Love & Shillington (No. 4)

[2007] FamCA 1077

FAMILY COURT OF AUSTRALIA

LOVE & SHILLINGTON (NO. 4) [2007] FamCA 1077

FAMILY LAW – CHILDREN – 3 children 13, 11 and 6 years old– Mother history depression & substance abuse –Children reside with Father, limited contact with Mother – 6 yo child misbehaving – Father sends to Maternal Grandmother – 6 yo reunited with mother – Interim residence in favour of Mother – Father refuses to appear – Fails to prosecute claims – Children separated – Father refuses efforts to enable children to spend time together

APPLICANT: MR LOVE

RESPONDENT: MS SHILLINGTON

INTERVENER: MRS SHILLINGTON

FILE NUMBER: BRF 2102 of 2004

DATE DELIVERED: 21 August 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: The Honourable Justice Jordan

HEARING DATE: 20 & 21 August 2007

REPRESENTATION

THE APPLICANT: No appearance

THE RESPONDENT: Appeared in person

THE INTERVENER: Appeared in person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Leotta

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

DA Family Lawyers, Brisbane, Qld

Orders

1. That all previous orders be discharged.

1. That the elder son, born in January 1994, and the younger son, born in August 1996, live with the Father.

1. That the Father have sole parental responsibility for the elder son, born in January 1994, and the younger son, born in August 1996.

1. That the daughter, born in September 2000, live with the Mother.

1. That the Mother have sole parental responsibility for the daughter, born in September 2007.

1. That the Mother be at liberty to communicate with the elder son, born in January 1994, and the younger son, born in August 1996, in writing by forwarding letters, cards and presents by post to their address and the Father is to ensure that the letters, cards and presents are provided to whom they are addressed.

1. That the Father be at liberty to communicate with the daughter, born in September 2000, in writing by forwarding letters, cards and presents by post to her address and the Mother is to ensure that the letters, cards and presents are provided to whom they are addressed.

1. That each of the parties keep the other informed of a contact address and a contact telephone number, and advise each other of any changes to those details within twenty-four (24) hours of the change occurring, for the purposes of enabling the parents to communicate with the children in accordance with paragraphs 6 and 7 hereof and of enabling the parents to inform one another about any important or urgent matters touching upon the welfare of their children.

1. That the three (3) children spend time with one another at such times as may be agreed to between the parties, but failing agreement for not less than two (2) hours per month or, if monthly is not possible, two (2) hours every six (6) weeks, for periods as nominated by the South Queensland Coast Contact Centre.

1. That for the purposes of the children spending such time together:-

(a)    The Father attend upon the South Queensland Coast Contact Centre within 21 days of today’s date for the purposes of submitting to the South Queensland Coast Contact Centre’s intake requirements.

(b)    The Mother attend upon the South Queensland Coast Contact Centre within 21 days of today’s date for the purposes of submitting to the South Queensland Coast Contact Centre’s intake requirements.

(c)    The Father deliver the elder son and the younger son, to the South Queensland Coast Contact Centre for the purpose of facilitating the children spending time with one another at the time nominated by the South Queensland Coast Contact Centre.

(d)    The Mother deliver the daughter to the South Queensland Coast Contact Centre for the purpose of facilitating the children spending time with one another at the time nominated by the South Queensland Coast Contact Centre.

(e)    The Mother meet the costs of such supervised contact.

(f)     Each of the parties is prohibited from attending with the children during such time the children spend with one another unless the parties reach agreement in writing in relation to any such involvement and provided further that the parties lodge any such written agreement with the Manager of the South Queensland Coast Contact Centre and provided further that any such agreement between the parties is, in turn, subject to the direction of the Manager of the South Queensland Coast Contact Centre.

1. That the Independent Children’s Lawyer be discharged.

1. That pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Jordan delivered this day will for all publication and reporting purposes be referred to as Love & Shillington & Shillington

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF2102 of 2004

MR LOVE

Applicant

And

MS SHILLINGTON

Respondent

And

MRS SHILLINGTON

Intervener

REASONS FOR JUDGMENT

EX TEMPORE

1. Firstly, I should record that, at the commencement of these proceedings, the question of the father's non-attendance was necessarily addressed by the Court and, as part of that exercise and not without some difficulty, the Court ultimately established telephone contact with the father and members of his household.

2. What transpired during the course of that exercise is now an important part of the history of this matter, and I direct that a transcript of that preliminary aspect of the proceedings in full up to the time that the telephone links were disconnected should be transcribed and placed on file. 

3. For the purposes of understanding this judgment, reference to that transcript is likely to be enlightening.

4. In many ways, this quite short case represents one of the most complex and difficult matters I have encountered in 17 years on the Bench.  The story of this case is a troubling and perplexing one.  It concerns the somewhat troubled lives of three young children, an elder son, born in January 1994, a younger son born in August 1996, and a daughter, born in September 2000.

5. It is well-documented that the mother has suffered from a long history of depression and substance abuse, and that this has resulted in the mother being subjected to institutionalisation and other treatment from time to time.  The effects of those conditions have seriously compromised her life, her functioning and her relationship with her children.

6. From time to time, the mother has sought rehabilitation and at times in the past she has failed in those endeavours.  She acknowledges that there necessarily was a very adverse impact upon the children as a consequence of those episodes.

7. She maintains a passionate interest in the welfare of her children and has pursued her relationship with them from time to time.  Unfortunately, that process has been protracted and difficult, and the strains of those exercises upon the father, the mother and, as I say, the children, and indeed the partner of the father and her children, are quite obvious. 

8. Last year during the course of the matter before the Court, orders were made confirming the primary residence of the children with their father and making only limited orders for supervised contact, particularly in relation to the daughter.  The older son has, for some time, expressed strong views opposed to having any ongoing contact with his mother and, in the end result, although she maintains her availability for an ongoing relationship with the older son, the mother perceived that it was necessary to respect his strongly expressed wishes and resort to continuing to hold herself available to the older son when, and if, he is able to resume some relationship with his mother. 

9. The younger son has expressed similar sentiments, but having regard to his age and the mother's concern that the views being expressed by the younger son may not necessarily be his own, she has persisted with her endeavours to have some contact with her son in the belief that it remains in his best interests, notwithstanding the difficulties that he might confront as a result of being required or enabled to see his mother.

10. The mother had been enjoying some limited contact with the daughter, although there is no agreement between the parties about the extent of that, or the success or otherwise of those endeavours. 

11. From that background, there was a most unexpected development at the beginning of this year.  The father reported that he had discovered the daughter had been stealing from the adults in her household.  In much of his material and discussions with counsellors and the like, the father has described the mother as an unhealthy, devious, evil, manipulative woman who has, from time to time, manipulated each of their children and has demonstrated a capacity to even manipulate Government agencies, medical agencies and the entire legal system. 

12. He contends that the daughter was the most recent target for such evil manipulation.  He suggests that the daughter, at the ages of 4 and 5, was, in fact, manipulated by her mother to steal money from the father and his partner.  He suggests that, in the course of that process, the child has stolen substantial sums of money to the disadvantage of the entire family. 

13. That the father would be disturbed by such conduct is entirely understandable.  However, given his own assertion that the daughter is the innocent young child, the victim of devious manipulation by her mother, the father's responses to this discovery are much more difficult to understand and remain most perplexing. 

14. On the evidence that is before me, having discovered the theft and having concluded that the child had been manipulated into that conduct by the mother, the father nevertheless chose to take the daughter to the police station and to report his 6 year old daughter's family theft to the police authorities.

15. Not satisfied with the apparent confessions she made at the police station, the father and his partner conducted and recorded interrogation of the 6 year old child by his partner, an exercise which was apparently designed to extract and record further confessions.

16. The father's partner, who had been assisting in the care of the children and had behaved as, and had been treated by all children in the household as, the mother of the household, and had been called "Mum" by all five children in the household, apparently chose to declare to the daughter that, as a result of her manipulated theft, she had thereafter forfeited her right to call her "Mum". 

17. Further, the father and his partner determined that further sanction was clearly required for this 6 year old child, and removed her from the home and required her to sleep in a caravan in the long grass at the back of the yard, without toilet facilities.

18. Not satisfied with those sanctions, the father then contacted the mother's sister and asked her to take the daughter into her care.  When she declined, the father then contacted the maternal grandmother in M and asked her to take the child.  The maternal grandmother agreed to do so. 

19. There is an issue between the maternal grandmother and the father as to the terms of that placement.  The grandmother indicates that she was never informed of any suggestion that this was a temporary arrangement, and that she took it as permanent.  The father says that it was only ever intended to be temporary.  Interestingly, whether it be permanent or temporary, the father's explanation for his decision to send the daughter away from her father, her mother figure and her brothers at the South Queensland Coast to M was because the father and his partner needed some respite from this innocent 6 year old.

20. The father has not informed the Court how he explained this placement in M to his young daughter.  It is difficult to imagine how it could be adequately explained to a 6 year old so recently accused of stealing and taken to the police and excommunicated to the back yard.

21. It is highly likely that all of these events were difficult, confusing and troubling for this very young child.  It is difficult to imagine that she could have perceived her banishment to M as anything other than further punishment and/or abandonment of her to her grandmother.  All of this in the background of a turn of events which the father, himself, says is not the responsibility of his innocent 6 year old child, but the responsibility of an unwell, manipulative adult.  To this day, the father presents as believing his treatment of his daughter was reasonable and entirely justified and he remains totally mystified by the expressed concerns of the counsellor, the Independent Children’s Lawyer and the Court.

22. Not surprisingly, Ms W, a social worker who has been retained by the Independent Children's Lawyer from time to time to assist the Independent Children's Lawyer, the Court and this family, and to conduct investigations, identified that the daughter would indeed have been very hurt and confused by the events of January 2007.  Not surprisingly, when Ms W spoke to the daughter, she complained of her treatment at the hands of the father and his partner, and she demonstrated some anxiety about contact with the father, and the father’s partner in particular, in the future.

23. Given that turn of events and the history of the mother's difficulties in functioning and parenting, Ms W recommended great caution in terms of how the matter might progress in the early part of this year.  She said, given the startling events of January of 2007, it was essential that the daughter be provided with as much stability as possible and limited exposure to the challenges which might be presented to her by unstructured contact with the father and the father’s partner, given the conduct, history and presentation of each of the parents.

24. Equally puzzling, in terms of the review of the father's decision-making in January of 2007, has been his subsequent reaction or lack of it.  Ms W conducted interviews - I believe it was in February of this year - and she reports that the father was, at that time, affirming that the daughter was not welcome in his household as long as she was having contact with her mother.  He was indicating that he was not prepared to take the daughter, but that he did not want her to see the mother.  Remarkably, he was to go on to suggest to Ms W that the daughter, who had at that stage just settled into her grandmother's home, should be removed from M and placed, not with him, but in some foster care.

25. One can only begin to imagine what further harm may have been visited upon the innocent daughter if that further burden or sanction had been imposed upon her.  Frankly, I cannot understand a father's thought processes in suggesting that treatment for his own innocent daughter.

26. Equally troubling have been the father's responses to the whole legal process which was set in train by the father's own decisions in January of 2007 to send his young daughter to M. 

27. The mother pressed claims for contact with the daughter and the boys, or the younger son in particular.  She flagged an intention to seek orders to have the daughter placed in her primary care.  In doing so, she acknowledged her past difficulties and informed the Court that she was actively pursuing rehabilitation programs.  The Independent Children's Lawyer continued to represent the interests of the children, the maternal grandmother intervened in the proceedings, and the father remained a party.  However, there were multiple appearances, multiple applications and multiple orders all dealing with the placement and future of the father's daughter. 

28. Notwithstanding that he lives nearby on the South Queensland Coast, he not once saw fit to travel the one hour to Brisbane to attend in person at the hearing of these matters touching upon his daughter's welfare.  He refused to appear by any method other than telephone-link.  On one occasion, he even declined the opportunity to be connected by telephone.  On other occasions, the processes before the Court were periodically disrupted by disconnections which appeared untimely, to say the least.  He refused to attend upon Ms W personally for the purposes of the first interview, as a result of which she had to undertake a much less satisfactory artificial exercise over the telephone. 

29. The father would assert, on the one hand, that it was cruel that these children be kept apart, but when orders were made to facilitate time together, he failed to make the boys available in direct contravention of those orders.  At one time, he was refusing to travel to Ipswich from the South Queensland Coast to facilitate contact, citing financial reasons. 

30. He failed to file material as ordered or on time, and he has to this day failed to file essential material from his partner, who has been a key player in the daughter’s life in the past, was a key player in the events of January of 2007, and obviously would be a key player in the future in terms of the child’s relationship with members of her household.

31. When the matter was referred to Ms W for an update for the purposes of the final hearing, which has been set for some time, the father again refused to attend upon Ms W to discuss essential matters relating to his daughter's welfare and, as a result, Ms W had to travel to the father.  I note that, at this time, the father was on long leave and, therefore, fully able to accommodate Ms W in Brisbane had he been so motivated.

32. The matter, as I say, has been listed for some months for a five-day hearing commencing today.  The father, professing intense interest in the welfare of his children and great concern about the daughter’s subsequent placement with her mother, failed to attend at that hearing to determine his children's welfare and future. 

33. When he did not attend, the Court, of its own volition, made every effort to contact him by telephone.  Initially, the phones were engaged, and it was only later on in the first morning that telephone contact was established.  When contacted, the father indicated he had no intention of attending personally and no intention of participating by phone.  He had no intention of making submissions to the Court and would leave the matter to the Independent Children's Lawyer and the Court. 

34. He was then asked would he personally convey those matters to the trial Judge, as those intimations were made by the father to my Court Officer, who was pursuing these avenues whilst the matter was stood down.  The father apparently indicated he would.  When the Court was reconvened, however, some short time later, he did not take the phone call, but rather his partner did, and she asserted that the father was then unwell and not able to come to the phone.  She purported to speak on his behalf and affirmed that the father did not intend to participate in the trial, he did not wish to make any submissions or be heard during the course of the proceedings.

35. During the course of her representations to the Court, it was made clear to her that the continued absence of the father and his partner may compromise the prospects of the Court being able to make appropriate orders for contact between the daughter and her brothers, and the daughter and her father.  Notwithstanding an assertion by the partner that that aspect was clearly understood by both of them, the partner continued to vehemently resist any suggestion that the father should attend or be forced to attend, and that vehemence became even more intense when the prospect of requiring attendance by use of a subpoena was raised.

36. As I say, I really find it impossible to understand the father's point of view in this case.  He says he loves his daughter dearly, he says he is very concerned for her welfare.  He says he is particularly concerned now that the daughter is living with a woman who he regards as evil, mentally unstable and an alcoholic.  Notwithstanding those very legitimate and understandable assertions, he files no application to have the daughter removed from the mother or returned to his care, he does not have the interest to even appear in these proceedings or place evidence before the Court.  He does not even want to be heard about what should happen for his daughter in the future. 

1. He has told Ms W and the Court that he will not comply with any orders requiring supervision.  He has demonstrated in the past that he will not comply with any orders that he disagrees with.  He has indicated clearly that he would not comply with any orders for supervision, even if they were only designed as an interim measure to enable relationships to be re-established. 

2. During the course of the telephone link, the father's partner, who said she was speaking on behalf of each of them, said they just want to be left alone, they want to focus on the four children in their household and, despite the protests about wanting to see the daughter, the father, by his words, actions and inactions, leaves me in a position where it is very difficult to escape the conclusion that he has, in fact, abandoned his relationship with his daughter.

3. Certainly, his own conduct indicates that he is not, in fact, committed to do whatever may be necessary to have his relationship with his daughter and the relationship between the children, preserved and fostered.  I have no doubt that the father is likely to be true to his threats and that he will not comply with any order he does not agree with. 

4. The outcome, as a consequence of this turn of events, is tragic for these three children who have been dealing with very significant challenges thrown their way as a consequence of their mother's health and substance abuse problems, as a consequence of their parents' separation, as a consequence of their parents' ongoing hostilities and inability to communicate and co-parent, and finally as a result of the father's intransigence.  The father accepts no responsibility for what has happened to the daughter and accepts no responsibility for the children being kept apart.

5. What the Court is dealing with, is one parent who says she is prepared to do whatever is necessary to ensure the children have the opportunity to spend time together and to retain a relationship with one another, and on the other hand the Court is dealing with a father who will resist all efforts that are not precisely on the terms he dictates. 

6. The consequence to this time, and despite the efforts of the mother, the Independent Children's Lawyer and the Court, is that the children are being kept apart, and it is one of the few areas of common ground in this case that the children love one another, miss one another and need one another.  Sadly, the father will not participate in the processes determined by this Court which were designed to bring to an end the sad situation where these children are separated.

7. The father blames the mother, Ms W, the Independent Children's Lawyer and the Court for the current difficulties.  To state the obvious, neither the mother, Ms W, the Independent Children's Lawyer or this Court made any of the decisions the father made to sanction the daughter in January of 2007, and it was not the decision of the mother, Ms W, the Independent Children's Lawyer or the Court to send the daughter to M, which has indeed been the catalyst for the current problems.  Certainly, none of those people have prevented the father from attending at Court or from participating in the processes which have been designed to bring the children together, albeit on terms that the father may not like.

8. It is in that background that the Court is left to examine the options available to it, and a large part of the last two days has really been spent identifying possibilities, reviewing the problems for the children attached to those possibilities and, to a large extent, despairing about the very bad options the Court is being presented with. 

9. I am satisfied everyone in this Court is concerned that it is indeed very unfair upon these children that they are not able to see one another and that they are not able to have normal, healthy relations with each of their parents. 

10. The difficulty in this case is, how does one redress that unfairness, given the realities of the circumstances of each of the parties and of the children, and given the reality, in particular, that the father is stating an intention not to participate in any of the processes of reconciliation and reunification which might be recommended by Ms W, the Independent Children's lawyer or prescribed by the Court.

11. In terms of those options, the Independent Children's Lawyer provided written submissions which were carefully considered and constructed.  Given the older son’s age, the focus of the bulk of the submissions of the Independent Children's Lawyer were on the prospect of the younger son having ongoing contact with his mother, the daughter having contact with the father, and the children having contact with one another. 

12. In the course of those submissions, the Independent Children's Lawyer reminds the Court of the Objects and Principles of this Act, some of which warrant restating in the context of this case.  The Objects of the Act are to ensure that the best interests of children are met by:

    (a)      ensuring that children have the benefit of both of their parents   having a meaningful involvement in their lives to the maximum           extent consistent with the best interests of the child; and

    (b)      protecting children from physical and psychological harm, from          being subjected to, or exposed to, abuse, neglect or family violence;       and

    (c)      ensuring that children receive adequate and proper parenting to help      them achieve their full potential; and

    (d)      ensuring that parents fulfil their duties and meet their      responsibilities concerning the care, welfare and development of    their children.

13. The Principles underlying those Objects are, except when it would be contrary to the children's interests:

    (a)      children have a right to know and be cared for by both their parents,      regardless of whether their parents are married or separated;

    (b)      children have a right to spend time on a regular basis with, and   communicate on a regular basis with, both their parents and other      people of significance; and

    (c)      parents jointly share duties and responsibilities concerning the care,     welfare and development of their children.

14. The submissions also draw the Court's attention to the presumptions in favour of shared parental responsibility. 

15. Sadly, in this case the evidence draws the Court to the firm conclusion that it is not in the children's best interests, and not even viable, to contemplate shared parental responsibility.

16. There is abject mistrust between the parties, there is an abject inability to communicate, there is a history and a tangible presence of antipathy from members of both households, one to the other, and not surprisingly, particularly the boys at their age have been affected by, and embroiled in, this conflict and they are now expressing very strong views against a relationship with their mother.

17. All of those ingredients suggest that the prospect of the mother and father co-parenting is entirely impossible, and the mother is not pressing for a caring order in relation to the boys.  She is adopting a realistic attitude and the reality is that, at least for the time being, these boys are going to be resident with their father and it is appropriate that he bear responsibility for their care. 

18. Similarly, at this stage the father has not pressed before me any application to have the daughter reside with him or to share in parental responsibility.  The daughter is and will continue to reside with her mother and, again, it is simply not viable to have the mother consult and confer with the father about her decisions from day to day about the daughter. 

19. It is really a question of turning to the issues of the time the children spend with one another and any time they spend with their parents.  The mother wants to spend time with the younger son, whilst at the same time acknowledging the difficult circumstances he is in and acknowledges his stated wishes.  She says, however, that it is important for the younger son that he be given that opportunity to spend time with her so that he can do some reality checking of his own and, as it were, satisfy himself that his mother is well and not the type of person as described by members in the father's household.

20. As to the children, the mother simply says that their right to know one another, to have a relationship with one another and to spend time with one another must override all of the difficulties in this case.  She would say that, whatever be the difficulties and differences between the parents, and between the parents and individual children, the children should not be deprived of their time with, and relationship with, one another.  She says they love one another, miss one another and need one another, and that their development will be harmed if they are deprived of the opportunity to spend time with one another.

21. At the same time, she acknowledges that the father is unlikely to comply with any orders requiring him to bring the children together, particularly at a contact centre.  The mother says that she agrees that it is not viable, at this time, to have any contact supervised by the father or his partner, as that prospect would be problematic for the daughter, and the mother, herself, would have grave concerns about what might be said and done by the father and/or the father’s partner in the absence of proper, structured, supervised contact.  As I say, she acknowledges that the father is unlikely to provide the children for any contact at a contact centre.  She says that she does not want to involve the authorities and the police attending upon the children's home to remove them from the home and forcibly take them to a contact centre.

22. However, she says that the father should not be able to dictate terms to the Court and be the sole arbiter, as it were, of what is in the best interests of the children in his care.   She says the Court should not be swayed by the prospect of the father's threats and put this matter in the too-hard basket. 

23. For his part, counsel for the Independent Children's Lawyer starts from the premise based in reality that it is highly unlikely that the father will comply with any orders designed to bring the children together at a contact centre.  Certainly, in relation to the younger son and contact with the mother, I think there can be little doubt that he will not comply, and one could not have much more confidence in terms of the prospect of him providing the boys for contact with the daughter at a contact centre.  The Independent Children's Lawyer therefore concludes that, without compulsion, the contact will not occur, and her counsel then examined the consequences for the children if, indeed, there is compulsion.

24. He submits that the prospect of engaging in such an exercise would cause the younger son stress and would be against his expressed wishes, and highlights the evidence of Ms W, which was to the effect that there is a highly likely prospect that the younger son would experience resentment and that any attendance for contact with the mother would be likely to undermine the younger son’s relationship with his brother, his father and his father’s partner.  Ms W also raised a concern that the father and his partner might begin to view the younger son in the same way as they did the daughter, that is, as being influenced by the mother.  The younger son, himself, has said that, if the Court ordered him to attend on contact, "I just wouldn't go."  Ms W said that it is important that the younger son be listened to and she is very concerned about the prospect of disempowering him, particularly in his current vulnerable position. 

25. I am satisfied that it would be very problematic for the younger son to be treated in some different way to his older brother.  He would perceive that his older brother's wishes were listened to and respected and that his wishes were not listened to and that he was not respected.  Given his vulnerabilities and the difficulty of his situation, that prospect might be quite devastating indeed.

26. Of course, the mother suspects that the younger son has come under the influence of his father, his father’s partner and, perhaps to a lesser extent, the older son, and Ms W addressed that, and she acknowledged that there is that possibility, if not likelihood.  At the same time, Ms W expressed the view that the boys had adopted their positions largely because of their own experiences of their mother and her behaviour whilst drinking, and that is another problem in this case.  Whatever be any adverse influence by the father and his partner in terms of denigration of the mother, those influences do not, in fact, occur in a vacuum which might cause the children to question their father's assessments.  Some of the information would be a reflection of their own experiences, their own disappointments and their own hurt as a result of the mother's difficulties and relapses from time to time in the past.  In those circumstances, it is impossible to accept that the views expressed by the boys are entirely fanciful and induced by adult influence.  They are necessarily borne of a combination of factors apparent in the history of this case.

27. Given the gravity of the younger son’s circumstances, I agree that it is essential that I place a great deal of weight on his expressed wishes and, in this case, all the more so because of the highly vulnerable position he finds himself in in the father's household.

28. In the end result, in terms of the prospect of the younger son having contact with his mother imposed by Court orders, the Independent Children's Lawyer submits that, on balance, the likely harm to be caused to the younger son is such as to justify, reluctantly, a departure from the Objects and Principles which would ordinarily ensure that the younger son has an opportunity to spend time with his mother.  I have said earlier in this judgment that the challenges thrown at these children – and, in this context, at the younger son in particular at the ripe old age of 11 - are really difficult to comprehend.  That he is managing to function reasonably well at school is surprising to all of us.  The mother offers the proposition that maybe school is a sanctuary and that it is not indicative of well-being at home. 

29. I would be concerned about making any orders which may undermine whatever tenuous stability he has at home, and I am satisfied that an order that singled him out and made him have contact with his mother against his wishes would compromise his relationship with his brother, with his father and with his father’s partner, and that is the last thing he needs. 

30. The reality at this time for the younger son is that he is going to live with his father.  As unpleasant and difficult a prospect as it is to say that I cannot make formal orders compelling him to have contact with his mother, again, on balance, I am of the view that the downside of that outcome is, perhaps, less significant for the younger son at this stage of his life, than the likely downsides of singling him out, compelling him to go against his wishes, not respecting his wishes and leaving him with a damaged relationship with his father, brother and other members of the household.

31. I have reluctantly also come to the same conclusion as the Independent Children's Lawyer on that issue.  I fully respect and understand the mother's position.  I have a great deal of sympathy and respect for what she has to say but, of course, my focus is on what is the best outcome, or what is the least bad outcome for the younger son.  They are each bad in terms of consequences, that is, failing to make orders, or making orders compelling him to attend against his wishes, and, on balance, I am satisfied that the least bad alternative is not to make the orders which would compel him to attend.

32. In terms of the mother's application to have the children attend at contact together, I note that, like everyone else, the father asserts that the children should spend time together.  He says, like the mother, they miss one another, they need one another, they will enjoy time together and they should benefit from it.  As I observed earlier, he has held others, including the Court, responsible for the fact that the children are not given the opportunity to spend time together.  I am concerned that, if I fail to make orders facilitating contact between the children, amongst the many other concerns I would have about that outcome is that the father would continue to blame the mother, the Independent Children's Lawyer and the Court for keeping these children apart and, perhaps, choose to state and reinforce that perception to the children. 

33. I propose to largely adopt the propositions put forward by the mother in this regard.  I propose to make orders designed to facilitate contact between the children to give the children the opportunity to spend time together, and to therefore place responsibility fairly and squarely upon the father if he cannot and will not make this work.  The mother is not standing in the way of the children spending time together.  This Court is not standing in the way of the children spending time together.  The Court will make orders which will enable it to happen.  It will be up to the father.  Be it on his head if he fails to comply with these orders and keeps these children apart.

34. Sadly, the reality is that the difficulties, the logistics and the finances make the frequency and duration of any contact quite limited.  I am satisfied that it is not viable or appropriate that the mother supervise contact between the three children.  If the mother is appointed as supervisor, it compromises the position of the older son and the younger son, who are saying they do not want to spend time with their mother.  It also enables the father to say that he would not comply out of respect for his children's wishes and/or out of his concern about the mother's adverse influence upon the children. 

35. Similarly, I am satisfied it is not appropriate that the father supervise contact between the three children.  I accept, given the events of January of 2007 and the father's failure to take up any opportunities for contact with his daughter since that time, that the daughter would indeed be troubled, confused and perhaps apprehensive about being brought into contact with her estranged father.  I take the view that it would be necessary, for the daughter’s sake, that she be given the security of some independent supervisor during some reintroduction process. 

36. I also accept that, in the same way that the father has legitimate concerns about the mother's capacity to care for all three children if she was the supervisor, the mother has legitimate concerns about how the father might behave and what he might say if he were the sole supervisor. 

37. I agree with the recommendations of Ms W that any reintroduction of these children to one another would have to be supervised at a contact centre, there being no other viable option put forward by the parties, or apparent to the Independent Children's Lawyer.

38. The mother has indicated that, notwithstanding her comparatively poor financial circumstances, she will meet the significant costs associated with contact for the children at a contact centre. 

39. There is evidence before the Court from Ms B, the Manager of the South Queensland Coast Contact Centre, that the children could have contact with one another on a fortnightly basis supervised at the contact centre, or on about a six-weekly basis supervised off-site.  The mother would like the children to have the opportunity to spend some time together at the contact centre initially, and would then like to provide them with the opportunity to spend time together off-site.

40. Ms B indicated that she could provide fortnightly contact on-site and contact once per six weeks or thereabouts off-site, subject to the directions of the clinician attached to the contact centre and subject to availability. 

41. Ms B indicated that it would be necessary for each of the parties to undertake an intake process, and before the contact centre would contemplate off-site supervision there needs to be at least three on-site exercises.

1. I want to make it clear that what I am putting in place is the bare minimum designed to give the children some opportunity to spend some time together.  I hope that at some time in the not too distant future the olive branch that is held out by the mother - which is, it needs to be understood, contingent upon others developing some trust in her - will be taken up by the father and that, for the sake of their children, the parents may be able to find better ways for the children to have a relationship with one another.  This is designed to provide a framework for reintroduction and a starting point if the contact at a contact centre progresses positively for the children.  

2. I therefore propose to order:

ORDERS DELIVERED

1. Yes, I will make that order. 

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: