Lane and Arthurs

[2006] FamCA 243

[2006] FamCA 243

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY  No. NCF554 of 2004

BETWEEN:

LANE

Father

- and -

ARTHURS

Mother

REASONS FOR JUDGMENT

BEFORE:                  The Honourable Justice Moore
HEARD:  6 April 2006
JUDGMENT:           11 April 2006

APPEARANCES:     Mr Whelan of Slater & Gordon, Solicitors, DX 1163 Sydney, appeared for the applicant/respondent father.

The applicant/respondent mother, appeared on her own behalf.

Ms O’Rourke, instructed by the Legal Aid Commission of NSW, DX 7911 Newcastle, appeared as the children’s representative.

CATCHWORDS:
FAMILY LAW – CHILDREN - Finalisation of parenting proceedings where interim and provisional orders had been made – mother unable or unwilling to comply with provisional nature of orders – residence to father – mother’s application for stay pending her appeal – stay application dismissed – unable to conclude current circumstances of the children satisfactory. 

Proceedings

1. There are two applications for determination and both arise out of orders [as per schedule for convenience] made on 28 February upon the delivery of Reasons for Judgment which need to be read in conjunction with these Reasons. 

1. Those orders were provisional and interim in nature: so far as T and L are concerned, they were to live with their mother provided their contact with their father was re-instituted according to the regime stipulated; G was to continue living with her mother and, as was made clear, contact would remain at her instigation. 

1. Ms Arthurs has since appealed and applied for a stay of those orders pending appeal.  Mr Lane has filed a cross-appeal.  As the contact has not occurred as ordered, Mr Lane has also brought an application seeking orders that would advance to the position foreshadowed; namely, a residence order in his favour.  That is resisted by Ms Arthurs.  Both the residence and stay applications have been heard together and Ms Arthurs’ stay application is to extend to any orders made here on the residence application. 

1. In the meantime, the children’s representative filed an application which was heard on 17 March.  Ms Arthurs advised the Court she would not be participating in those proceedings and in fact she did not.  Orders were made according to some but not all of the orders sought in that application.  They are in these terms:

   ‘1.Until further order the mother is restrained and an injunction is granted restraining her from taking either or both of the children [T] born … 1993 and [L] born …1997 to a counsellor or permitting either or both of the children to be counselled. 

   2.The supervising counsellor appointed by orders made 28 February 2006 is to provide a report urgently to the Court as to -

   (i)        her involvement in the matter since delivery of judgment;

   (ii)her assessment of the children’s response to the ordered arrangement and their contact with their father;

   (iii)identify and assess any developments that have impacted upon the children since the delivery of judgment;

   (iv)whether the children would benefit from any counselling and if so directed to what issue and by whom should that counselling be conducted; and

   (v)       any other matter the supervising counsellor considers relevant. 

   3.Until further order, the orders of 28 February 2006 providing for contact are suspended. 

   4.The parties are at liberty to attend the hearing of the mother’s stay application on Friday 24 March by telephone upon advising the listing co-ordinator in Newcastle of their telephone number.

1. The child representative does not press that application in so far as it did not result in orders. 

Evidence

1. In Mr Lane’s case the following documents and evidence was relied upon:

   ·   Notice of Cross Appeal filed 27 March 2006;

   ·   Application filed 21 March 2006;

   ·   Affidavit (his) sworn 17 March 2006;

   ·   Affidavit AL sworn 22 March 2006;

   ·   Affidavit JP sworn 22 March 2006;

   ·   Affidavit JR sworn 22 March 2006;

   ·   Affidavit LP sworn 20 March 2006.

1. He gave further evidence at the hearing and was cross-examined.  The only witness required for cross-examination was AL and that was limited to whether she had heard an exchange between Mr Lane and T in the car on 4 March (she did not).  None of the other witnesses were required. 

1. Ms Arthurs relied upon the following documents and affidavits:

   ·   Notice of Appeal filed 9 March 2006;

   ·   Application for Stay filed 8 March 2006;

   ·   Affidavit (hers) 8 March 2006; and

   ·   Affidavit (hers) filed 30 March 2006. 

1. She gave further evidence at the hearing. 

1. Also in evidence was the report [exhibit 1] of the appointed supervising counsellor, Ms P, according to the orders of 17 March.  She gave further evidence at the hearing. 

Events after judgment

1. Essentially what has happened is that the children saw their father, according to directions, in the mediation rooms at the Court after judgment was delivered on 28 February, they spent the day with their father on 4 March as provided by the orders, but contact did not occur as foreshadowed during the following weekend of 10-12 March.  After the events of Friday 10 March the children’s representative brought the application to which reference was made earlier, including an application to suspend the contact until further order.  Having regard to the circumstances of the children at the time, and more particularly to the absence at that point of any report from the supervising counsellor, that order was made temporarily. 

1. I am satisfied the report of the supervising counsellor gives an objective and reliable account of relevant events since the delivery of judgment.  That should be recorded in sufficient detail so as to provide a more complete picture of the circumstances than would be possible by a summary.  The chronology of events can be supplemented by other evidence, in so far as it is relevant, to set the factual background.  Findings about that follow. 

   (a)         Ms P said the children appeared to be relaxed and happy [T seemed a little relieved] as they waited in the child care rooms for their father.  G opted not to see Mr Lane, so she left.  Ms P describes T and L’s reunion with their father in these passages of her report:

   ‘7.When the father arrived on the Counselling floor with a friend and the children were told he was there, [T] and [L] asked whether the writer would sit between them while they saw their father.  They were told that this was not possible.  The children asked whether their father was going to apologise to them.  They were told that this would not happen but they were encouraged to express to him their fear that he might be angry with them.

   8.When [the father] walked in, the children appeared reserved but not distressed. The conversation was stilted, initially, with [the father] making comments such as how much the children had grown since he had last seen them.  They relaxed very quickly, however, especially [T].  They then began to talk quickly and at length to their father, each trying to get a word in around the other but with [T] managing to be more dominant.  Except for two occasions when [L] called [the father] "[J]" the children addressed him as "Papa".

   9.Both girls were anxious to know whether he had moved houses and were very relieved that he was still living in the house that they remembered and which they said that they liked.  Surprisingly, after two years, [L] remembered quite a lot about it.  They talked of how their rooms looked now and various soft toys they had left there. Both were affectionately critical of their father for mixing up the names of two of these toys.

   10.They talked with enthusiasm about where they would go to eat during their weekend with their father, they were positive about a trip to Melbourne during the Easter Holiday and about a trip to Mauritius at Christmas time.

   11.They all became more and more relaxed as they spent time together. Statements such as "We can't wait till Saturday" were made by them during the period that they were together and this was seen very clearly by the writer, the Manager Mediation and the counsellor who subsequently saw the children for the latter part of the contact, Ms [L].  The children were highly excited at this reunion.  It was very clear that the children's response to the court ordered arrangements was a positive one.

   12.They were encouraged, early in the session, to tell their father that they had been concerned he might be angry with them. [T] twice told him this had been a concern to her.  He replied, very kindly, that he was not.  The third time when she asked him she added that she had thought that he might be angry because of what they had said and added, very contritely, "I'm sorry."  He very affectionately reaffirmed that he was not angry with them and added that all this was not their fault.  The writer at one stage shortly after this thought [L] said "Have you changed?" but Mr Lane, in later interview, said that he was worried that [T] had asked him if he had changed, concerned that that might imply that she really believed that he had hurt them.  (He found it very hard to comprehend, when it was explained, that after multiple interviews over a long period of time, the children might believe they had been assaulted despite any reality to the contrary.  He assumed the children would know they had not been assaulted by him.)  The girls had, prior to the session, wondered if their father had physically changed, whether he was thinner of fatter.  One of them told him he looked older.’

   (b)         While this was occurring there were other developments in the precincts of the Court.  Ms Arthurs makes no bones about the fact that she was angry and upset by the judgment and readily concedes she verbally abused people.  To a friend who had accompanied Mr Lane, Mr JR, she yelled ‘I hope you’re proud of yourself for supporting a paedophile’ [G was with her] and she abused Ms C and Ms O’Rourke [G was also in a position to hear this]. 

(c)         Ms P takes up the events about 1 ½ hours after the children had been with their father.  Mediators had become aware of Ms Arthurs loudly expressing negative views about the judgment and yelling abuse and the decision was taken to ask her to return to talk about appropriate behaviour in front of the children.  When seen by Ms P and the Mediation Manager, Ms Arthurs was assessed as being in a ‘very distressed and labile state’.  She said she was very unhappy with the judgment.  As she explained it, when they heard about the date it would be delivered, they had been very relieved they had not been told to bring the children and interpreted this as meaning ‘we had won’.  They told the children they would not be going to live with their father; therefore, they were quite shocked when they had been asked on short notice to bring the children to the Court on the day judgment would be handed down.  They had to tell the children they might have to live with their father.  That was why she had been trying to reassure them when they arrived at the Court.  She described the judgment as ‘blackmail’.  Ms P’s report continues:

‘18.….When there was some attempt to reality test with Ms Arthurs by pointing out that, as the primary residence of the children had been confirmed to her, the judgement had been very favourable to her, she reacted very adversely.  Indeed when challenged in any way at all about her attitude, in that meeting, she reacted very adversely.

19.She said that she was now "back on the roundabout" being forever concerned about likely sexual abuse of her daughters.  She repeated that she was sure that the girls had been abused by their father.  Again when her view was gently challenged, in, as for example, that all the evidence had been examined in detail and that her view had not been supported and she should take some heart from this, she became even more distressed.

20.She could not accept that (in the unlikely event that she was right) the children would be protected now by their advancing age and by the fact that, whatever had happened in the past, Mr Lane had now, not only to protect the girls but himself from future allegations, so would have to be scrupulous in his behaviour.

21.Ms Arthurs vacillated between wailing distress and anger.  She explained that she had made a suicide attempt and had been in hospital during the previous week.  (The children had told their father earlier and discussed with him that their mother had recently "lost her job").

22.After a little while she was persuaded to calm down for the sake of the children as she could not take them with her the way she was.  She immediately began to pull herself together, announcing that, as a psychologist, she knew the way she had to behave towards her children.  As she became calmer the writer said she would go and ask Mr Lane to leave the Child Care Room first.  Ms Arthurs replied very loudly, "Yes, get him out of here first.  If I see him I'll kill him." (No children were anywhere nearby at the time.)’

(d)         This does not draw any dissent from Ms Arthurs.  When the children’s time with their father was brought to an end and when they joined their mother, Ms P described the children as very pleased to see her and Ms Arthurs as appropriate with them.  Taken to this by Ms Arthurs in cross-examination, Ms P added that the juxtaposition between her anger and ‘bringing it together’ [Ms Arthurs’ expression] were concerning in that she was ‘quickly up and quickly down’.  L, she reports, said to her mother as they left to join the others: ‘we asked him and he has changed.’

(e)         In her discussion with Mr Lane after the children left, Ms P reported him as surprised at Ms Arthurs’ dissatisfaction with the outcome; he had been more worried about the children’s reaction and was delighted and reassured by his time with them.  In light of her response, he was given some advice about dealing with possible difficulties on the Saturday, including the suggestion he take a friend, something he had already foreshadowed with the girls. 

(f)          The Saturday visit went very well according to Mr Lane and this was supported by the evidence of Mr JP and Ms AL who accompanied him for the day.  I accept his evidence about the events of that day.  In short, the children very much enjoyed their time; they returned to his home and had outings, including time spent at the beach. 

(g)         On the return journey to the park where they were to meet their mother, there was an exchange between T and her father in the back of the car.  He describes it this way:

‘During the course of our initial contact at the counselling rooms on Tuesday, 28 February 2006 I had mentioned to the children that I was thinking of taking them to visit our friends [JR] and [his wife] and their three children in Melbourne during the contact period we would have together over the Easter/April school holidays.  On the drive back to [X] [T] said words to the effect: “will we be staying at [Mr and Mrs JR’s] house if we went to Melbourne in April”  When I responded that we would [T] then said words to the effect: “you will have to ask mum about going to Melbourne”.  I replied with words to the effect: “I will let mum know that we are going there.”  [T] then responded with words to the effect: “it is still too early to be spending time away from mum”.  I replied with words to the effect “you will both be all right.  No harm will come to you and you can both spend next weekend with me”.  At this point [T] said words to the effect: “Mum said it is still risky.”  I then responded with words to the effect: “[T] you will be all right, I never hurt you nothing happened.”  [T] then replied in what I noticed to be a very adamant fashion “Yes it did”.  At that point I thought it best to change the conversation.  Shortly thereafter [T] was smiling and again talking about other things.’

(h)         When they arrived at the park Ms Arthurs was waiting for them with G.  As Mr Lane described it, the children hugged and kissed him before running to their mother and G.  The children then ran back to the car to retrieve the things they had forgotten in the back of the car [soft toys from his home] before returning to their mother.  He observed them in the distance excitedly showing her and G what they had in the parcels and as he departed T looked towards the car and waved to him. 

(i)          Ms Arthurs sees the children’s departure from their father quite differently.  On her account of it, the children ‘seemed to be avoiding saying goodbye by way of a hug or kiss’.  As she sees it, Mr Lane positioned himself in front of them between her and the children so they had no option but to hug him.  She saw [T] trying to move around him - ‘[T] could see me watching’ - and then they ran from his car.  When T reached her, she reports T saying ‘I didn’t want to hug him, but I had to.’ 

(j)          On Monday Ms P spoke by telephone with each of the parents.  Mr Lane called her and asked for an appointment to see her [that was arranged for the next day] and he related how well the Saturday visit had gone.  He said the children were a little more tense than when he left them at the Court but became relaxed with him ‘with [T] opting to hold his hand after a very short time’ whereas L was ‘a little more reserved but she was holding his hand, at her instigation, after about an hour’.  He also reported them to be enthusiastic about visiting him the following weekend. 

(k)         Ms P telephoned Ms Arthurs after this discussion and her report of that conversation follows:

‘30.…She confirmed that the hand overs had gone without incident. However, an enquiry as to how the children had been after the day with their father yielded a different perception from that which [the father] had.

31.She commenced by reporting that the children never wanted to see their father again. She said that when they left the court the children were quite enthusiastic about visiting their father but, as Saturday got closer they got less and less enthusiastic. Although there were tears in the car going, they said that they had to give him a chance.

32.They were relieved to see a mutual friend was there.  (They had been told by their father at the court that he would be.)  According to [the mother] they "ran into the arms of the friend, not their father".  When they returned they ran straight to their mother's car, forgetting the things that they had brought back from their father's.  They ran back to his car to get these possessions.  When they got back to their mother's car they "cried and cried".

33.She reassured them that all was OK but they said that he made them feel guilty.  In front of his friend and his friend's partner, he told them "it had never happened."

34.She then said that they had talked to him about staying overnight the next week and [T] told him that she had a slumber party with a friend that she wanted to attend.  [The mother] reported that [T] had already been excited about the party, which had been arranged prior to the orders in this matter being made.  [[T] had not mentioned that when discussing the weekend with her father at the court.  It had not been mentioned that day by either Ms Arthurs or [L].]  [The father] apparently replied that it was "too bad".  They had to come to his house because he had not seen them for a year. 

35.[T] also asked would anyone else be there and [the father] replied in the negative.

36.[The mother] reported that she has said to the girls, because of their distress, "We need to talk about it" and she added, that was if they wanted to.  She stressed to the writer that she was "not looking for information about [the father]".  When they talked, [T] told her that she felt, "ten feet tall" when she confronted her father.  Her report to her mother of her father's reply was "No, it's not going to happen again" and then he corrected himself to say that it had never happened.

37.      The children then said they did not want to go back to his house.

38.[The mother] said that he is talking of taking them to Melbourne at Easter and to Mauritus at Christmas time but she said he is insolvent and can't go.  "He is a con man" as he will not be able to take them.  They will be disappointed again.

39.      "They don't want to see him again. That's it," she said.

(l)        Ms Arthurs went on to reveal she had been ill.  The report continues:

40.…She may not have recalled that she had previously mentioned that.  She was worried in revealing this and that it would be used against her, as she felt that a great number of things she said to the court were used against her.  [Despite the fact it is clear that the court would always regard it as positive action for parents to seek help for mental illness.]  On 23rd February she had had to call Lifeline.  She was hospitalised.  A "couple of days ago" the Mental Health team had telephoned her to find out about the Judgment in this matter.  They then made a referral to DoCS and to JIRTS, she said.  The Mental Health Team had also made another referral for the children to a Child Sexual Assault Counsellor while she was in hospital.  It was understood by the writer that the first appointment for the children with the Sexual Assault Counsellor was very soon.

(m)        It seems this revelation may have prompted the children’s representative to bring the application to restrain Ms Arthurs from having the children counselled for sexual assault.  In that conversation she said she would be lodging an appeal and the children would not be going with Mr Lane the following weekend.  Asked whether she would like this passed on to Mr Lane, she said she would rather do this herself.  As it happened, she did not make any contact with him to convey this position and she presented with the children at the agreed changeover venue on the Friday according to the orders, but I shall come to what occurred shortly. 

(n)         Of her interview with Mr Lane the following day, Ms P said he related the exchange with T in the car on the return to Ms Arthurs.  He was concerned to know whether he had handled it in the correct way and he sought reassurance and guidance about what he had said and should say if this recurred.  Ms P included the Manager Mediation in this discussion because of her specific expertise in child sexual abuse.  Mr Lane was informed that children sometimes take on the view they have been abused, particularly after persistent questioning and counselling, and if the mother holds strongly to the view that the child has been abused, the child may also adopt this view.  He was given the advice not to directly contradict either of the children if they brought this up again because it is not helpful to so bluntly deny their own reality, but instead to stress to them that the Judge had made a thorough investigation and decided they were safe with him and would come to no harm.  He was encouraged to repeat this reassurance.  She said he appeared confused and distressed about why the children would find it necessary to say this to him.

(o)         Ms P subsequently had discussions with two personnel from the Mental Health Team at T to express reservations about the wisdom of further referral for sexual assault counselling for the children.  The detail of that can be seen from her report.  In the course of that [para 49] the case worker confirmed Ms Arthurs’ firm belief that the children had been sexually assaulted and said Ms Arthurs was prepared to contravene the Orders and face a gaol sentence on the understanding that while she was in gaol the children would remain safe with Mr Arthurs  The caseworker confirmed what Ms Arthurs had told Ms P, namely, she would not be sending the children on the next contact visit overnight.  None of this was disputed by Ms Arthurs. 

(p)         On the morning of 10 March [weekend contact was to begin that afternoon], Ms Arthurs called Ms P who reports her as much more accepting of the fact that she would have to send the children to their father for an overnight stay that weekend.  She was in quite a calm mood – ‘she spoke very slowly and carefully’.  She said she is trying very hard to control her anxiety though concerned the children were saying they would not go.  She related the children appeared to be ‘dazed and confused’ and she felt helpless to assist them.  To deal with any reluctance of the children about staying with their father, Ms P advised her to drive them to the meeting place and leave them with their father for a private conversation with him so he could persuade them, in whatever way he felt appropriate, to accompany him.  There was discussion about a slumber party to which T had been invited on the Saturday night and Ms P acted as intermediary between the parents about those arrangements.  Essentially, Mr Lane would take T to the party and L would return to her mother for that night and he would collect both girls the following morning.  At the same time, Ms P indicated to the parents that from now on the girls would talk to their father about functions they wished to attend on weekends they would be with him and the decision would be his after consultation with the children.  Ms P was unable to contact Ms Arthurs to confirm the slumber party arrangements [Ms Arthurs did not return her call] but she did inform Mr Arthurs who indicated they were acceptable. 

(q)           The children did not accompany their father that afternoon.  He went to the park with a friend known to the children, Ms LP, and waited for Ms Arthurs and the children.  After the appointed time, Mr Lane saw Ms Arthurs and the children making their way towards him under the bridge.  Both children were holding on to their mother and he described their demeanour as completely different to what it had been on the previous Saturday – heads downcast, shoulders drooped - he waved to T when she looked briefly in his direction but she looked down again and did not return his wave. 

(r)          In her description of events leading up to arrival at the park, Ms Arthurs said the children had not wanted to go but ‘we more or less forced them into the car’.  They put a camera in the car and filmed her and the children [there was no suggestion there had been any filming of Mr Lane without his consent] which she said showed L ‘clinging’ to her and T ‘buckling at the knees’.  Mr Lane did not seem to be there when they arrived and T said ‘he's not here, let's go’.  After a while they made their way under the bridge towards him.  L wrapped her arms around her waist and said ‘I won't go’ [[L] had said over and over ‘he feels like a stranger’], the children were hanging on to her, they would not let go of her, and she could not ‘peel’ them off.  T looked like she was weak at the knees and like she was going to vomit.  L asked her to talk to him for them, she encouraged them to tell him themselves, they said he would not listen, and so she felt she had to do it herself. 

(s)       They stopped some distance from Mr Lane and Ms Arthurs asked to speak with him privately.  There was then an exchange in front of the children.  Ms Arthurs told him the children did not want to go with him, they did not want to spend the night.  He asked to speak to the children alone, a question he directed to the children.  After a moment of silence Ms Arthurs gave T’s hand a brief shake and said to her ‘do you want to speak privately with him’.  Without looking up, T shook her head.  Ms Arthurs then said ‘I can’t do this’ and turned to walk away with the children.  He replied: ‘you do realise the consequences of what you are doing?’ and she did not respond.  On Mr Lane’s account, which I accept, neither of the children uttered a word throughout.  Their behaviour and comportment, he said, was in stark contrast to their demeanour towards him at the Court after judgment and on the previous Saturday. 

(t)          The following Monday, 13 March, Ms P spoke to each of the parents when they each gave an account of the events of Friday afternoon.  Ms Arthurs remarked that Mr Lane had ‘actually under the circumstances handled it quite well’ but added he had been rude and frightening at the end.  As soon as the children got into the car, she reports, L said ‘How much petrol have we got? Just drive and keep driving.’  During that conversation with Ms P, Ms Arthurs raised the sexual assault counselling.  She said the situation was difficult and a letter from the child representative asking her not to take the children to such counselling was ‘terrible’.  Ms P’s report continues: 

‘81.……She went on to say that now the children could not be given sexual assault counselling until the service providers see what will happen with the children. "It has to go through the Child Assault Unit as they need to cover their butts about not originally picking it up more closely."

(u)         Ms Arthurs related to Ms P there had been more disclosures by the children since the final hearing and the first of these had been the reason for her hospitalisation on 23rd February just prior to delivery of judgment.  Ms P said she described some of the disclosures [Ms P elaborated on this in cross-examination] and in the course of this Ms Arthurs revealed that all three girls are now sharing a bedroom ‘as she wanted G to be with the girls to reinforce and share positive ideas and thoughts.  She said, "She is in there to stop them talking negatively about [the father]."  Ms Arthurs also told Ms P that she had asked the domestic violence team at the police station what she should do about the disclosures and that the children had said they would talk to … [the police officer who had interviewed them previously] but she had been transferred and they would not talk to anyone else.  Asked about the sleepover on the Saturday night, Ms Arthurs reported it had gone well.  Asked how the children were over the weekend, she described them as ‘blank and quiet’, that T had nightmares about faces popping into her face and ‘distorting in front of her eyes’, and being ‘clingy and strange’ with her and Mr Arthurs.  She asked for it to be suggested to Mr Lane that trust might be built up if he wrote some letters to the children. 

(v)         Ms P then had a conversation with Mr Arthurs.  He said the children had been disappointed during the previous Saturday visit; they had not spent time with their father, but had been left with ‘his guests’.  They had told him they had no chats about their lives and opportunities, and no conversation with their father.  He went on to relate that in his opinion the children had always had an entirely negative view about their father, they had never been able to say anything good to him about their father, the only exceptions were when they told him their father had bought something for them.  By contrast, the children often asked him, ‘Why are you so kind?’ which led spontaneously to discussion about their father.  He expressed concern about Ms Arthurs, saying, ‘I think [the mother] is being set up.’  He mentioned T’s ‘new disclosure’ and that she is now very relieved.  The conversation ended at that point as time had run out. 

(w)        It will be noted, as Ms P points out in her report, that what Mr Arthurs related about the children’s experience of the Saturday visit is quite contrary to what Mr Lane had described of their visit to the beach and other activities the children had enjoyed.  It is also contrary to the evidence of those who accompanied him.  Furthermore, from her own observations, much of what he said is also quite contrary to the way the children chatted to their father at the Court. 

(y)         Mr Lane’s circumstances remain as they were.  However, there has been some changes in Ms Arthurs’ circumstances and the evidence about that comes from her affidavit.  She has not returned to work since the hearing.  She is on sickness benefits.  Mr Arthurs, as she explained it, cannot take employment opportunities to alleviate their financial situation because her present psychological state requires she have company at all times.  She does not elaborate.  He receives a carer’s pension.  It is also her evidence that they have had financial difficulties and were at one point facing repossession of their home [though she said that has now been sorted out] and she has a debt to her former solicitors about which there has been court action. 

1. Ms P expressed her views about the recent developments and their impact on the children in these passages of her report:

   92.It is clear that [the mother] is making considerable effort but is finding it impossible to send the children on contact visits despite hearing from others that the reaction of the children to their father has been quite positive.  She has appeared to deteriorate during this period as she grapples with the idea that the children have to go to their father, but in doing so appears to have retreated, perhaps as a defence mechanism, to the behaviours which she has been used to exhibiting.  This was epitomised by her description of what she interpreted as the recent sexual abuse disclosure, which appeared to the writer, from [the mother’s] description only, likely to be the nonsensical sort of play which a lot of children go on with, even in the school situation.  The difference is, perhaps, that where a lot of children may refer to the general genital area as their "bottom", these children may well refer to their general bottom area as their "vagina."

2. Ms Arthurs took exception to the description of the behaviour as ‘nonsensical’ but I accept Ms P’s assessment of the situation as sound.  The report continues:

   93.It does not appear as if it will be possible for there to be a smooth exchange of the children for contact as things are at the moment, with the mother's strong and firmly fixed views about sexual abuse.  It is also very likely that there will be further sexual abuse allegations reported to authorities.  Some of the general views of the sexual assault service in T, as described to the writer by their officer in charge, give rise to concern that any allegations may not be treated appropriately under these particular individual circumstances.

   94.[The mother] is entirely convinced of her own reality of abuse and assault and mistreatment of the children in their father's house.  Mr Arthurs, on his part, is certain that [the father] has not been a good father to these children.  He is prepared to do his best to fill that role and indeed he is sure he is doing well.  They are both convinced that [L] has few memories of her father and does not know him.  This was seen to be not the case.

   95.It is evident, from what Mr Arthurs told the writer, that the children have always found it impossible to say anything nice about their father to their mother and Mr Arthurs.  This appears to be a very worrying revelation Mr Arthurs has made, in view of the fact that there are many positive things that they clearly still feel about their father.  They not only discussed some of these with him at the court but also, it appears, with him on contact.  It is hypothesised, therefore, that they cannot tell their mother anything positive about their father for fear she and Mr Arthurs do not want to hear positive things.  Any negative remarks they make appear to be positively reinforced by quite dramatic action or at least intensive conversation on the part of their mother and by positive and encouraging comments by Mr Arthurs.

   96.It is of no surprise that T's dreams are of faces distorting before her eyes.  Such is the life she is leading at the moment.  Her mother is finding it extremely difficult to cope emotionally and she holds the sincere view that her children are at risk with their father.  Their father appears to them, it seems, to be the same father that they knew, and it is clear that their memories go a long way back.  The court has supported that view.  This does not fit with the picture of fear that is painted around him.

   97.From the mother's description, they suffer from considerable separation anxiety from her in any situation, as indeed does [G] (also by the mother's report).  Their mother's recent hospitalisation will not be helping this anxiety.

   98.The thought that, with the best of expressed intentions, [G] is now sleeping in the room with [T] and [L], depriving them of their one opportunity to reality test with one another, is of some concern.  Two such different realities as those expressed to them by the Arthurs and those shown to them by their father, and supported by court orders, are difficult to co-exist, especially in the minds of young children.

   99.The main impacts for them of these developments, therefore, seem to be both coping with the extreme anxiety generated in their mother by the task she has been set which she finds to be impossible to perform; and reconciling two irreconcilable views of what is the reality of life for them.

3. Ms P concluded her report with the observation that the current arrangement cannot continue.  She posed three options and no-one suggested there were any others:

   ‘(a)As foreshadowed, to change residence so that the children live with their father. If this were to happen the children would need a considerable period of adjustment prior to visiting their mother.

4. She elaborated upon this in her oral evidence.  Given the dynamics between the children and their mother, after moving to live with their father they would need time to adjust to the reality of being with their father before they saw her or spent time with her.  After the forthcoming school holidays they would need a period into the school term to settle.  She thought a month or two would be appropriate.  After that it would be appropriate for the children to see their mother for small periods of time, preferably with someone else there in a supervised situation, and hopefully later on for weekends and holidays when they could resume a parental/child relationship without the intensity it has at the moment.  However, when that might be is difficult to predict now and would depend very much on how Ms Arthurs handles the whole situation. 

   (b)For the children to remain living with their mother and to discontinue all contact with their father. This would enable the children to take on board the mother's reality without constant challenge. It would have the positive effect that the mother might be less stressed and could cope more appropriately with the children in their day to day lives. However it could only be a viable option if the court were able to accept that the children would not be damaged in her reality.

   (c)For the children to remain living with their mother and to make a further attempt for contact with handovers structured in a different way. These could take place directly to and from school for a set period of time, particularly leading up to a long Easter and perhaps July vacation for the children with their father. For this option to be successful there would have to be orders that would provide for the children to be at school unless there was a medical certificate made available relating to a concrete physical illness of the child or children not present. There would also have to be provisions that neither Mr nor Ms Arthurs (or any agent for them) were to be anywhere near the school at the time. A negative for this proposal is that [the mother] might still find it emotionally difficult for her.

   101.In relation to Counselling for the children, it is recommended that orders be made that the children are not permitted to be referred for sexual assault counselling.  Family therapy might help the children if it were to be of a very high standard and it involved both Mr Lane and the children and Mr and Ms Arthurs and the children.  If the counsellor were trying to help the children adjust to the two different realities that the children are asked to move between, then it would be important that he or she experience what the children experience.  It is recommended that the children not attend on a counsellor for this purpose unless such a person is highly qualified and experienced.  It is also recommended that copies of the report of Ms T and the Judgement in this matter be made available to any counsellor who deals with the children on a therapeutic basis.’

1. Elaborating on this in her evidence, Ms P said the family therapy would not be necessary it option (b) was the outcome, it would be helpful if option (a) was adopted, and it would be essential if option (c) were put in place. 

1. Residence application

1. Against this further background, I turn to the residence issue.  The orders sought in his formal application [filed 21 March] are for [T] and [L] to live with him, their mother have no contact with them or, alternatively, supervised contact occur at a contact service at B, their mother be restrained during any period of contact from discussing the Court proceedings with the children, and any contact take place in the absence of Mr Arthurs. 

Section 68F(2) factors

1. Ms Arthurs reports the children still expressing to her strong wishes about contact with their father though it is not easy to distil just what it is she would have the Court accept as being their point of view.  On the one hand, she maintains the children ‘do have a relationship with their father, they do love him, they do not want to spend the night with him, he has to build trust.’  On the other hand, she reports L repeatedly saying after the day time visit on Saturday her father ‘feels like a stranger’ and she attributes T’s display of affection for her father on parting at the end of that day to his manipulation which compelled T to hug him contrary to her wishes. 

1. The view I expressed in the earlier judgment was to the effect that the children’s wishes could not be quarantined from the negative and critical environment surrounding them on the topic of their father and his worth to their upbringing, and I noted they had no countervailing point of view to test their own experiences of their father because they had not had any contact with him [at the time of the hearing] for around 20 months, except for the disastrous encounter during the expert reporting process.  However, I acknowledged the importance of what children have to say about their arrangements, which becomes especially apparent when one is considering the practicalities of acting contrary to their express wishes. 

1. I adhere to the view that the expressed wishes of these children cannot be quarantined from their environment and that has been reinforced by the more recent events.  The influence of their mother’s views and attitudes is apparent from T’s apparent need to provide her with an excuse of compulsion for giving her father a parting hug, knowing her mother was watching, and from Ms Arthurs’ own interpretation of Mr Lane’s actions as virtually manipulating T into that position.  It is apparent from her reports of L repeatedly saying her father ‘feels like a stranger’.  Mr Arthurs’ congruent views and attitudes are also apparent from his telling discussion with Ms P, a repetition on a theme at the hearing, of how the children tell him of their father’s neglect and shortcomings and the comparison they make with his [Mr Arthurs’] much more positive attributes.  All of which stands in stark contrast to the independent observations of the supervising reporter who saw the children’s enthusiastic responses to their father for most of the two hour period immediately after the delivery of judgment.  That piece of evidence – how the children would respond to him, given the requisite permission - was missing at the time of the last hearing.  The positive nature of their initial encounter was then reinforced during the Saturday visit.  Ms Arthurs may be convinced, along with Mr Arthurs, that L has few memories of her father and does not know him and the children may very well be unable to tell Mr Arthurs [or their mother] anything nice about their father.  But that is not right.  As Ms P observed, clearly L does have memories of him and clearly there are many positive things the children feel about their father because they discussed some of these things when they met with him at the Court.  That is not to say either Ms Arthurs or Mr Arthurs is falsely reporting what the children say to them or to either of them.  It is more that the children cannot say anything positive about their father to them because, as children well understand and come to learn, neither their mother nor Mr Athurs want to hear it, whereas negative remarks about their father are positively reinforced and encouraged.  What the re-established contact shows and the supervising report confirms is that, given the requisite permission and away from that influence, the children are responsive to their father in a positive and affectionate way. 

1. The children, I accept, are closely attached to their mother, as they are to G and to Mr Arthurs.  The description given by Ms Arthurs led Ms P to form the view that the children suffer considerable anxiety on separation from her.  It follows that any absence, more particularly any prolonged absence, would be quite difficult for them.  I accept they would also find it difficult to be separated from G and from Mr Arthurs for any period, more so for any prolonged period. 

1. In the earlier judgment there was no independent evidence of the state of the children’s relationship with their father based on a re-introduction to him with the litigated issues resolved.  Instead, there was a long period of absence, during which they had aired consistently negative views about him without having been given any opportunity to develop a view contrary to their mother’s patently negative attitude or contrary to Mr Arthurs’ apparent need to be weighed in the balance with Mr Lane and have him found wanting.  The missing piece is now available.  As I find, despite the long absence, the relationship these children have with their father, though it might be subject to some vulnerabilities at this early stage, has survived and is intact. 

1. I am satisfied Mr Lane is a responsible parent who has the maturity, balance and capability to take the care of these children and provide for their needs.  This is consistent with findings made in the earlier judgment, though I expressed there some reservations about his ability to effectively manage the children’s behaviour if that were to be highly oppositional and defiant, particularly having regard to their responses in the expert reporting process.  Developments since the earlier orders, more particularly his re-introduction to the children and his ability to work with the supervising counsellor, have dispelled any reservations.  Of course it is difficult to give an account of a strategy to deal with problems that might arise from the children’s transition to his care when there is no concrete context on which yet to develop a plan, as he pointed out.  But I am satisfied he is capable of dealing with whatever situation might arise and to the extent necessary, he would seek assistance, either from friends or professional advice, in his efforts to see the children’s interests are put to the fore. 

1. I also expressed in the earlier judgment concerns about shortcomings in the ability of Ms Arthurs and her partner to appreciate the children’s emotional and psychological needs in so far as that relates to their relationship with their father and his proper role in their lives.  An important question, I said then, would be Ms Arthurs’ ability to meet the children’s needs in the future with the litigation behind her, depending on her ability to accept the judgment in so far as it ran counter to her own assessment of their interests and needs.  I had in mind the ambivalence she had expressed on occasions in the course of the hearing about the children’s contact with their father and the sexual abuse allegations [ie. there should be contact; she no longer believed there had been any abuse, though these positions were never sustained for long].  Rather than reconsidering her perspective, Ms Arthurs maintains her stance, she raises fresh allegations of abuse, and she is pursuing the engagement of these children in sexual assault counselling.  Despite occasional but transient offers of facilitating contact - provided her limitations are adopted and never at any stage reflected in formal orders sought or sustained in argument – Ms Arthurs is unable to support a relationship between the children and their father.  She has also demonstrated she is quite unable to see the children’s interests from any perspective other than her own, which is a source of emotional and psychological harm for them. 

1. What is of further concern now is the stability of Ms Arthurs’ own emotional and/or psychological state.  This comes from her presentation or admission to hospital prior to the delivery of judgment for mental health problems which, on her statement to Ms P, was precipitated by a suicide attempt.  I hasten to say there is absolutely no question of criticism of her for seeking medical assistance for her mental health; to the contrary, that she sought such assistance is fully supported and Ms P was quite right to assure her it would be viewed that way.  The issue, rather, is the absence of any assessment of her mental state so as to allay the concerns that naturally arise as a result.  It also comes from her unrestrained outbursts after the delivery of judgment and her reaction to the outcome.  Of course people react differently to disappointment or frustration and may not put their best foot forward in the spontaneity of the moment.  That is entirely understandable and normal.  But Ms Arthurs’ reactions were outside those more normal bounds and out of all proportion to the outcome, which allowed for the children to remain living with her, though provisionally.  Added to that, her presentation of allegations of corruption of the court process and associated topics, elaborated upon in some detail throughout her affidavit, reflects illogical, confused, and unfocussed thought processes.  Her perspective, it seems, is to see the children as victims - despite whatever may be said by anyone else coming to the matter - and herself thwarted in her role as their protector by the ‘system’ in turn victimising her.  I cannot now see anything budging that at this point at least. 

Options

1. In the earlier judgment I discussed the options as they appeared to be at the time.  On a fine balance, I departed from what was being recommended by the expert and urged by the children’s representative and Mr Lane’s counsel.  Instead, I made interim orders of a provisional nature and put in place the facility that would produce a report of developments for the children after the judgment and after there had been some ‘permitted’ contact with their father.  The future in large part, as I pointed out then, lay in Ms Arthurs’ hands. 

1. The options at this point have been well articulated by Ms P at the end of her report.  I dismiss option (c), with or without a changeover at the children’s school.  There is not going to be any change or different viewpoint coming from the Arthurs household.  That has been made clear and the children cannot continue to try to reconcile two irreconcilable views about their reality, as Ms P pointed out.  Nor can the children continue to operate under the kind of pressure so evident on the afternoon of 10 March.  T’s nightmares, as reported by her mother, may very well be an indicator of the stress she is under.  I also dismiss option (b).  To adopt that would be to leave these children in an environment of emotional and/or psychological abuse by reason of the genuinely held but misguided views of their mother and Mr Arthurs, with all the resulting harm that will cause them in the longer term, with only that perspective available and no opportunity to have the more balanced and mature personality of their father involved in their upbringing.  Taking this option would constitute an unacceptable risk to their well-being.  The weight of developments since the earlier orders, including the evidence of Ms P of the children’s responsiveness to their father, tips the scales in the direction of option (a).  I am satisfied, in other words, the children’s best interests will be served at this point by moving to live with their father. 

Contact

1. This leads to the question of the children’s contact with their mother, G and Mr Arthurs.  I accept there will be a need for the children to adjust to the transition, which in turn will necessitate a period of absence of contact with their mother so they are away from the influence she has on their perspective.  They have a considerable adjustment ahead of them and I bear in mind these are children who are anxious about separation from their mother, but I think a period of two months is necessary.  After that, contact can begin, but in a supervised setting.  No one produced any evidence about what supervisory resources are available, or are likely to be available in the relatively near future, so the orders putting that arrangement in place must be made more in anticipation than certainty.  The supervised period will be stipulated to run for a period of six months but provision will be made for that to be a shorter period if there is agreement about the introduction of other arrangements.  No doubt a contributing factor to any such decision will be Ms Arthurs’ emotional and psychological state at the time.  I should add I can see no reason to limit that supervised contact to her and it should also include G and Mr Arthurs.  G’s position, however, will differ somewhat in that there will be additional orders which will provide for contact, if she wishes to take that option, by arrangements being made with Mr Lane by her or on her behalf.  That is not for the purpose of being her mother’s ‘eyes and ears’, but for the benefit of her and her sisters’ relationships. 

1. But to look beyond those months of supervision presents difficulties.  Clearly supervised contact cannot continue for children into the longer term but, in this case, I cannot make a finding about what contact would be consistent with the children’s best interests beyond a reasonable period of supervision.  That is because I am unable to properly identify and assess Ms Arthurs’ mental or emotional state now, given the recent treatment she sought at a mental health facility and her report of an attempted suicide, much less what it is likely to be in the future.  It would be preferable naturally to make orders into the longer term, but when that cannot be supported by findings linking the arrangements to the best interests of the children, the future will have to abide later developments.  There will be a provision, therefore, allowing for agreement to be reached about contact beyond the supervision phase and, absent agreement, it will be according to further order of the Court.  In making that general provision, I am satisfied, I should say, that Mr Lane has no desire to see the children’s mother excluded from their lives and I am further satisfied that he can be relied upon to facilitate the children’s contact with their mother if the circumstances are consistent with their interests.  I should also say that any further Court proceedings, if agreement is not able to be reached in the future, will be separate proceedings and not a continuation of these.  My decisions in this matter will conclude with this judgment. 

Other orders

1. I propose continuing the order for counsellor supervision throughout the initial period of absence and the supervision.  The assistance Ms P is able to give in the obviously difficult task ahead is likely to be of considerable benefit to all concerned. 

1. Other orders will relate to Mr Lane being able to travel with the children interstate and to Mauritius to visit family for which purpose he will need the children’s passports. 

1. It remains to say that I do not propose making any orders for family therapy.  Ms P considered it would be helpful if option (a) were adopted.  But without any certainty about the facilities available, I am reluctant to elevate the situation to the status of orders.  Mr Lane can be relied upon to take that course if the circumstances warrant it and Ms P, I have no doubt, will be able to guide him in that direction. 

2. Stay application

1. I turn now to the stay application. 

Approach

1. First, in general terms, it is well recognised that ordinarily a successful party is entitled to the ‘fruits of the judgment’, but it is equally well recognised that there may be circumstances justifying the grant of a stay of the operation or execution of orders pending the outcome of an appeal.  Consistent with appellate authority, a stay is not granted as a matter of right and a ground needs to be made out depending on the circumstances of the case.  Generally, I think it can be fairly said that the up front issue to be addressed is whether the stay is necessary to preserve the subject matter of the litigation but consideration of these matters is relevant to the discretion involved:

   ·   whether refusing a stay will render a successful appeal nugatory or will make it impossible or impracticable to restore the position;

   ·   the merits of the appeal;

   ·   whether there has been delay in applying for the stay;

   ·   the bona fides of the applicant;

   ·   the time the appeal will be heard;

   ·   any hardship that would be suffered by the parties as a result of granting or refusing the stay.

1. Of course the language of preservation of subject matter is suited to financial orders rather than parenting orders.  For that reason, principles suited to children’s circumstances have been developed.  The central case, which remains good law, is Clemett and Clemett (1981) FLC 91-013, a copy of which was given to Ms Arthurs at the outset of the hearing to assist her with her submissions.

1. Some years before Clemett, in Sanders and Sanders (1976) FLC 90-078 the Full Court considered the refusal to grant a stay pending appeal. The orders provided for the father to have custody of a very young baby who had been in the mother’s care until that order. Evatt CJ [which whom Marshall and Watson JJ] concurred said:

   ‘In custody cases, whether they arise at first instance or on appeal, in my view it is not desirable to disturb the status quo pending the determination of the matter unless there is something about that status quo which might be harmful to the child…In this case there is nothing to suggest that any harm would have resulted to the child by staying with the mother, and it is not suggested she would not have been able to give it the care which it needs.’

1. Clemett itself concerned an appeal against the refusal of the trial judge to grant a stay of orders providing for the mother to have custody of a child who had been in the care of the father for a considerable period and was ‘reasonably happy and contented and had been properly looked after by the father”.  Their Honours reversed the decision of the trial judge and granted a stay.  In the leading judgment delivered by Nygh J, his Honour said at 76,175:

   ‘In determining whether a stay should be granted, the welfare of the child is the paramount consideration.  It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible.  If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.’

1. Many differently comprised Full Courts have expressed their agreement with this passage subsequently.  The expression ‘the present circumstances of the child’, of course, means the circumstances prior to the making of the order and not to the circumstances after the order if that has already been put into effect [see W and W (per Ellis, Baker and O’Ryan JJ, EA 84 of 1996, delivered 10 October 1996).

(i) merits of appeal

1. The grounds stated in Ms Arthurs’ Notice of Appeal are brief:

   ‘Her Honour made a finding of facts on an important issue which could not be supported by evidence.

   Her Honour exercised her discretion to arrive at a decision which was clearly wrong.’ 

1. No Court date has yet been set for directions about the preparation of the appeal and any re-formulation of the grounds will be a matter for an appellate judge.  To deal with her stay application, however, and in an attempt to assess the merits of her appeal, I think it necessary to look more widely and go to the affidavits she has sworn recently, which seem to shed more light on what might be considered her grounds.  In her first affidavit, filed at the same time as her appeal, she progresses through the judgment, making commentary about selected paragraphs.  She concludes by giving evidence of some developments after the hearing concluded and before judgment was delivered and those matters have been considered earlier in dealing with the residence application.  Her second affidavit, amongst other things, elaborates on her views of the court process. 

1. The orders Ms Arthurs seeks in lieu are for the children to reside with her and Mr Arthurs [he has never been a party], they have no contact with their father ‘pending proper investigation of allegations of abuse’, the child sexual assault counsellor at the T Community Health Centre determine contact arrangements with him in accordance with assessment by that counsellor of the children’s best interests, all parents agree to abide by those recommendations, and the ‘biological’ parents attend mediation sessions at a Community Health Centre in either T or F as soon as possible ‘in an effort to amend the breakdown in communication and trust.’  There is no need here to discuss my reservations about the Court’s power to delegate its decision making responsibilities in the way suggested and for present purposes the focus can remain on the merits of her grounds rather than the terms of alternative orders sought at this stage. 

1. It will be seen from her affidavits that Ms Arthurs attributes her ‘current position’ [which I infer from the context to be a reference to debt and her mental state] to being involved in a ‘corrupt and incompetent judicial process’.  This is a theme she returned to in her second affidavit in response to the residence application.  Her evidence has to be read to fully appreciate her point of view and summarising it would not do it justice.  But it will be seen that she asserts a number of propositions, including the ‘shared parenting policy’ has paved the way for men guilty of abuse to apply for contact or residence orders; court proceedings are being used as a ‘threat’ against mothers who do not comply with father’s demands; and the media erroneously reports shared parenting orders.  She asserts the Newcastle Registry is ‘displaying the same problems as the Dandenong Court which led to the implementation of the project Magellan’.  She levels criticism of Ms O’Rourke, the advocate for the children’s representative, which she introduces by the comment that ‘abuse allegations have been ignored to enable a set up orchestrated by Ms Kim O’Rourke.’  She elaborates on this in some detail by reference not just to her own case but to other cases heard in the Newcastle Registry in which she [Ms Arthurs] was involved in some way, the essential proposition being [as I read it] that Ms O’Rourke is unprofessional and biased, even corrupt, in the conduct of her responsibilities.  Her second affidavit continues this theme.  She concludes that affidavit with the statement that with her pre-existing knowledge of the conduct of legal representatives at the Newcastle Registry and a thorough knowledge of family law, an attempt by her to create false allegations of abuse would be ‘illogical’. 

1. These aspects of Ms Arthurs’ appeal would have to be described by any objective observer not only as bizarre but as a worrying indication of her mental state and capacity for reasoned analysis and judgment.  If her appeal were limited to matters of this kind, it could be assessed as entirely unmeritorious.  However, there are other stands to the argument she intends to present, and I take those to be her detailed commentary on many paragraphs of the judgment as set out in her first affidavit.  To be found there are assertions about the availability of evidence, or creditable evidence, to support findings on the abuse issue and the supposed ‘catch 22’ she was in where ‘I had to prove the children’s allegations were not false or they were going to split them up and place the two youngest girls with their father and no contact with me at all for several months.’  Also, she appears to have arguments about the interpretation and weight to be given to the evidence, which are almost inevitably available in appellate review, and they are difficult arguments to dismiss at this level as being entirely without merit.  I should say that one related argument Ms Arthurs puts concerns the social science research referred to in the course of dealing with Ms T’s reliance on ‘Parental Alienation Syndrome’.  She correctly notes she did not have the opportunity to contest this research by presenting ‘a substantial body of contrasting evidence’…’supporting my position’.  However, I deemed that not to be necessary given my rejection of that formulation by Ms T, which was consistent with the position Ms Arthurs was asserting.  Without in any way rejecting the obvious proposition that there are cases where parents in high conflict separations do embark on a course of conduct designed to alienate children from their other parent, I considered the dynamics here to be more complicated than the relatively simple framework this loaded phrase, complete with its own acronym, maintains.  To that I would merely add that judges do not come to issues such as this with an unfurnished mind [see Patsalou [1995] FLC 92-580].

1. In summary, the re-formulation of Ms Arthurs’ grounds will be for the appeal division.  But as far as I am able to discern from what she has presented thus far, her appeal is wholly without merit if regard is had to certain parts of her evidence.  However, while I do not see merit in any of her other arguments more related to the evidence, I think it sufficient for the purpose of stay proceedings to be able to conclude – as I do in her favour - that there is at least argument available about its interpretation and weight. 

1. It is acknowledged that Ms Arthurs is also seeking a stay of the orders now to be made about the change of residence and she does not have the Reasons for that decision.  But nothing is to be gained by the further delay implicit in delivering judgment in the residence application and standing over her application to stay those orders until a later date.  Nor is it desirable to do so in light of the volatile and uncertain position these children almost surely would be in were they to remain in their mother’s household after delivery of the residence judgment.  As with the judgment to support the orders of 28 February, I take into account in her favour and weigh in the balance the assumption that she has an arguable case to present on appeal against the residence orders. 

(ii) timing of appeal hearing

1. No date has yet been set for the matter to progress at appellate level.  Ms O’Rourke’s enquiries suggest the appeal is likely to be heard towards the end of July.  No one has yet brought an application for expedition, a step I raised on 17 March, but it seems the same information source has indicated that might be the earliest time it could be heard even if expedited.  This means it is likely to be three months or more before the appeal is argued.  In many cases that would be seen as reasonably soon, but these children are in difficult circumstances and I shall elaborate on that further shortly. 

(iii) delay and bona fides

1. It need only be said that Ms Arthurs has filed her appeal promptly, well within the time allowed, she has filed her stay application promptly, and her bona fides in wishing to have her case reviewed at appellate level is not in doubt.

(iv) children’s circumstances

1. All of the factors discussed point in the direction of the discretion being exercised so as to grant the stay.  Also weighing in favour of that outcome is the desirability of limiting the frequency of changes for the children.  It is recognised that granting the stay would maintain the status quo for these children until at least the appeal could be heard and determined.  Now aged 10 and 8 years, [T] and [L] have lived with their mother all their lives, as they have with G, and with Mr Arthurs for a number of years now.  They are strongly attached to their mother, as they are to G and their step-father.  Granting the stay would see them remain in the ambit of their mother’s care, assisted by Mr Arthurs; they would remain living in the same household as G; they would continue to attend the same school; and they would be able to continue the associations and activities they now have available in the environment their mother provides. 

1. Conversely, the dismissal of the stay will have the effect of disturbing those long standing circumstances.  It would place them in their father’s care when they have had very little contact with him over the past 2 years, and that in circumstances discussed elsewhere.  In that event, they would have returned to live at S with their father, though in a home and general environment with which they are familiar.  Significantly, there would be change in their schools and they would need to adapt to this, amongst other challenges.  In T’s case, that would be a return to a school she attended before she joined her mother at O shortly after the separation, so to some extent that would be a familiar environment and there would probably be familiar faces there for her.  Even so, she might have to deal with questions about her circumstances, as her mother suggested, and this could possibly prove to be uncomfortable for her, though it struck me her father had an appropriate strategy for dealing with that – be honest about it.  L, on the other hand, has not attended that school before and so it would be a new situation for her.  As the history so far shows, there have been a number of school changes in the past, so adapting to a new school environment would not be novel; nonetheless, changing children’s school is a significant decision and more so in circumstances such as this where there is an appeal pending about their future living arrangements.  If Ms Arthurs is successful in her appeal and the parenting orders reversed, the children would be uprooted again and returned to their mother’s care. 

1. Also of significance in considering the consequence of dismissing the stay is the impact on the children of the move.  Inevitably, there will be challenges in settling into their father’s household and challenges arising from the absence for a time of their mother, sister and step-father.  Ms Arthur questioned Mr Lane about his strategy to deal with such issues and, as noted earlier, he has nothing concrete in mind, for reasons he explained at some length in response, but I regard his response as reasonable.  Plans can hardly be made about such matters in a vacuum; he will have to deal with whatever arises at the time.  What Mr Lane has demonstrated is a willingness and ability to seek professional advice and assistance concerning the children as the need arises, and I am satisfied not only that he would do so but also that he would be appropriately guided by the supervising counsellor during the more immediate future. 

1. All that said, despite these weighty considerations, I am firmly of the view the children’s best interests require the stay application be dismissed.  That, in turn, relates to the view I take about the unsatisfactory nature of the children’s current circumstances. 

1. Ms Arthurs has demonstrated she is incapable or unwilling to see their interests from any perspective other than her own.  She has demonstrated she is not able to foster a relationship between the children and their father and nor is Mr Arthurs capable of supporting it.  More importantly, there are concerns about the children’s well-being arising from questions related to the stability of Ms Arthurs’ emotional and/or psychological state.  This is reflected in the absence of any assessment consequent upon her presentation to the mental health unit at the hospital, apparently precipitated by a suicide attempt; it is reflected in her evidence that Mr Arthurs cannot work because she needs to have someone with her all the time; it is reflected in her disproportionate and unrestrained outburst after the delivery of judgment and reaction to the earlier outcome; and it is reflected in what must be assessed as disordered thought processes evident in the presentation of her material. 

1. In deciding whether or not to grant the stay, the best interests of the children are the paramount consideration.  Here, I have given weight to various factors as discussed – the appeal can be said to be arguable, there is no question about Ms Arthurs’ motivation in filing an appeal, it will be heard probably around three months time [unless expedited and heard earlier].  Weight has also been given to the disruption of the status quo for the children on a number of fronts were they to move to their father’s care now before the hearing of the appeal, a situation that would continue at least until the outcome of the appeal.  But I am not satisfied for reasons explained about the children’s present circumstances.  Balancing all of these matters, the children’s interests will be best served by a refusal to grant a stay.  The application will be dismissed. 

Conclusion

1. The children will go into the care of their father immediately.  Ms P agreed it would be appropriate they be informed of the decision and she also agreed to do so.  To that end, I directed at the conclusion of the hearing on Thursday last that Ms Arthurs take the children to the Mediation facility at the Registry at 2pm Tuesday at which time I indicated judgment would be delivered.  I am confident Ms P will undertake that responsibility with her considerable professional expertise and the children will be appropriately reassured before accompanying their father home.  Ms Arthurs’ state is highly unlikely to be conducive to the children seeing her even for a short time before they leave; however, the advisability of that occurring or not falls properly within the discretion of the supervising counsellor. 

1. There are of course other practical considerations, none of which have been addressed, such as the children having available to them some of their belongings which might be some of their clothing, books, school requisites, games, toys and the like.  However, it is expected that matters of this kind will be addressed by parental decisions rather than Court decision.  If some of their belongings, including favourite items of one kind or another are made available, no doubt that will ease the transition to some extent for them.  If nothing is made available, then doubtless they and their father will have to cope with that. 

1. It will be open to Ms Arthurs to appeal from the refusal to grant the stay and it will be open to her also to seek an urgent hearing of that appeal by contacting the appeals Registrar.  In the meantime and subject to any decision to the contrary at appellate level, the children will accompany their father immediately upon delivery of judgment and remain in his care. 

1. For those reasons, the orders are:

2. The orders of 28 February 2006 are discharged.

1. The children T born … 1995 and L born … 1997 are to live with their father, to take effect forthwith. 

1. The children’s contact with their mother is to be as follows:

   (i)the children are to have no contact with their mother [or their step-father, Mr Arthurs] for a period of two (2) months from the date of these orders;

   (ii)upon the expiration of the period referred to in (i) and for a period of a further six (6) months, or such lesser or further period as the parties agree, the children are permitted to have contact with their mother [which may include their step-father and sister G] once per week, provided it is supervised at a recognised Contact Centre and provided further such facilities are available and the Centre’s eligibility requirements are met;

   (iii)upon the expiration of the period referred to in (ii), as agreed between the parents and, failing agreement, as determined by Court order. 

1. The father is permitted:

   (i)to take the children interstate for holidays; and

   (ii)to take the children out of the Commonwealth of Australia to travel to Mauritius for holidays provided he gives the mother one (1) month’s notice of his intention to undertake that travel with the children and provided he gives her details of the departure and arrival times of flights and where they may be contacted in Mauritius. 

1. The father is entitled to retain the children’s current passports and to the extent that passports are to be obtained or renewed, the mother’s consent is dispensed with if not forthcoming within 14 days of a written request to obtain or renew the children’s passports. 

1. Pursuant to s.65L(1) of the Family Law Act 1975, compliance with these orders is to be supervised by a Mediator nominated by the Director of Mediation at the Newcastle Registry of this Court for a period of eight (8) months and the Mediator is to give to the parents such assistance as is reasonably requested by either of them in relation to compliance with and carrying out these orders and any communication with or involvement of the Mediator is to be reportable upon further order of the Court.

1. The child G born … 1993 is to live with her mother. 

2. G is at liberty to have contact with the children T and L and with Mr Lane at reasonable times agreed to by Mr Lane according to arrangements made with him to that effect by G or on her behalf. 

3. The application of the mother for a stay of the orders of 28 February and of the further parenting orders made this day is dismissed. 

1. Pursuant to S65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

   I certify that the previous 58 paragraphs are a true copy of the judgment delivered by the Honourable Justice Moore. 

   Associate:   

Schedule
Orders of 28 February 2006

1. Until further order and subject to compliance with order 2 hereof, the children T born … 1995 and L born … 1997 live with their mother.

2. The children are to have contact with their father (a) initially in the Counselling rooms of the Court after delivery of judgment in the presence of a counsellor and (b) on the first Saturday following judgment from 9am to 4pm by their father collecting them and returning them to their mother’s residence and thereafter as follows:

   (i)during school terms:

   (a)every second weekend commencing 10 March 2006 from 6pm Friday to 6pm Sunday or 6pm Monday if it is a public holiday;

   b)at other times or otherwise as agreed between the parents.

   (ii)during school holidays:

   (c)for the whole of the Easter 2006 school holidays and thereafter one half of each of the school holidays during periods to be agreed and, failing agreement, for the first half in even numbered years and the second half in odd numbered years. 

   d)at other times or otherwise as agreed between the parents. 

   (iii)by telephone

   e)with reasonable frequency for reasonable duration.

3. Contact is to be implemented by their father or his nominee collecting them from their mother’s residence at the beginning of any period and their mother or her nominee collecting them from their father’s residence at the conclusion of any period. 

4. Pursuant to s.65L(1) of the Family Law Act 1975, compliance with order 2 is to be supervised by a Mediator nominated by the Director of Mediation at the Newcastle Registry of this Court and the Mediator is to give to the parents such assistance as is reasonably requested by either of them in relation to compliance with and carrying out these orders and any communication with or involvement of the Mediator is to be reportable upon further order of the Court.

1. The matter is to be listed for mention on a date at the end of April to be advised or earlier upon the request of either party or the supervising Mediator for the purpose of making further orders about the children’s longer term arrangements. 

2. The father is to be permitted to take the children on holidays to Mauritius once per annum provided he gives to the mother reasonable notice of his intention and provides her with details of the flights and contact while in Mauritius. 

3. The child G born … 1993 is to live with her mother. 

4. Pursuant to S65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

………