings to the Court including an undertaking to remain away from the home. This occurred on 5 July 2000. The father did not see the children between the date he was excluded from the home and the hearing before me. As a result of orders made by me some supervised contact was introduced.
The father filed his application on 2 August 2000. That application sought both final and interim orders, that the children reside with him. This was not pursued on an interim basis. Shortly before the hearing he filed a Minutes of Orders Sought which did not seek either residence or contact. These read as follows:
(1)All existing Orders be discharged.
(2)The parties retain joint responsibility for the long term care, welfare and development of the two children of the marriage, namely, B W J, born 30 October 1992, and S A J, born
8 February 1995, (“the children”).
(3)The parties retain joint responsibility for the short term care, welfare and development of the children.
(4)The parties undertake such counselling and or family therapy as may be recommended by the Director of Court Counselling and for the parties to accept such reasonable directions as may be so given.
(5)The parties forthwith take all such steps, sign all such documents and give all such directions as may be necessary to withdraw the Minute of Undertakings provided by the Magistrates Court, Canberra, dated 5 July 2000, being Proceedings Number DV00/392, between the parties herein.
(6)Such further Order or Orders as this Honourable Court thinks appropriate.
The basis on which these orders were sought was that the father believed that, left to their own devices, he and the mother would reconcile. There is some basis for his entertaining these hopes and this will be considered later in the judgment. Nevertheless, at the hearing of the matter, the father accepted the reality that the Court was unlikely to make orders of the type he sought and in particular would be reluctant to make an order akin to an anti-suit injunction as sought in Order 5. His application at the hearing was that the children reside with him three days a week and with the mother the rest of the time.

The allegations of violence

In deciding what orders should be made it will be necessary to make an assessment as to the allegations of violence made by the mother.
The mother in her first affidavit alleged that throughout the marriage the father would punch her in the arm and bite her, causing bruising. She alleged that at one stage he punched her in the face, causing her to have a black eye. She also alleges a number of instances of violence with the children. These are as follows:
b)In the summer of 1997 they were preparing to leave their home and B was taking longer than usual to get ready. She says that the father was angry with B because of his slowness and punched him in the arm and pushed him in the back. She also alleges that the father said words to the effect, “Hurry up B, get out of the fucking way”;
c)She recounted an instance in 1999 when she was in the toilet and heard a bang coming from the front lounge room. She ran into the lounge room and asked the husband, “What happened?” to which he replied, “B tripped over.” She said that B was sprawled on the ground and had blood coming from his lip and was crying. She says that B said to her later in the day, “Daddy pushed me.” She says that when she raised this with the father he said words to the effect, “Who do you believe, me or B?” She says that she noted a small hole in the lounge room wall the next morning and photographed this hole. The photograph is annexed to her first affidavit;
d)She also annexes to her affidavit a photograph of bruising to her arm. This was said to have occurred in an incident in May 2000. I will discuss this further in the judgment;
e)The incident that led to her obtaining orders under the Domestic Violence Act was said to have occurred on 2 June 2000. She said that S was playing in a toy pedal car when the father pushed him violently in the back forcing his chest against the steering wheel. She said that S said words to the effect, “Daddy don’t do that” and when she said to the father, “Don’t do that to S”, he came up to her, hit her and then bit her.
The mother took the children to see a paediatrician at the Child Risk Assessment Unit, Dr J B, on 9 June 2000. Dr B prepared a report and swore an affidavit in these proceedings. Dr B said that the mother told her that the husband was “not really violent” but came from a “bad background”. The mother told her that when the children were young things were fine, but when the boys were three and four years old, the husband hit them gently while “mucking around”. She said that he “got carried away” and hurt the children “by thumping them hard”. She reported to Dr B that he didn’t bruise them, but they would cry and say “Daddy hurt me.” Dr B further said, and this is of significance, that the mother told her that the father only hurt the children in the context of play. Dr B noted that the mother’s presentation was concerning in that her affect in the context of the history she related was incongruent. She appeared happy while discussing distressing events. Dr B also noted scarring on B’s back and noted that the mother’s mother, J J, told her that the children had told her that they were caused by their father scratching them.
B was interviewed by Police on 6 July 2000. It is apparent that he knew that it was a police officer who was speaking to him and he knew that the reason for this was so that he could tell them what his father had done. In the light of the view I take as to the contents of the interview, the degree to which this may have compromised the integrity of any allegations made by B does not need to be considered. B first of all spoke of his father hitting him, of hurting S and his mother and messing the bed up. He said that in the course of this incident his mother hid under the table and that S was hiding under his bed and that the father was looking for them. This account was quite disjointed and does not appear to be related to any allegations made by the mother. He also made allegations of his father pushing him and said that in this incident he lost a tooth. It is apparent that this is the same incident as related by the mother which involved B either falling or being pushed by his father.
This interview was recorded on video and I have watched the tape of it. I have also read a transcript of the interview. I found the account given by B quite confusing. He said that the father pushed him “with his butt.” He said that he, that is B, “pushed him back.” He said that he did this because his father was “always hurting me. Not buying me new shoes like these.” (Apparently he had on some new shoes bought for him by his maternal grandmother). He said that S was pushed also. In the circumstances, I am unable to place any significant weight on what B has said in that interview.
The father was interviewed by Police on 25 October 2000. The Police put to him that he had assaulted B on at least three occasions. The first of these was said to be in the summer of 1997 when he punched B in the arm. The second was said to have occurred in November 1999 when B vomited on the toilet floor. It was put to the father that he was overheard to say to B, “Get in there you fucking bastard, then clean it up” and that he threw B into the bathroom. The third was the pushing or falling incident in the lounge room. The information that founded these allegations presumably came from the mother.
The father denied that the first incident ever occurred. He did relate an incident which he apparently believed may have been the source of the allegation, which concerned an argument between the two boys over a toy. He denied that there was any physical contact between himself and B.
He also denied swearing at B as alleged in the second incident.
In the interview he also gave his version of the “pushing” incident and he included this explanation in his affidavit and was cross-examined on it. It is unnecessary to go into details. He said that the boys were jumping on the couch and were asked to get off. They did so, but that B then climbed back on the couch and was standing on the back of the couch when he fell off. The father attempted to grab him as he fell. B hit his head against the wall.
The father in his evidence denied violence towards the children or the mother. Insofar as the scars on B observed by Dr B are concerned, he says they were caused by a fall from a bus and a fall against a paling fence. He also gave evidence of the boys fighting which may have been a contributing factor. I thought his evidence in this respect seemed credible. Insofar as the incident in the toy car is concerned, he said that he pushed the car in which S was “driving” which ran against a wall and S hit his stomach on the steering wheel.
The father denied that he had a problem with his temper, although he has been attending an anger management course. This however was not because he felt he needed such a course, but because it was recommended by Mr N, a psychologist whom he consulted.
The mother gave evidence and was cross-examined. At the outset it must be said that one has to be cautious in drawing firm conclusions from her evidence. She suffers some intellectual retardation and this was apparent from the way she gave evidence. Had she made concessions or exhibited confusion as a result of vigorous cross-examination or given a version in response to leading or shaping questions I would have had to discount her testimony. However, she was cross-examined quietly and politely and leading or shaping questions were generally avoided. In the circumstances, I feel I am able to draw some conclusions from her evidence. These are as follows.
She recounted an incident when she says the father bit her, which occurred early in the marriage. I thought there may be some truth in this allegation although the context in which it might have occurred is uncertain.
She gave evidence about a biting incident that occurred in May 2000. This resulted in the bruises to her arm which were photographed. It became apparent however that this biting did not arise out of an argument or as a result of anger on the part of the father but occurred during the course of some “horseplay” between the parties.
She gave several accounts of the incident involving the toy car which led to the order being made under the Domestic Violence Act. At no time did she recount any violence to her until, after she had recounted the events carefully, and on a number of occasions without referring to any such violence, it was pointed out to her that in her affidavit she alleged such violence. I think it is unlikely that the account set out in her affidavit is correct. I think the most likely scenario was that any injury to S was not occasioned by the deliberate act committed in anger by the father. Rather I believe it may have been a result of over-exuberance or carelessness on his part. The mother’s evidence was that the injury to S occurred when the father came up to him, said “Hi S” and pushed him in the back. This was clearly done with the purpose of pushing the car forward and not in any attempt to hurt S.
In general I accept the evidence of the father. He did not give the impression at all of being a violent man in giving evidence. I appreciate the limitations a judicial officer has in making assessments of a person’s character from evidence in the witness box and I do not accept the whole of his evidence uncritically. I have no doubt however that he loves his wife and loves his children. I suspect that he may have lost his temper and been heavy-handed at times with his children. In some respects this is understandable. The children seem to present a problem, especially B. From all accounts, B is a child who would try the patience of a saint. He has a problem with projectile vomiting and can vomit at will. He sometimes would use this as an attention gaining device. For example, if S had a toy which B wanted, he would simply vomit to gain attention for himself. He also had a problem with bed wetting. Each child can be violent to the other. This must have been extremely stressful for both parties and I suspect that the father’s reaction, whilst probably not violent, may have been impetuous and heavy-handed. In addition there were other stressors involved. I accept the evidence that the mother finds it difficult to manage the domestic duties and the father would often come home from a long day’s work to be confronted with a chaotic household. I accept that the injury suffered by S in the car was not a result of any angry or intentional act on the part of the father. I accept his explanation in relation to the incident involving the fall from the couch.
Whilst it is impossible to be certain about this I suspect that what has occurred in relation to the mother’s seeking a domestic violence order and all that followed came about through the actions of the mother’s mother, J J. Whilst Ms J denied this I have no doubt that she has, and always has had, a poor opinion of the father. I accept that she was opposed to her daughter marrying him. An example of her attitude is found in the affidavit of the father’s mother, B F. Ms F was cross examined on her affidavit and I accept her as a witness of truth. Ms F stated that in June 2000 she had a conversation with the mother on the telephone when Ms J came on the line and said words to the effect, “Get off this line”. Ms F said that she responded, “I just wanted to know that Land the boys were allright” to which Ms J replied, “I’ve told her she has to choose between P and the boys. If she chooses P I’ll ensure that they are put in the care of Family Services. If you don’t get off this line, I’ll have you and P arrested.”
It was Ms J who arranged for the bruising on the mother to be photographed in May 2000. I think it likely that Ms J initiated this and I suspect she asked the mother to report any further incidents to her. I suspect that the mother reported the incident involving the car and that, possibly with the encouragement of Ms J, added the account of violence towards herself. Ms J was thereafter involved in approaching the Legal Aid Office to obtain an order under the Domestic Violence Act and approaching Dr B. It appears that at no stage did the mother give instructions to her solicitor without Ms J being present in the room. The flavour of the affidavits sworn by the mother does not reflect the flavour of the oral evidence given by her nor the things she told Mr N in an interview she had with him and I have little doubt that the contents of those affidavits were heavily influenced by the presence of Ms J when instructions for their preparation was being given.
I believe this family needed intervention in the middle of last year. Both parents have some intellectual deficits and they were trying to bring up two difficult children. They needed help. It is most unfortunate that the help that was given was predicated on the assumption that the father was guilty of domestic violence and needed to be kept away from the mother and his children.
Ms F relates a conversation with the mother on 6 April 2001. She said she was telephoned by the mother. Ms F is very fond of the mother and it appears that these feelings may be reciprocated. She says that the mother sounded “very down”. She said that she said to the mother, “Darling, what’s the matter, you don’t sound well.” The mother replied, “I am sad. I have been to Fiona (her solicitor). I have been told that I have to pick between P and the boys. I have to divorce P”. Ms F said that she said to the mother, “You don’t have to divorce P. Who’s been telling you that?” to which the mother replied, “It was Welfare and Mum. They say that if I don’t divorce P they will take the boys from me.” Ms F says that she responded, “Do you want to divorce P?” to which the mother replied, “No, I don’t. I love him but I have got no choice.”
As indicated above the mother was interviewed by Mr N. He reports that the mother said that she was “very confused” over the matter. She told Mr N that she did not expect the legal process to take the course that it did, and that it was her intention to get her husband to attend counselling and to learn to calm down. She told Mr N that her mother assisted her in obtaining the court order and then contacting the Child at Risk Unit and through them Family Services became involved. She told Mr N that Family Services had advised her that if she reconciled with the father they would take the children from her and that her mother kept reminding her of this. It should also be noted that she told Mr N that she thought her mother would be angry because she was speaking to him (Mr N).
The mother in evidence in chief denied that she had the conversation alleged by Ms F on 6 April 2001. In cross-examination, however, she conceded that she had indeed said these things to Ms F but claimed that she didn’t mean what she had said. However, I am satisfied that the mother still does love the father and would welcome a reconciliation. I am satisfied that it is only the threat that the children will be taken from her that prevents this.

The father’s application

At the outset, I reject the father’s application for a shared residence arrangement. I do not have to dilate on the reasons for this as in any event, it is quite impractical. The father lives some distance from the mother and does not have a licence to drive. The arrangement would involve an inordinate amount of travel by bus for the purpose of attending school. The real issue is contact by the father with the children. This was in effect conceded by his counsel who did not push the shared residence proposal.

The law

In determining what contact would be appropriate, I am required to treat the best interests of the children as the paramount consideration. Section 68F(2) of the Family Law Act sets out the matters that I am required to consider when making a determination as to what is in the children’s best interests.
The first matter that I am required to take into account is any wishes expressed by the children and any factors such as their maturity or level of understanding that are relevant to the weight to be given to such wishes.
The children’s wishes have not been formally ascertained by any third party. When the mother spoke to Mr N she said that the children “always say they love their dad and they wish daddy was here.” Ms F gave evidence that in telephone conversations she has had with the children, they have expressed a wish to see their father, B saying to her words to the effect that, “Have you got Daddy with you? I want to talk to him. Can you bring Daddy home?” and S saying words to the effect that, “I want to talk to Daddy. I love Daddy. Bring Daddy home at one o’clock in the purple car.”
I think it likely that the children are missing their father and would welcome his being re-introduced into their lives.
The next matter I am required to address is the nature of the relationship of the children with the parents and with other persons.
I have no doubt the children have a close and loving relationship with their mother. I think it likely that the same situation applied in relation to their father before he was excluded from their home.
The next matter I am required to consider is the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child or other person with whom they have been living.
The second part of this has no application. In relation to separation from their parents, there is no suggestion that they should be separated from their mother, at least not as a result of any order I might make. They have been separated from their father for a long period of time and I think this is most unfortunate. I believe it would be in the children’s best interests if they could continue to know and have a relationship with their father.
The next matter I am required to consider is the practical difficulty and expense of the children having contact with a parent, and whether that difficulty or expense will substantially affect their rights to maintain personal relations and direct contact with both parents on a regular basis. Whilst there are some logistical problems with contact, in that neither party drives a motor vehicle, this is not really a significant factor in this case.
The next matter I am required to consider is the capacity of each parent, or any other person, to provide for the needs of the children, including emotional and intellectual needs.
Each parent has some deficiencies in this area. I think it likely that the father has lost his temper in the past with the children and on other occasions may have hurt them through over-exuberance. Nevertheless, I believe he would have the capacity to assist in meeting their emotional needs and is a reasonably competent parent in other respects. In one area he provides an excellent role model. He is illiterate and is unable to drive a motor vehicle. Nevertheless he holds down regular employment. This involves a great deal of travelling by bus. His determination not to let his disabilities prevent him from working and his work ethic are admirable.
The next matter I am required to consider is the children’s maturity, sex and background and any other characteristics of the children I think are relevant. This subsection has no application in this case.
Subsection 68F(2)(g) requires me to consider the need to protect the children from physical or psychological harm caused or that may be caused by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person. In a similar vein, subsection 68F(2)(i) requires the Court to consider any family violence involving the children or a member of their family, subsection 68F(2)(j) refers to any family violence order that applies to a child or a member of the child’s family and Section 68K requires the Court, to the extent that it is possible to do so consistently with a child’s best interests being of paramount consideration, to ensure that any order it makes is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.
Whilst there is no family violence order in effect I have regard to the undertakings given by the father to the ACT Magistrates Court.
As I have indicated before, I think it unlikely any serious violence was inflicted by the father on the mother or on the children. This is not an end to the matter. If I am to make an order that the father have contact with the children, or at any rate unsupervised contact, I must consider not only whether there has been any violence, but also whether, even though I may not be satisfied that such violence has occurred, I may be wrong in my assessment and that in all the circumstances there is an unacceptable risk that such violence may have occurred and therefor may in the future occur.
This involves comparing the positive benefits that might be obtained by the father having contact with the children against the risks that such contact involves. I believe there would be positive benefits in the children seeing their father. I do not believe there is an unacceptable risk of violence towards them. Even if their father has reacted inappropriately in the past, I am certain that he has suffered greatly from being deprived of contact with his children and confident that he would ensure that he did not act in any way which might compromise that contact in the future. Moreover, the orders I propose to make will provide some protection for the children in the future.
Subsection 68(2)(h) requires the Court to consider the attitude to the children and to the responsibilities of parenthood demonstrated by each of their parents.
There is no criticism of the mother in this respect and I am satisfied that she has, to the best of her abilities, attempted to discharge her responsibilities as a parent. Whilst her actions in preventing contact between the children and the father were inappropriate I am satisfied that she did not do this of her own volition.
Similarly, subject to the comments that I have made about him, I accept that the father has to the best of his ability attempted to discharge his responsibilities as a parent.
The final matter that I am required to take account of is whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children.
If I make an order that the father have contact with the children there is a possibility of further litigation. As I have indicated above, I think it is quite possible that the mother, under the influence in turn of her mother, has been over-vigilant in relation to monitoring the father’s interaction with the children and has permitted what was an innocent if unfortunate incident in relation to the toy car to be blown out of all proportion. It is possible that this type of thing could happen in the future. Nevertheless, that is not a reason for depriving the children of the benefit of seeing and having a relationship with their father.

Conclusion

As already indicated, I believe that this case has had an unfortunate history. It commenced with exaggerated and untested allegations made to the ACT Magistrates Court and from then on every professional who has been involved appears to have started from the assumption that the father was a violent man.
As indicated above, I believe the mother was caught up somewhat unwillingly in the tide of events. I believe she loves the father. I have no doubt that he loves her. The ideal scenario as far as the children are concerned would be if a reconciliation could be accomplished between the parents. I believe that the mother would wish this to occur but is deterred from taking any steps to accomplish this by the threat that the children would be removed if she did. I think it would be unfortunate in the extreme if the authorities were to take this action. I do not believe they would do so. I would hope that Family Services, if it contemplated such a step, would have regard to the findings I have made in this judgment. Unless some further event occurs, it would be quite wrong in my opinion for Family Services to have the children summarily removed pursuant to Section 73 of the Children’s Services Act. If it instituted proceedings for a court order to have the children removed, I would assume that the Children’s Court would, in accordance with the usual principles of comity, have some regard to this judgment. In any event, even if the Children’s Court came to a view contrary to mine, I have no doubt that the mother would be given the option of severing the relationship with the father before the children were removed from her care.
In my opinion, if the mother wishes to explore a reconciliation with the father, she should be permitted to do so without interference from third parties.
Section 43 of the Family Law Act provides as follows:
“The Family Court shall, in the exercise of its jurisdiction under this Act, and any other Court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a)The need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b)The need to give the widest possible protection and assistance to the family as the natural and fundamental group/unit of society, particularly while it is responsible for the care and education of dependant children;
(c)The need to protect the rights of children and to promote their welfare;
(ca)The need to ensure safety from family violence; and
(d)The means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and their children.”
I am conscious of the need to protect the children and their mother from family violence. Nevertheless I do not believe there is an unacceptable risk of such violence and as indicated above, I believe that the children’s welfare would be best promoted if the parties were free to effect a reconciliation and if they were brought up in a stable, caring and loving household by both their father and their mother. I believe that subsections (a) (b) and (d) of Section 43 are apposite in this case.
Having regard to this section I believe that it would be appropriate if the parties attended counselling with a view to improving their relationship and, if it is their genuine wish to do so, to reconcile. I would normally invite parties to attend counselling rather than order them to do so, but in this case I am concerned that the mother might be dissuaded from doing so. I propose to order the parties to attend counselling.
I am concerned that the mother should not attend counselling under the shadow of a fear that any reconciliation would result in the children being removed from her care. I have no power to make orders with respect to Family Services, and I would not wish to direct its officers as to how to do their duty even if I had. However, in my opinion it would be quite inappropriate for them to intervene and remove the children if a reconciliation occurred. If they are minded to do so then in my opinion it should be done by seeking a court order under the Children’s Services Act and not through a peremptory removal. If however they are minded to accept the findings I have made it would be best if the mother heard directly from them to this effect and be told that they would not interfere and take the children from her should she reconcile with the father, unless some further incident occurred justifying that course. In my opinion she should be assured that if any such incident occurred she would be given the option of severing her relationship with the father to prevent the children being taken from her. I invite the father to provide Family Services with a copy of this judgment so that consideration might be given to this.
Irrespective of whether or not a reconciliation occurs the children should have the opportunity to know and have the best possible relationship with their father. Accordingly I propose to make orders in relation to contact between the children and their father.

Orders

As indicated previously, I have made an order that the father have supervised contact with the children. This was to take place at the Marymead Contact Changeover Centre and by now this should have occurred a number of times.
I propose to extend contact at this stage and to remove the supervision of Marymead. For more abundant caution however, I propose that there be some further supervision for a period of time. I propose to order the father to attend a parenting course. This will assist in enabling him to cope with the stresses of parenthood and teach him strategies to prevent any inappropriate reactions to the behaviour of the children. Until he completes that course I would propose that contact occur at his mother’s home and in the presence of his mother. I raised this matter with Ms F and she assured me that, if I made an order that she supervise contact, she would be meticulous in doing so. I accept her assurances. By this I do not mean that Ms F should be present and keeping an eye on the father every minute of the day but that, except for brief periods, such as for example for the purpose of going to the local shop, she should be with him or in the same house as him.
After the father completes the parenting course, and provides the mother with evidence of having done so, I propose that contact be unsupervised.
I propose to order alternate weekend contact, initially from Saturday morning to Sunday evening but in time extending to encompass the Friday night. I propose to order holiday contact. I have it in mind that this should be for the last four days of the next school holidays, for one week in the Christmas holidays (to include Christmas Day given that the father did not have them last Christmas) and thereafter for one half of all holidays. I would propose that contact alternate between the first and second halves with it being in the second half of 2002 so that Christmas is shared evenly.
As indicated above I propose to make an order that the parties attend counselling. It might be useful if the counsellor involved were given a copy of this judgment.
I will not formally take these orders out until fourteen days have elapsed after delivery of judgment. This is to give the parties the opportunity to suggest any mechanical additions or variations consistent with the tenor of this judgment. For example they may prefer Christmas day to be shared and make provision for special days such as birthdays etc. If either party has any such suggestions a letter should be sent to my associate with a copy to the other side indicating what they are. I will then re-list the matter unless there is agreement between the parties.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Brewster FM

Associate:

Date: