MAIRIE & MALAK

[2011] FamCA 891

FAMILY COURT OF AUSTRALIA

MAIRIE & MALAK [2011] FamCA 891

FAMILY LAW – CHILDREN – supervision of telephone communication where father in prison or remand for sexual assault charge relating to a child of a different relationship – Overseas travel by mother and children opposed by father – Application granted

Family Law Act 1975 (Cth)

Pishke & Rupp; Bannon & Rupp [2010] FamCA 632
Cotton & Cotton (1983) FLC 91-330 at 78,252
Loddington & Derringford (No. 2) [2008] FamCA 925

APPLICANT: Ms Mairie

RESPONDENT: Mr Malak

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2355 of 2010

DATE DELIVERED: 24 November 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Laidlaw

SOLICITOR FOR THE APPLICANT: Rigoli Lawyers

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr O’Connell

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

IT IS ORDERED

1. THAT until further order, the father’s communication by telephone with the children E and D is suspended.

2. THAT the mother has permission to remove the children D born … May 2004 and E born … May 2004 from the Commonwealth of Australia for the purposes of holidays.

3. THAT pursuant to s 11 of the Australian Passports Act 2005, the Minister may issue an Australian Passport to the children D born … May 2004 and E born … May 2004 without the consent of their father, the said children having permission of the Court to travel internationally.

4. THAT until further order, the father may send to the children letters, cards and gifts which subject to their content being appropriate to their age, shall be passed on to them by the mother.

5. THAT the mother provide instructions to the Principal of the children’s school to send to the father upon his request and at his expense, school reports and photographs.

6. THAT all extant applications are otherwise dismissed.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the mother and the Independent Children’s Lawyer.

2. THAT the Independent Children’s Lawyer is discharged.

3. Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mairie & Malak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 2355 of 2010

Ms Mairie

Applicant

And

Mr Malak

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. These reasons concern parenting orders for twin boys D and E who are 7 years of age. 

2. There are two issues:  first, should telephone contact between the father and those children continue whilst he is in prison;  and second, should the children be permitted to leave Australia for a holiday with their mother.

3. For the reasons that follow, the telephone contact should be suspended and the children should be permitted to leave Australia.

4. Ms Mairie (the mother) and Mr Malak (the father) are not strangers to family litigation and this is another chapter in their lives.  The relationship between them ended in 2005.

5. Subsequent to the end of the relationship, the father remarried and from that union, there is a 3 year old child.

6. The father is currently in prison on remand awaiting a criminal trial for sexually assaulting that three year old child.  He has told this Court that he intends to plead not guilty.  Pending the outcome of his trial, he wants to continue his relationship with D and E by weekly telephone communication.  As will be apparent, that telephone communication was supposed to have occurred pursuant to previous orders of this Court so to an extent, his current imprisonment becomes the new issue.  Is it just a change of location? or something more serious?

7. For her part, the mother wanted to have an overseas holiday.  She preferred countries such as Thailand, Singapore, Indonesia and New Zealand.  Which one depended upon the cost.  The father opposed her trip saying she would not return to Australia.  As a fallback position, the father said that the mother should lodge a $10,000 security.  There were other orders sought by the father and I shall refer to those in these reasons.

8. That simple outline does no justice to the complexity of this case.  The Court’s file contains many documents and it is kept in two large boxes.

9. For the purposes of this hearing, the parties relied upon the documents referred to in the annexure to these reasons.

10. The mother was the applicant and the father the respondent.  By an Order of the Court, an Independent Children’s Lawyer was appointed.  The mother and the Independent Children’s Lawyer were represented by Counsel.  The father represented himself and did so by telephone by arrangement with the relevant prison authority.  To the extent that it is necessary to say so, the father is an experienced self represented litigant to whom I explained the process.  His cross examination and final address indicated he understood how the legal process operated.  His lack of legal representation and his absence by being in prison, did not disadvantage him. 

11. Before dealing with the background, there is one important fact to mention concerning the nature of this hearing.  The initiating parenting proceedings were listed before me for final hearing in September 2011.  The father sought an adjournment of that hearing on the basis of his imprisonment and inability to have legal representation.  I granted his application over opposition from the mother but suspended the relevant parenting orders mostly out of practicability because the father was unable to comply.  I then adjourned the proceedings to 17 November 2011 for an interim hearing to determine the issues which I have mentioned above.  I ordered each party to address those interim issues and required them to file material.  Thus, to the extent that the hearing was an interim one, it was intended to deal with the loose ends. 

12. Until the father’s predicament is determined, there is no point in any further hearing because the geographic distance between the parties is enormous but in addition, the father does not want the two children to know that he is in prison.  Thus, the Orders I now make will leave the parties in a position where a revisiting of parenting issues may be made after the father’s criminal proceedings are concluded.  It may be at that time however, the problem does not simply go away for the reasons set out below.

13. The starting point for the background is the Judgment of Brown J delivered on 8 April 2009.  Her Honour heard proceedings over six days in 2008 and 2009 and delivered Orders with extensive reasons.  Each party requested that I read those reasons.  It will be noted that these were not the first contested and concluded proceedings between the parties but that will be evident below.

14. Relevantly, Brown J’s Orders were:

    (2)That the children [C] born … April, 2000, and twins [D] and [E] born … May, 2004 live with the mother and she have sole parental responsibility for them.

    The child C then aged 9 and now aged 11, is also the father’s daughter.

    (3)That the father’s application to spend time and communicate with [C] be dismissed save that [C] be at liberty to communicate with the father by cards/letters or telephone, initiated by her.

    (4)That the orders made on 23 January, 2008 which provide for [D] and [E] to spend time with the father be discharged.

    The Order made on 23 January 2008 provided for the father to have no contact with C but some contact with the boys on the basis that their relationship was to be developed.
    Brown J replaced the 2008 orders with a strict supervised regime of contact which was to build up very slowly and which was to culminate in what might be described as a normal parental care arrangement by January 2011.  It was normal to the extent that handovers were still largely to occur at a contact centre.  Those orders provided:

    (5)That [D] and [E] spend time with the father as follows, and in these orders a reference to [Y Centre] is a reference to the supervised changeover facility offered by [Y Centre]:

    (a)for five hours on Saturday 16 May, 2009 between 10:00 am. and 3:00 pm. or such other times as can be accommodated by [Y Centre];

    (b)for six hours on Saturday 18 July, 2009 between 10:00 am. and 4:00 pm. or such other times as can be accommodated by [Y Centre];

    (c)for six hours on Saturday19 September, 2009 between 10:00 am. and 4:00 pm. or such other times as can be accommodated by [Y Centre];

    (d)for seven hours on Saturday 21 November, 2009 between 10:00 am. and 5:00 pm. or such other times as can be accommodated by [Y Centre];

    (e)on the third weekend in January, March, May and July 2010 :

    (i)from 10:00 am. until 5:00 pm. on Saturday, or such other times as can be accommodated by [Y Centre];  and

    (ii)from 10:00 am. until 5:00 pm. on Sunday or such other times as can be accommodated by [Y Centre];

    (f)on the third weekend in September and November 2010, from 10:00 am. on Saturday until 5:00 pm. on Sunday or such other times as can be accommodated by [Y Centre];

    (g)from 10:00 am. on 4 January, 2011 until 5:00 pm. on 8 January, 2011;

    (h)on the fourth weekend in each school term in 2011, from 10:00 am. Saturday until 5:00 pm. Sunday;

    (i)for five days and four nights in the first term school holidays in 2011, commencing on a date to be agreed and, failing agreement, on the first Sunday of the holiday period;

    (j)for six days (including five nights) in the second term school holidays in 2011, commencing on a date to be agreed and, failing agreement, on the first Sunday of the holiday period;

    (k)for eight days (seven nights) in the third term school holidays in 2011, commencing on a date to be agreed and, failing agreement, on the first Sunday of the holiday period;

    (l)for ten days (nine nights) in the summer school holidays in January 2012 at times to be agreed and, failing agreement, to commence at 10:00 am. on 4 January, 2012 and conclude at 5:00 pm. on 14 January, 2012;

    (m)thereafter :

    (i)for one half of each school term holiday period at times to be agreed and, failing agreement, the first half;

    (ii)for two weeks in each summer school holiday period at times to be agreed and, failing agreement :

    (x)commencing on Christmas Eve in 2012 and each alternate year thereafter;  and

    (y)commencing on 9 January, 2014 and each alternate year thereafter;  and

    (iii)at such other times as are agreed between the parties.

    (16)That the father be at liberty to send cards and small gifts to [C], [D] and [E] by post on their birthdays and at Christmas and Easter and the mother ensure any such cards and gifts are delivered to the children.

    (17)That the father be at liberty to obtain, at his expense (if any) :

    (a)a copy of each school report for [C], [D] and [E];  and

    (b)a copy of each order form for school photos of [C], [D] and [E];

    and this order shall stand as authority to the principal of each school attended by [C], [D] and [E] from time to time to comply with such requests. 

    Brown J made restrictive orders about the father’s ability to contact or attend the children’s school. 
    Her Honour’s Judgment ran to 200 paragraphs.  What follows are, for my purposes, Her Honour’s observations relevant to the proceedings before me:

    §in 2005, proceedings in Adelaide involved the mother alleging the father sexually abused C, physically abused her, accessed child pornography and was emotionally abusive.  The mother sought the father have no contact with any of the children;

    §the trial in Adelaide before Murray J took sixteen days;

    §Murray J ordered the children live with the mother and the father have infrequent supervised time with the boys but no time with C;

    §in 2006, that is, after the orders of Murray J, the mother went to the Gatehouse Centre in Melbourne with C who alleged sexual abuse by the father and that the Gatehouse social worker accepted that it had occurred.

    Brown J said:

    (10)From the mother’s perspective, Gatehouse had given her what Murray J’s judgment had not, which was proof (in her eyes) that [C] had been sexually abused.  Armed with that proof, she sought to achieve what she had failed to achieve before Murray J., which was no contact at all between the father and the twins.

    It must be said that in the hearing before me, Counsel for the mother conceded that nothing had changed.

15. Returning then to my synopsis of the reasons of Brown J:

    §the mother was relentless in her campaign to prove the father had sexually abused C and was prepared to do and say anything to achieve her aims;

    §the mother invented an allegation that the father took a photograph of D’s penis and it was transparently obvious that it was done to undermine the father’s relationship with the twins;

    §a Court could have no confidence in what the mother said;

    §the father had interrogated the twins which was a form of harassment and implicated them in the parental conflict;

    §the father presented facts which were untrue but was otherwise a more reliable witness than the mother;

    §the father had a commitment to develop a relationship with the twins.

16. It is important to digress and look at what Brown J said about the father’s then new wife who is now the complainant and main prosecution witness in his pending criminal trial:

    22.[The stepmother] was an impressive witness;  she made appropriate concessions, answered questions directly and without qualification and presented as a thoughtful woman.  I find her a witness of truth.  She told the court :  “I won’t lie for him (the father)” and I accept that is her position.

17. Brown J referred to the observations of the contact centre staff about the relationship of the father and the twins after the orders of Murray J which indicated no sign of discomfort or anxiety but rather that the father handled them well.  However, that was under the watchful eye of the contact centre.  When a visit occurred which was unsupervised, the father “interrogated” the twins and taped the conversation.  I do not propose to set out the detail but Her Honour said:

    158.During the period of unsupervised time on 20 September the father interrogated [D] and [E];  the questioning arose because the children had said something to him about their grandmother hitting them on the previous occasion.  The father tendered the tape recording he made of the conversation, something a more insightful man would not have done, as it reflects poorly on him.  Most of the questions related to the boys being hit by their grandmother, a few about being hit by their mother and some about the occupants of their home.  The father asked the boys “does mummy say at any time she is going to try and put me in gaol?”, to which he got one no and one yes in answer.  Asked about whether she said anything else about [C], both boys said no;  asked whether [C] asked to see him, both said yes.  The father then resumed his questioning about smacking before moving to the allegation of the photo in the toilet.  The exchange went as follows : 

    And were you boys both in the toilet the same time the last time the last time we went to McDonald’s?
    Yes
    Who told you I took photos of you?
    Indistinct
    Did mum say I took a photo of you with your pants off?  Can’t hear you – say yes or no.
    Yes
    [E] were you in the toilet with [D] when we went to McDonald’s the last time?
    You were.  Did you see me take any photos – yes or no?
    No
    What about you [E], did mummy say to you [E] that I took a photo of [D]?
    Yep

    She did.  OK.  That’s enough of that.  It doesn’t matter any more.

    159.It is understandable that the father was angry and frustrated about the photo allegation, which was blatantly strategic and completely untrue.  Nevertheless, this interrogation was unnecessary and potentially stressful and implicated the boys in the dispute between their parents.

    That finding is of concern in these proceedings.  However, Her Honour went on to say:

    176.I am satisfied the father has the capacity to provide for the children’s needs if they were to spend holiday time with him, as proposed.

    180.The mother was not able to accept that [D] and [E] benefited by the existing relationship.  She agreed that if that relationship ceased, they could suffer some emotional harm in the short term but saw that as essential to protect them against the sexual abuse she alleged was occurring;  she said he “shouldn’t have time if he is sexually abusing the children”.  The proposal advanced on her behalf in final submissions cuts across that evidence. 

    189.This family has been involved in litigation since 2005.  The allegations each made against the other in the course of this round of proceedings are illustrative of the continuing hostility.  It is probable both parents have engaged in evidence-gathering and have been prepared to put pressure on the children and sacrifice the children’s best interests to achieve that.  That is not good for the children, who should not be burdened with these adult concerns.

18. It will be clear Brown J saw the prospect of a normal parental child relationship between the twins and the father but that it required time to develop.  As the mother would have me believe, it has never got off the ground and when the father has spoken to the children, they are reluctant and resistant and there is a problem afterwards.  From the father’s perspective, he says that he has heard the children scrambling to get to speak to him and they are excited about the discussions.

19. The last time the father spoke to the children was in May 2011.  The uncontroversial facts are as follows.

20. On … May 2011, the father was interviewed by police, arrested and charged.  On the following morning, he was taken before the local court where a Magistrate remanded him in custody.  His evidence is that he made an application for bail and it was refused.

21. Subsequent to … May 2011, the father has remained in custody and has made no further application for bail.  His evidence was that he did not fully understand what had happened but that there is a prospect that his new lawyers will make an application for bail in the Supreme Court.  He said that he had appeared before the same Magistrate on a number of occasions subsequent to May 2011.  From that, I inferred that no new circumstance had been suggested to the Magistrate that would have justified a further application for bail. 

22. To compound the confusion further, the father said that on … November 2011, he appeared before the same Magistrate again at which time, his lawyer waived his right of committal hearing and the Magistrate said that on … December 2011, he would have his trial date fixed.  He was unclear as to whether it was the Magistrate who was fixing the trial date or some prosecutorial authority. 

23. Doing the best he could, the father said his understanding was that his trial was some time in 2012.  He confirmed that the only witness was his wife.  He said that he had not seen the evidence of the police.  He impressed upon me that there was in his mind the prospect that the charges would be dropped or that he would be acquitted. 

1. It became clear from the mother’s evidence that immediately after being aware of the father being charged, she terminated any contact between he and the children.  Any relationship between she and the father’s wife remained unexplored.

2. I conclude from the seriousness of the nature of the charge, the fact that bail has been refused, that no subsequent application for bail has been made and that the primary accusation is made by the woman whom Brown J referred to in very positive terms, the matter of any relationship between the father and the children in the interim period requires careful thought.

3. The mother’s case was conducted on the basis that she did not want the children to be put in a position where they would ask their father where he was and ascertain that he is in prison.  The father’s position was that they had probably already been told but if they had not, he could easily deflect any question such that they would not know nor would they be confused about his position.

4. The father’s position on its face is plausible save for two things.  I am troubled by the findings of Brown J about his “interrogation” of the children previously.  Her Honour was critical of the father for implicating the children in parental conflict.  Secondly, I am also concerned about the impact on the parenting capacity of the mother who has the primary care of these children and who has maintained the belief that the father has sexually molested C.  There is no evidence before me that her parenting capacity is affected but this is an interim hearing and her evidence about not wanting the father to ever have any contact with the children or know anything about them at all was abundantly clear.  If there is any foundation for the allegations now being made against the father, it may well be that the mother’s position for many years has been vindicated. 

5. Despite the comments I have just made, I turn now to how the matter should be resolved.

6. Counsel for the mother in September handed to me a set of minutes of orders which asked the Court to reserve the question of the father communicating with the children.  The father’s position was set out in his Response.  Ironically, he sought an “intrim” (sic) order that the children live with him for the duration that they were out of the country.  I do not think that that is really what he meant and he told me he was not proceeding with the application.  What he sought was an order that apart from precluding the mother from travelling, upon his release from custody he have leave to seek further orders.  He also sought that he otherwise communicate with the children each Sunday from 12.00 p.m. to 2.00 p.m. and that the mother keep him advised in writing of the addresses of the children and their telephone numbers and that he be at liberty to get the relevant school reports and photographs.

7. The Independent Children’s Lawyer supported the mother’s position.

8. The mother’s evidence was as I have earlier set out.  When told of the current criminal charge, I accept she was devastated for the relevant child and the child’s mother.  She set out her opinion but I do not propose to take that into account other than to note that she said she was sickened by the father having unsupervised contact with the boys despite the allegations of C and that C had not been able to understand why the boys were seeing their father.  To use her words, she struggled every day with the “guilt” of having associated with the father.

9. E has now been diagnosed with Asperger’s Syndrome although there is a specialist appointment shortly to confirm the diagnosis.  The mother set out E’s dilemma of requiring a stable routine and a settled family life.  The school is aware of E’s problems.

10. The father did not challenge any of the evidence associated with the belief of the mother but it was clear from his cross examination that he was not aware of E’s health situation because he had not been told. 

11. I am satisfied on the mother’s evidence that she is well aware of the dilemma of Asperger’s Syndrome but the father is not.

12. When cross examined, the mother was asked by the father how she would respond to questions by the children as to his whereabouts.  She answered that she would not tell them.  I am satisfied she is conscious of the problem and that she is not prepared to tell them he is currently in prison.

13. The mother’s evidence was the children would not miss the father and have only raised any questions about him around Father’s Day as a result of a school activity.  Again, she said she deflected the issue.  I accept her evidence.

14. The mother said she had no problems about providing the children with gifts from the father but she was not prepared to allow her telephone number to be used as part of the prison contact regime.  When I queried how sending gifts would overcome the questioning dilemma, she indicated that she did not see it as a problem. 

15. The father’s evidence about the children was simple.  He said that the mother had demonstrated over the past six years that she had little regard for the Family Court Orders and had constantly breached them.  I am not satisfied that that is the issue.

16. One might consider that where the telephone calls from a prison are sufficiently transparent to ensure that there is no misbehaviour on the part of the father, he ought to have the opportunity to continue his relationship until such time as the outcome of his criminal proceedings are known.  In this case however, having regard to what has happened in previous proceedings and specifically the findings of Brown J to which I have already referred, I have some concerns that any contact might be confusing for the children but also destabilise E because of his Asperger’s Syndrome.  The mother’s evidence was that subsequent to May 2011, matters have settled and the children are progressing well.  On an interim basis, it would be highly inappropriate to change that.

17. Before turning to the legal issues, it is important to deal with the second issue relating to the international travel.  The mother’s case was that she wanted a holiday and she named a number of countries.  She said that Australia was her home.  She has always lived here and in any event, Brown J gave her sole parental responsibility which would have entitled her to obtain a passport for the children without permission from the father.  The mother is currently in employment which is an added factor satisfying me that she has every reason to return to Australia.  The father’s evidence was that the travel details were vague and no times or dates had been proposed.  In fairness to the mother, she indicated that she would not take the trip until such time as the Court had sorted out whether she should go.

18. The father pointed out that some of the countries mentioned were not signatories to the Hague Convention and the mother indicated in return that she would contemplate places such as New Zealand and Thailand both of which are signatories to the Convention.

19. The father urged the Court to take into account that the mother was living in a house owned by the maternal grandmother and therefore there was no basis for her to remain here because no valid tenancy document had been lodged with the Tenancy Tribunal in Victoria.  When questioned about that, the mother said she knew nothing of those arrangements because the house belonged to her mother.  It seems to me that there is no relevance in that issue.

20. The father asserted that the maternal grandmother (although he referred to her as the paternal grandmother) was very wealthy and “could” supply the mother with cash to sustain herself and the children whilst living overseas.  There is no evidence to suggest that that was likely.  There is no reason for me to have any doubt that the mother sees Australia as home for herself and the children.

21. Part VII of the Act provides that each of the parents of a child who has not attained the age of 18 years has parental responsibility for that child. Parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child. It therefore includes questions such as international travel because s 61C(3) provides that parental responsibility is subject to any order of the Court.

22. Although the determination is about what is best for the children, it is largely about the assessment of risk.  The factors to be considered in the assessment of that risk, that is of their non‑return, were set out by the Full Court in Line & Line (1997) FLC 92-729.

23. The factors were said to be as follows:

    (a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);

    (b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and

    (c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and

    (d)Whether the country of travel is a signatory to the Hague convention.

24. Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.

25. I am not satisfied on the balance of probabilities that there is any basis to find that the risk that the mother would deliberately not return the children is a significant one.  I am satisfied that the risk of non return is low.

26. The father also sought an order that if I allowed the mother to go, I should make an order that she provide a $10,000 security.  The mother’s response was that she would pay it if she had to but it would put her in a difficult position having regard to her financial circumstances.  Having regard to my finding that I think the risk is low, there is no reason for me to require a security.  In any event, the father’s basis for seeking the security was that even if he was in prison, it would be his mother who would be seeking to exercise the use of the money to have the mother return with the children.  There is no basis for me to accept that as a serious proposition.

27. In the circumstances, I see no reason why the mother should not enable the children to have the holiday which I think will be beneficial for them.

28. I have already set out the underlying principle which is that any order must be made with the paramount consideration being the children’s best interests.

29. In final submissions, the Independent Children’s Lawyer expressed hesitation about the telephone communication and relied upon paragraph 158 of the Judgment of Brown J to which I have referred.  It was that paragraph that caused concern for the Independent Children’s Lawyer because of the prospect of some repetition of that behaviour. 

30. Mr Laidlaw of Counsel on behalf of the mother said it was not appropriate for telephone contact to occur because the boys were settled and the whole belief system of the mother which had permeated the two previous major trials was now being revisited.  His submission was that it was better to have a period of absence as opposed to the two young boys being confronted with a father in gaol from which they might reasonably conclude that he was a bad person. 

31. The father submitted in final address that there was no basis for him to destabilise the children because he also did not want them to know that he was in gaol and he referred to the relevant provisions of section 60CC as to their right to have time with him.

32. I turn then to the legal issues which affect and underpin both the issue of the father’s communication with E and D and the mother’s request for holiday orders.

33. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. I consider that it is not necessary to contemplate that here because the mother already has a determination from a court previously and the contrary position was also not sought by the father.

34. Section 60B of the Act sets out the objects and principles underlying Part VII.  These require consideration of how the Court can meet the best interests of the children by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. 

35. The legislative intention is also clear that the objects are to protect children from physical or psychological harm.

36. I find that there is a risk that the children and in particular E, will be destabilised by the on-going telephone communication from prison.

37. Orders need to be crafted so that they will ensure that the parents fulfil their duties and meet their responsibilities as parents.  Making an order that the husband not do something would normally be fulfilled as a matter of parental responsibility.  Brown J was critical of the father’s approach to parental responsibility in 2009.  Whilst it might be argued there is no basis for the father to do anything of that nature again, these are temporary suspensions of communication arrangements.  The Court can and should be more cautious than usual particularly where the allegations against the father are very serious.

38. Section 60B also sets out the various principles underlying the legislative objects.  They are that children have the right to know and be cared for by both parents as well as the right to spend time on a regular basis with and communicate with both parents.  That right of the children should only be denied in rare circumstances where it is clearly not in their interests to have such contact.  Because of E’s situation and the stability of the children at present, this is one of those circumstances.

39. The knowledge of a parent can be kept alive in the mind of the boys in other ways such as presents and vetted letters.  This is a case where the relationship between the father and the children has had a tragic start and was only just beginning to develop.  Having regard to their ages, I see no damage to a delay in that development.  If the father is released and can show that there is no foundation to the accusations against him, the whole relationship can be reviewed.

40. In assessing the children’s best interests, the Court is obliged to consider the provisions of s 60CC.  This has been done at least twice before by this Court and it seems folly to go into great detail.  However, the evidence in this interim hearing is very limited and the critical question seems to me to be whether the father is a responsible parent.  Responsible parents do not sexually or otherwise abuse their children or any child. In this family, that problem has been a recurring theme.  The Courts have grappled with it but now, for the first time, the criminal justice system has taken the issue on seriously.  The outcome of that process may define but not necessarily conclude, whether the father is an appropriate role model for these children and whether he is a responsible parent.  E and D deserve to have that responsible parent and pending the determination, I am taking a cautious approach because the criminal justice system is treating the matter as a serious problem.

41. Children should have the benefit of having a meaningful relationship with both parents.  In Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 Murphy J noted with approval the comments of Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252, where the question was asked whether there was a chance of a meaningful relationship which was beneficial to the children but also whether both parents had ‘something to offer’ the children.  I am not sure what the father has to offer these boys at the moment other than a chance to maintain the familial connection.  His absence does not seem to have caused them to regress.  There is therefore little other benefit that the children would receive from continuing the telephone cals.

42. In Loddington & Derringford (No. 2) [2008] FamCA 925 I referred to the fact there was no legislative definition of meaningful relationship and said that for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. The evidence does not support any current prospect of that happening. It will be remembered that Brown J had envisaged the father’s new family as being a part of the lives of these two children. That has now gone. Just what the father can tell the boys about his life remains a mystery. Simply avoiding telling them that he is anywhere other than in prison is not really to the point.

43. An important question is also the impact on the mother and C.  Those concerns may be ameliorated once the criminal charges are resolved.

44. The mother otherwise provides a stable relationship and environment which I find may be undermined if the father was given an opportunity to continue the communication.

45. I have no evidence as to how the telephone communication could be masked and whether it could be supervised or monitored.  Even if it could, I am not sure what benefit there would be for the children other than that to which I have referred.

46. Section 60CC has a number of additional considerations.  The two children are very young to have their views taken seriously.  To the extent that the father maintains that the children are excited about speaking to him and vie for his attention, no harm will be done by that excitement being delayed having regard to the delays that have occurred to date.

47. I have set out the nature of the relationship of the children with their mother.  I am concerned that stability should be maintained for the time being.

48. Section 60CC requires the Court to consider the likely effect of changes in the children’s circumstances.  Nothing suggests that the children are being psychologically or emotionally damaged by the absence of their father.  The mother’s evidence is that the telephone communications will alter that.  On an interim basis and without some expert evidence, I do not consider there is much weight I should give that.

49. Other issues as are required to be considered in s 60CC are largely irrelevant because of the father’s current imprisonment.  Despite some expressed concerns of the father about the mother, there was nothing that arose in her cross-examination that would justify such concerns.  Despite also the criticism of her by Brown J about her persistent belief of the father, she cares properly and apparently well for the children.  I am satisfied that the mother is meeting all of the emotional and intellectual needs of the children. 

50. To the extent that continuing the familial connection is important, I consider vetted correspondence and presents is sufficient.

51. The father wanted orders that the mother provide school details.  Her response was that she did not want the children in his life at all.  His position was that he wanted to watch a photograph of his children growing.  All parenting orders must be in the best interests of the children and it is hard to see how the children would be affected by such an order.  If there is to be contact between the father and the children in the future, his examination of school photos and reports may enable him to show to the children that he did not abandon them.  I can see some benefit for the children in that approach and I propose to make that restricted order.

52. As I earlier mentioned, there may have to be another parenting trial in the future but I see no point in keeping proceedings extant at the moment.

I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 November 2011.

Associate: 

Date: 

ANNEXURE

The father relied upon:

§Response to an Application in a Case filed 28.10.2011.

§2 affidavits of the father filed 28.10.2011

§Judgment of Brown J.

The mother relied upon:

§Application in a Case filed 26.7.2011.

§Affidavits of the mother filed 26.7.2011 and 8.11.2011.

The Independent Children’s Lawyer relied upon:

§The Judgment of Brown J at para 158 and 159.

All parties relied upon the Reasons for Judgment of Brown J. delivered 8.4.2009.