Olds and Dunne
[2008] FMCAfam 846
•25 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OLDS & DUNNE | [2008] FMCAfam 846 |
| FAMILY LAW – Children – equal shared parental responsibility – father seeks time overnight with children – assault and sexual assault of mother – whether mother’s fears are genuinely held – whether order for time overnight will effect mother’s ability to parent children properly. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 Re Andrew (1996) FLC 92-692 |
| Applicant: | MR OLDS |
| Respondent: | MS DUNNE |
| File Number: | LNM 1413 of 2005 |
| Judgment of: | Roberts FM |
| Hearing dates: | 3, 4 & 12 March 2008 |
| Date of Last Submission: | 12 March 2008 |
| Delivered at: | Hobart |
| Delivered on: | 25 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Fitzgerald |
| Solicitors for the Applicant: | Legal Aid Commission of Tasmania |
| Counsel for the Respondent: | Ms M Ryan |
| Solicitors for the Respondent: | Mary-Anne Ryan |
| Counsel for the Independent Children’s Lawyer: | Mr M Turnbull |
| Solicitors for Independent Children’s Lawyer: | Ogilvie Jennings |
ORDERS
That all earlier parenting orders in relation to [W] born in 1996, [X] born in 1998, [Y] born in 1999 and [Z] born in 2001 (“the children”) are discharged.
That the children live with MS DUNNE (“the mother”).
That the mother have sole parental responsibility for the children.
That the children spend time with MR OLDS (“the father”) each second weekend on Saturday from 9.00 a.m. until 5.00 p.m. and on Sunday from 9.00 a.m. until 5.00 p.m., or at such other times as may be determined by the staff of the [Omitted] Children's Contact Centre.
That the time that the children spend with the father in accordance with these Orders is to be spent mainly at the paternal grandmother’s residence unless otherwise agreed between the parties.
That for the purposes of Order No. 4 hereof the father or his agent is to collect the children from, and return them to the [Omitted] Children's Contact Centre or such other location as the parties may agree upon.
That at any time when the children are being transported by the father or his agent they are to be transported in a registered and roadworthy motor vehicle and each child is to be properly restrained while travelling in such vehicle.
That the children must be permitted to telephone the mother at reasonable times while spending time with the father.
That the mother is to provide all necessary authorities to the children’s schools to enable the father to be sent copies of reports, photographs and other information generally provided to parents by those schools.
That save as to costs, all extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Olds & Dunne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
LNM 1413 of 2005
| MR OLDS |
Applicant
And
| MS DUNNE |
Respondent
REASONS FOR JUDGMENT
The Issues
The principal issue in this matter was succinctly summarised by the Independent Children’s Lawyer (“the ICL”) when he started his closing address. He said:
Should we have more regard for the fact that a meaningful relationship between the children and their father will be promoted inevitably by them spending overnight time with him, or should we have regard to the fact that, potentially, that will cause the mother considerable psychological harm and may well affect her ability to parent the children in circumstances where she is clearly the primary carer?
The other main issue for determination by the Court is whether or not parental responsibility should be equally shared between the parents.
Applications
In his Amended Application filed 23 July 2007, Mr Olds (“the father”) Orders that can be summarised as follows:
a)That [W] born in 1996, [X] born in 1998, [Y] born in 1999 and [Z] born in 2001 (“the children”) live with Ms Dunne (“the mother”).
b)That the parents have equal shared parental responsibility for the children.
c)That the father spend time with the children as follows:
i)Each Saturday from 5.00 p.m. until Sunday at 5.00 p.m.
ii)After a period of 3 months from Friday after school until Sunday at 4.00 p.m. each second weekend.
iii)For the first half of the mid-term school holidays.
iv)For 2 week blocks in each of the summer school holidays to commence on 27 December.
v)On Boxing Day each year from 11.00 a.m. until 5.00 p.m.
d)That he or his agent be responsible for collecting and returning the children to the Children’s Contact Centre in [Omitted].
e)That any time spent with the children be at the paternal grandmother’s residence unless otherwise agreed.
f)That the children be allowed to telephone the mother at all reasonable times while they are spending time with the father.
g)That the father return the children to the mother on any occasion that they express their need to return to her.
h)That the mother provide an authority to the children’s schools to enable the father to be sent reports, photographs and the like.
The mother did not actually file a Response seeking final orders (although she had filed a Response in relation to an interim matter earlier in the proceedings). Clearly, the fact that she had not filed such a Response was not noticed when she changed lawyers. However, it was quite clear that the mother was opposing any order providing for the father to spend time overnight with the children and she was also seeking sole parental responsibility for them. That is made clear from paragraphs 2 and 3 of her trial Affidavit.
Background
The parties commenced living together in 1994 and separated finally in 2002.
The father was charged with assaulting and indecently assaulting the mother. He pleaded guilty to those offences and was sentenced to 80 hours of community service on 6 February 2004.
These proceedings were started by the applicant in the Family Court of Australia in August 2003.
On 24 September 2003 an Order was made for the children to be separately represented.
At a Conciliation Conference on 2 December 2003 Consent Orders were made providing for the children to reside with the mother and for the father to have contact with them “at such times as can be arranged at the [Omitted] Children’s Contact Service”. The Court also noted that the ICL was to attempt to arrange with the [Omitted] Children's Contact Centre a continuation of supervised contact and an increase in it’s frequency beyond one visit per month. The matter was then removed from the list with liberty to restore.
At a further Conciliation Conference on 25 January 2005, clinical psychologist, Dr Julian Watchorn, was appointed as a Court Expert and requested to provide a report. His terms of reference were to report whether the mother suffered from any psychological or psychiatric condition, disorder or illness and whether it affected her capacity to provide for the children’s physical, emotional and psychological needs. He was also asked to report upon the likely effect upon the mother’s capacity as residential parent of various orders that might be made in relation to contact between the children and the father.
On 7 March 2005 Mushin J. transferred the proceedings to this Court and on 6 June 2005 the matter was set down for hearing in the sittings in August 2005.
On 29 August 2005 interim Orders were made by consent which provided:
a)That the children reside with the mother.
b)That she be responsible for their day to day care welfare and development when they were with her.
c)That the father be responsible for their day to day care welfare and development when they were with him.
d)That the mother and father retain joint responsibility for the children’s long term care welfare and development.
e)That the children have contact with their father each second weekend “commencing and concluding at the Children’s Contact Service for a period of time as directed by the Children’s Contact Service”.
f)That at the end of a period of 3 months the contact arrangements be reviewed at a conference to be convened by the children’s representative (i.e. the ICL).
g)That both parents enrol in the Relationships Australia “Parents in Contact” program.
h)That the father enrol in the “Changing Abusive Behaviours” program conducted by Centrecare (“the CAB program”).
i)That the mother authorise the children’s schools to provide the father with school reports and general information.
j)That the mother keep the father informed of any medical issues relating to the children.
Those orders included notations, which included that the father had agreed to consult a psychologist or psychiatrist and follow the advice of that person and that the mother had agreed to continue consulting with
Dr Watchorn. Again the matter was removed from the list with liberty to restore.
On the 19 January 2006 the Court made further orders by consent which altered the contact arrangements to provide for steadily increasing periods of time during which the father would be able to have contact with the children away from the Children’s Contact Service. They also provided for a further conference to be convened in December 2006.
For reasons which are not entirely clear, the father did not appear to exercise any unsupervised contact as a result of those orders. However, in May 2006 his solicitors wrote to the Court seeking to have the matter re-listed in accordance with the liberty to apply. The matter was listed in the June sittings of the Court and orders were made by consent generally in terms of an Application filed by the father on 8 June 2006. They provided for unsupervised contact during the day and for changeovers at the Children’s Contact Service.
On 5 March 2007 the matter was set down for a hearing in the sittings of this Court in Hobart in June 2007. However, it was not until March 2008 that the matter came on for hearing. In January 2008 the parties had agreed upon a further amendment to the consent interim Orders.
The Orders now sought by the father are set out above. The mother strongly opposes the children staying overnight with the father and she seeks sole parental responsibility.
The Evidence
The father relied upon affidavits from himself and his mother. Both were cross-examined.
The mother relied upon her affidavit and she was cross-examined.
Affidavits and/or Reports were received from Dr R, a psychiatrist and
Dr Watchorn, a clinical psychologist. The psychiatrist and the psychologist were both cross-examined.
The Father’s Case
In brief, it is the father’s case that:
a)the children are ready to spend more time with him and are expressing wishes to do so;
b)spending time with him overnight will make their relationships with him more meaningful; and
c)he is keen to play a more meaningful part in their lives, which will be promoted by an order for equal shared parental responsibility.
The Mother’s Case
Essentially, the mother’s case is that;
a)she has a very significant fear that the children will come to harm if they spend time with their father overnight; and
b)even that fear is not rationally based, it is of such strength that it will have a direct negative effect upon her parenting of the children; and
c)she should have sole parental responsibility because it is impracticable for that responsibility to be shared equally.
Relevant Law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[1].
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [2]
[2] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children[3].
[3] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[4].
[4] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[5].
[5] Subsection 60CC(3)
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence[6]. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.[7]
[6] Section 61da
[7] Subsection 61DA(4)
However, if the presumption is applicable, it does not necessarily follow that equal shared parental responsibility will be ordered. The court may make such parenting orders that it considers proper in the particular circumstances of the case.
If the court is going to order that the parents are to have equal shared parental responsibility, then the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[8]
[8] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[9]
[9] See subsections 65DAA(2) and (3)
The court must follow the legislative pathway that is provided by the Act[10].
[10] See Goode & Goode (2006) FLC 93-286
The children’s best interests
Because of the father’s violent behaviour towards the mother (to which I will refer further below) the presumption that it is in the best interests of the children for the parties to equally share parental responsibility does not apply. I therefore need to decide whether equal shared parental responsibility would be in the children’s best interests.
Similarly, I must decide whether spending time overnight with their father is in their best interests.
Consequently, in relation to both areas of dispute, I must examine the parties’ proposals and the evidence in light of Section 60CC of the Act.
Primary considerations:
The benefit of having meaningful relationships with both parents
It is clear that, in general, children’s best interests are best served by them having meaningful relationships with both parents. Further, section 60B provides that, except when it would be contrary to their best interests, children have a right to know and be cared for by both parents and have a right to spend time and communicate with both parents on a regular basis.
In my view, even if that was not enshrined in legislation, it would be accepted by most in our society as simple common sense.
For reasons that I do not understand, the father’s counsel appeared to suggest that if these children do not move to spending time overnight with their father, their relationship with him will somehow wither and die. In my view, one does not logically follow the other.
As I said recently in relation to another matter, “meaningful relationship” should not be confused with a perfect, or near perfect relationship. In general, perfect relationships are probably impossible to achieve, so when a court is asked to adjudicate in a dispute between parents who are unable to “agree about the future parenting of their children”[11], it will often not be possible to make arrangements that will provide for perfect relationships with both parents.
[11] Section 60B(2)(d)
In Godfrey & Sanders[12], Kay J (sitting as the Full Court) said that the legislation “aspires to promote is a meaningful relationship, not an optimal relationship”. However, the Court must ensure “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.[13] (My emphasis.)
[12] [2007] FamCA 102
[13] See section 60B(1)(a)
Clearly, this “Primary consideration” must be carefully weighed against the next, which is referred to immediately below.
The need to protect the children from physical or psychological harm from abuse, neglect or family violence
The parties dispute the level of violence that existed during their relationship. Notwithstanding the concession by the father’s counsel that there was “fairly severe and significant violence” perpetrated by his client, I am of the view that the father still minimises his past violent and abusive behaviour and I accept the submission by the mother’s counsel that he only admits his conduct when he has no other choice.
In sentencing the father when he was convicted of both assaulting and indecently assaulting the mother on 6 February 2004, Evans J of the Supreme Court of Tasmania said the following:
You are convicted on your plea of guilty to one charge of assault and one charge of indecent assault.
The complainant … is the mother of your four children. In March 2001, in the course of a drunken argument with her, you left the residence you and she were then sharing, returned, and forced your way inside by smashing the glass panel next to the front door. You abused her, threatened her with your fists and a knife you located in the kitchen and said she deserved to die. You handed her the knife and invited her to kill you if she wanted you gone. You left when she telephoned for assistance. A short time thereafter, you and she resumed cohabiting.
Some fifteen months later, at a time when you had been living apart from the complainant for about three weeks, she woke at midnight to find you in her home. At her direction you left. Following your departure, she noticed semen on the inside of her thighs. DNA testing established that the semen was almost certainly yours.
You are 33 years of age. These are not the only occasions upon which the break up of your relationship with a female has precipitated criminal conduct on your part. In 1991 you were imprisoned for your reaction to the break up of your relationship with your then fiancée. Your conduct on that occasion involved threatening others with a loaded shotgun.
Outrageous as the conduct which is the subject of the charges now being dealt with is, I am satisfied that your crimes do not warrant a sentence of imprisonment. I consider that an appropriate penalty is a community service order.
While I do not have evidence of any direct continuing effect upon the children of the father’s behaviour towards their mother, it is clear that his behaviour has had a devastating effect upon the mother. Indeed, this case is really all about the devastating psychological effect that his behaviour has had upon her.
The mother fears that there will be some abusive behaviour (and sexually abusive behaviour in particular) on the part of the father towards the children. Her fear is that such abusive behaviour will occur if the children are to spend time overnight with the father.
The father’s argument against this is that there is no evidence to support any suggestion that he will sexually abuse the children. Indeed, Dr R’s opinion is that the father shows no tendencies towards paedophilia. In a report to the ICL in December 2004 he said:
The vast majority of sexual crimes against children arise in individuals with a diagnosis of Paedophilia. (The mother) did not report any paedophilic behaviour whilst together with (the father). Other documentation is devoid of such allegations. There are few distinguishing characteristics of the perpetrators of child sexual abuse. The only generalisation can be that they are male and usually start at a young age. The median age is around 18 years of age. Bearing this in mind I believe it would be more likely that deviant sexual behaviour towards the children would have already been evident rather than commencing now in the presence of contact with the Family Law Court.
Dr R has consistently held that view since his first report in late 2004.
I conclude from this and other evidence that there is not an unacceptable risk of sexual abuse of the children. See M and M,[14] N and S and the Separate Representative[15], Re W (Sex Abuse: Standard of Proof)[16], S v R[17] and Lindsay and Baker[18].
[14] (1988) FLC 91-979; (1988) 166 CLR 69
[15] (1996) FLC 92-655
[16] (2004) FLC 93-192
[17] (1999) FLC 92-834
[18] (2007) FLC 93-347
The father clearly has had difficulties controlling his temper and in this regard it is pleasing that he had completed a 20 week course designed to control abusive behaviour. Notwithstanding this, Dr R was of the view that he will always “struggle with his anger and aggression” and that it will be “an issue for him on an ongoing basis”.
If my only concern related to the father’s inability to control his temper at times, I would generally be satisfied with his proposal to spend time with the children at his parent’s home. That would mean that other adults would be present to protect the children if need be and the presence of those other adults would probably also have a calming effect on his behaviour. However, I must also be concerned about the devastating psychological effect that the father’s conduct has had upon the mother, and I shall refer to that further below.
I note that the father made some comment to [Y] about not being “a slut”, but I do not find that he said that in an abusive way. I accept his evidence that he did not mean to suggest that she was “a slut”, but rather that he was trying to get her to modify behaviour that he considered to be inappropriate.
Additional considerations:
The children’s views
I accept that the children have been expressing views that are suggestive of a desire to spend more time with their father and that on occasions some of the children have asked the paternal grandmother if they could stay overnight. I also accept that on occasions the children have become frustrated that they have not had enough time to complete or engage in some activities during their restricted time with their father.
Although [Y] has sometimes expressed a desire not to spend time with her father, she has subsequently spent time with him. In addition, the father has handled [Y]’s reluctance to go with him from the [Omitted] Children's Contact Centre very well. In this regard, he has not put pressure on her and, notwithstanding that she indicated that she did not wish to go with him on those particular occasions, she did show obvious affection towards him.
The nature of the children’s relationships with the parents and other persons
It’s perfectly clear that the children have a warm and loving relationship with their mother and it is to the father’s credit that his application is that they should continue to live with her. All he is seeking is to extend his time with the children.
The children all appear to have a warm and loving relationship with the father. Indeed, as can be seen from what appears above, on occasions they have expressed wishes to spend more time with him.
To some extent, it is quite remarkable that the mother’s psychological devastation has not affected the children more than it has. In this regard, she is to be congratulated, because she must have made a very deliberate effort not to infect the children with her own fears of the father. It appears that they are only aware that the father may have “done something weird”.
It is also clear to me that the children also have close relationships with the father’s parents and, because the father proposes to spend his time with the children at their home, his proposal would enable the children to spend time with their paternal grandparents as well.
The parents’ willingness and ability to facilitate, and encourage, a close and continuing relationship with the other parent
As I have said, the father is not seeking orders that the children reside with him and I have no concerns about his willingness or ability to encourage the children’s relationship with the mother.
On the other hand, the mother clearly has concerns about the children spending time with the father overnight. However, that does not necessarily mean that she is not willing or able to facilitate and encourage their relationship with the father.
Given that the father’s behaviour towards the mother, I would not have been surprised if she had sought to deny him a relationship with the children. However, she does not seek to do that and she has moved towards providing more time with the father and particularly unsupervised time.
That move to unsupervised time was clearly very difficult for her, but she was able to make that move and she now appears to accept that it has not generally been harmful to the children. That provides me with encouragement that, notwithstanding what the father has done to her, she is not seeking to obstruct the children’s relationships with their father.
The likely effect of any changes in the children’s circumstances
In my view, given the special circumstances of this case, this is the most important “additional consideration” under section 60CC to which I must give attention.
Given what I have said above, I conclude that there is no unacceptable risk to the children being sexually abused by their father. However, I must consider the likely effect upon the mother of the father’s conduct towards her, and in particular, the likely effect upon her continuing ability to parent the children properly.
In A v A[19] Fogarty, Kay and Brown JJ said:
If the wife had such a belief, it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held. The reason for that, as explained in Russell and Close and in cases which have followed that since, is that if the wife genuinely holds that belief that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interests of the children contact should continue and/or whether it should be supervised to allay those apprehensions.[20]
[19] (1998) FLC 92-800
[20] Paragraph 3.28
Similar reasoning had been adopted in the earlier well known decision in Re Andrew[21], in which Nicholson CJ, Lindenmayer & Kay JJ had considered Russell and Close[22], Sedgley and Sedgley[23], Irvine and Irvine[24], Grant and Grant[25], Brown and Pedersen[26], Marra and Marra[27] and N v S[28].
[21] (1996) FLC 92-692
[22] Unreported, Full Court, 25 June, 1993
[23] (1995) FLC 92-623
[24] (1995) FLC 92-624
[25] (1994) FLC 92-506
[26] (1992) FLC 92-271
[27] Unreported, Full Court, 8 September, 1993
[28] (1996) FLC 92-655
The two experts in this matter, Dr R and Dr Watchorn, convened a teleconference on 19 November 2007 and their joint notes of that conference are Exhibit “ICL 3”. They agreed as follows:
a)That their discussions would solely relate to the mother, her psychological condition and the impact of her children having unsupervised contact with their father;
b)That the mother had suffered from major depressive episodes in her past but was then showing no signs of depression or any psychiatric disturbance;
c)That the mother continued to express her concern and fear that, if the children are to have overnight contact with the father, that would put them at risk of possible sexual abuse; and
d)That the children having overnight contact with the father would cause the mother significant distress.
In relation to their areas of disagreement, it was Dr R’s belief that the children having unsupervised/overnight time with the father would impact upon the mother’s capacity to parent the children, but not to the point of developing a discreet psychiatric illness, whereas it was Dr Watchorn’s belief that such would cause significant distress, which would in turn impact upon her parenting capacity to a significant degree.
When Dr R gave his oral evidence he said:
…I’d also put forward the concept that given the past, that she will retain some vulnerability and these things she’s doing at the moment aren’t easy, are stressful in themselves, and if we keep piling on the stress on her, that might be to the detriment of her mental health and her capacity to care for the children.
When he was asked whether she would be able to cope and continue looking after the children if overnight contact occurs at the grandparent’s home, Dr R’s answer was:
That is a very difficult question. I think there would be distress. I think that would be one thing that would compromise her mental health. Doing university, studying hard and having the rigours of exams is one thing, but something that she has feared for many years will have a greater impact on her emotional wellbeing.
Dr R’s opinion was that although it was unlikely that the children were at risk of sexual abuse, he believed that the mother’s excessive fear is genuine and has been persistent over a number of years.
When asked directly about whether there should or should not be time overnight with the father, Dr R stated that he would not recommend time overnight, notwithstanding any improvements in the father’s situation.
Dr Watchorn has had a long history of involvement with the mother. He was initially her therapeutic counsellor and subsequently became a Court Expert. At the time of the hearing, he had had 46 sessions with the mother between August 2003 and August 2007 and that was followed up by a further interview in November 2007.
Dr Watchorn confirmed that, although the mother’s fears are not necessarily all rational, they are still intense fears. He also said that the mother’s fears that the children would not disclose any abuse were in some ways “grounded by her own experience”.
When it was put to Dr Watchorn that the mother had coped with increases in the time that the children spent with the father and a move to unsupervised time, he indicated that he thought that “survived” was a more appropriate word to use than “coped”.
Dr Watchorn said:
(The mother’s) fear is born of abuse that occurred in the evening or at night and I think that the transition from unsupervised to unsupervised overnight is a far more significant factor for her than … from supervised to unsupervised during the day.
Dr Watchorn expressed a concern that if there is to be overnight time with the children the mother may return to the instability that she exhibited in 2003/2004.
When the mother gave her own evidence, it was clear that even the thought of the children spending time overnight with the father was extremely distressing for her. I commented during closing submissions that on almost every occasion that the word “overnight” was mentioned to the mother in the witness box, she had burst into tears. I have no difficulty concluding that she is not fabricating her fears. It is clear that they are genuinely held.
I am also satisfied that if I was to make orders requiring the children to spend time with their father overnight, it would have such a detrimental effect upon the mother that it would significantly diminish her capacity to parent the children properly. Given that the children are all currently under the age of 12 years, with the youngest not yet 7 years old, any significant diminution in their primary carer’s ability to care for them would not be in their best interests.
The mother has made significant progress in getting her life together. She is looking after the four children while holding down a responsible job and undertaking a course of study at the university. Obviously, one needs to think very carefully before putting any of that in jeopardy. However, her continuing ability to care for the children must be of even greater concern to the Court.
The practical difficulty and expense of a children spending time with and communicating with a parent
To some extent this consideration overlaps with the consideration referred to immediately above. However, even if I decide that the children should not spend time with the father overnight, there are still some difficulties in relation to him spending time with them during the day. Those difficulties relate primarily to the fact that, for clearly understandable reasons, the mother does not wish to come into contact with the father. Consequently, any handover would need to occur in circumstances where they do not need to communicate with each other.
However, I note that both parties want to continue handovers at the [Omitted] Children's Contact Centre.
The parents’ capacities provide for the needs of the children
I have currently no doubts about the mother’s ability to provide for the children’s needs. She has been doing that very well for some years and, it is clear from what I have said above, that her ability should not be compromised by any orders made by the Court.
The father has shown an ability to look after the children during the limited times they are with him, at his parents home. I have no reason to believe that that will not continue. I note that he seeks orders that his time with the children should be spent at his parents’ home. Clearly, that should continue. However, I will include the word “mainly” in the relevant Order because there will obviously be circumstances, when that is impractical or inappropriate. For example, there will be times when he will need to take children to sporting commitments or the like.
The Court must also have regard to each parent’s capacity to provide for the long term needs of the children. The parties are not able to communicate and that is unlikely to improve. In view of that lack of communication with each other, and if the father’s activities with the children are to be limited to daytime hours at weekends, the mother must be given the responsibility for making the important decisions for the children’s long term care, welfare and development.
I note that the mother has already made a wise choice to change a school when one of the children was experiencing difficulty. I am also pleased to note that the father acknowledges that she made a wise choice at that time.
In the circumstances, the mother should have sole parental responsibility for the children. It is quite clear that the parties would not be able to consult with each other as required by law if that responsibility was to be equal and shared.
The parents’ attitudes to the children and to the responsibilities of parenthood
I have no concerns at all about the mother’s attitude to the children or her responsibilities as a parent.
However, I must have some concerns about the father’s attitude, given his appalling behaviour towards the mother. I accept that at times his conduct towards her occurred when the children were present. It is perfectly clear that at those times the father was putting his own base desires and instincts before his responsibilities towards his children. Luckily, however, it appears that none of the children really know or understand what he did.
The father says that he has learnt from the educational courses that he has completed. One must hope that he has.
Family violence
I have referred to this above, so I do not believe that it is necessary to say more at this point.
Conclusions
I conclude that the mother should have sole parental responsibility for the children. This is essentially because the parties are not able to communicate or consult with each other about such matters, and there is no likelihood of that improving in the foreseeable future.
Although the father appears to have “got his act together” to some extent, I am of the opinion that any order that they spend time overnight with him would affect the mother’s emotional stability to such an extent that her ability to parent the children will be significantly impaired. In those circumstances, I am of the view that the father should continue to have time with the children on a fortnightly basis only during the day at weekends.
Such fortnightly time is appropriate because the children will benefit from having the other weekends available to engage in family weekend activities with their mother.
I am also of the view that the time that the father spends with the children should continue to be facilitated by handovers at the [Omitted] Children's Contact Centre at such times as the staff of that Centre are able to accommodate.
I am well aware that my orders are not in accordance with wishes sometimes expressed by the children, so they may have some difficulty in understanding and/or accepting the orders that I propose. However, I note that the mother has in the past sought professional assistance in relation to her own difficulties (e.g. Dr Watchorn) and I have confidence that she will seek similar professional assistance for the children if it is required to help them with their acceptance of the orders.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Roberts FM
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