Penrose & Albrecht

[2023] FedCFamC1F 803

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Penrose & Albrecht [2023] FedCFamC1F 803

File number(s):	ADC 5666 of 2022
Judgment of:	BERMAN J
Date of judgment:	20 September 2023
Catchwords:	FAMILY LAW – CHILDREN – Interim – Where the applicant filed his Initiating Application to resume time spending with the children in December 2022 – Where the parties have spent over $120,000 in legal fees – Where no substantial application has yet been heard and determined – Where the father’s Amended Application seeks orders solely with respect to communication and various restraints and injunctions – Orders.
Legislation:	Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC
Cases cited:	Marvel & Marvel [2010] 240 FLR 367
Division:	Division 1 First Instance
Number of paragraphs:	77
Date of hearing:	11 September 2023
Place:	Adelaide
Counsel for the Applicant:	Ms Lewis
Solicitor for the Applicant:	Resolve Divorce Lawyers
Counsel for the Respondent:	Ms Betro
Solicitor for the Respondent:	Jordan & Fowler Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Dichiera
Solicitor for the Independent Children's Lawyer:	Legal Services Commission of South Australia

ORDERS

ADC 5666 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR PENROSE

Applicant

AND:

MS ALBRECHT

Respondent

AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	20 SEPTEMBER 2023

THE COURT ORDERS UNTIL FURTHER ORDER THAT:

1.X born 2010 and Y born 2011 (collectively “the children”) live with the mother.

2.The parties forthwith do all things necessary to engage Ms B for the purpose of child inclusive non-reportable counselling at such times, for such duration, and on such terms as Ms B may advise and the parties agree and for this purpose:

(a)The mother obtain a mental health plan for the children;

(b)The parties share equally in Ms B’s fees for her consultations with the children; and

(c)The parties each bear the full cost of their respective consultation with Ms B.

3.The mother and father shall communicate with the other party via the parenting app “Our Family Wizard” (“the parenting app”), or such other appropriate parenting app as the parties may agree, except in the event of an emergency involving the children, when communication shall occur by telephone or text message.

4.The father be at liberty to send letters, cards and gifts to the children every two (2) months together with their birthdays, Christmas and Easter by posting them to the mother’s residential address.

5.The mother shall ensure that the father’s communication and gifts are provided to the children and the mother shall confirm with the father that they have been provided to them.

6.The mother shall keep the father advised of which extra-curricular activities the children are involved in and any change thereto, together with details of any medical practitioner, psychologist, counsellor, social worker, speech pathologist, occupational therapist or other allied health professional upon which the children attend.

7.The father be authorised to:          

(a)Communicate with the children’s school and extra-curricular providers to obtain information about the children’s progress;

(b)Obtain at his own costs, school reports, notices, photographs and other information about the children’s progress that is ordinarily provided to parents by any school or extra-curricular provider in which the children are enrolled and attending; and

(c)Communicate with and obtain information regarding the children from any medical practitioner, psychologist, counsellor, social worker, speech pathologist or occupational therapist or other allied health professional upon which the children attend.

8.The mother shall advise the father by telephone in the event of an emergency in which the children suffer any illness, accident or other medical issue requiring hospitalisation including the nature of such, the location of the children and the details of any treating practitioner and or hospital.

9.Without admission, each of the parties be restrained and an injunction granted restraining them from:

(a)Abusing, assaulting, insulting, belittling, rebuking or otherwise denigrating the other party in the presence or hearing of the children or allowing any other person to do so;

(b)Discussing these proceedings with or in the presence or hearing of the children; and

(c)Enrolling the children in any school other than C School or D School, unless agreed in writing between the parties or order of this Court.

10.The parties be restrained and injunction granted restraining each of them from:

(a)Approaching within 50 metres of each other;

(b)Attending at the homes of each of the parties; and

(c)Publishing on the internet or by any electronic means any material about each of the parties, the children, Mr E or F or any aspect of these proceedings.

11.The parties be at liberty to provide a copy of this order to the children’s school, treating health professionals, and extra-curricular providers.

12.Further consideration of the matter is listed for hearing before the Honourable Justice Berman on 18 December 2023 at 9.00 am.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Berman J

INTRODUCTION

1. By Amended Initiating Application filed 8 September 2023, Mr Penrose (“the father”) seeks parenting orders for X born 2010 and Y born 2011 (collectively “the children”).

2. By way of final orders sought, the father seeks that he and Ms Albrecht (“the mother”) have equal shared parental responsibility and that the children eventually spend equal time with the parties on a graduated basis to be further particularised consequent upon a Family Assessment Report being received.

3. The father initially commenced proceedings on 13 December 2022 and by way of interim orders, he sought that the parties have equal shared parental responsibility for the children, that the children live with the mother and spend time with the father as follows:-

   (a)From 10.00 am until 4.00 pm each Sunday;

   (b)Following six (6) visits, from 10.00 am on Saturday until 4.00 pm on Sunday; and

   (c)That without admission as to the necessity for supervision, the father’s time with the children be supervised by his brother.

4. Consequent upon a Family Assessment Report being prepared by Ms G, Clinical Psychologist, dated 19 July 2023, the father now seeks significantly amended interim orders which seek the following:-

   (a)That the parties communicate via a parenting app known as “Our Family Wizard” except in circumstances of emergency when communications occur via telephone or SMS message;

   (b)That the mother shall communicate with the father on a weekly basis via the “Our family Wizard” app to provide him with updated information in respect of the children’s general progress both at school and in respect of any extra-curricular activities undertaken;

   (c)That the father be authorised to:

   (i)communicate with any staff member at any school, sporting association or extra-curricular activity to which the children or either of them attend;

   (ii)Obtain at his own cost, any reports, notices, photographs, and any other item or information that is usually provided to parents by any school, education institute, sporting body of extra-curricular activity in which the children may be enrolled or attend;

   (iii)communicate with and obtain any information, reports or direction concerning the children’s physical and/or mental health and/or welfare from any general practitioner, specialist medical practitioner, psychologist, counsellor, social worker, speech pathologist, occupational therapist and/or other health or allied health professional at his own expense;

   (d)That a copy of any order made be provided to the children’s school with the parties relevant email and contact details;

   (e)That the mother immediately notify the father in the event that the children suffer any illness or accident or other medical issue requiring hospitalisation;

   (f)That each of the parties, their servants and agents be hereby restrained by injunction from:

   (i)abusing, insulting, belittling, rebuking or otherwise denigrating the other party either in person or by any other means including but not limited to social media outlets;

   (ii)discussing these proceedings with or in the presence of the children; and

   (iii)enrolling the children in any school other than C School or D School, unless agreed between the parties.

   (g)That the father is at liberty to send letters, cards and gifts to the children by forwarding them to the mother’s nominated address, and the mother shall ensure all such letters, cards and gifts are passed on to the children and shall send the father a message via Our Family Wizard app upon the letter, gift or card being provided to the children;

   (h)The parties do all things necessary to facilitate the children attending upon Ms B for the purposes of non-reportable counselling at such times and on such conditions as Ms B may direct provided:

   (i)the mother do obtain a mental health care plan for the children; and

   (ii)the parties are to equally pay Ms B’s fees (after the deduction of any associated Medicare/Private Health care rebate).

5. The orders sought by the mother are set out in the Response to Final Orders filed 8 February 2023.  In summary, she seeks by way of final orders that she have sole parental responsibility for the children, that they live with her and spend no time with the father.

6. The mother seeks similar orders by way of interlocutory relief but in addition, she proposed that the parties and the children attend upon Ms G for the purposes of the preparation of a Family Assessment Report.

7. The mother also sought interim orders that the father be restrained from:

   (a)Attending at the mother’s place of residence;

   (b)Assaulting, molesting or in any way interfering with the mother;

   (c)Contacting or approaching the mother and/or the children;

   (d)Attending at the children’s school, school events, and sporting fixtures.

8. At the hearing on 11 September 2023, each of the parties provided a draft Minute of Order which indicated that they were now in substantial agreement as to the following:

   (a)That the children live with the mother;

   (b)That the parties attend upon Ms B for the purposes of child inclusive non-reportable counselling;

   (c)That the father is at liberty to send letters, cards and gifts to the children once every two months together with their birthdays, Christmas and Easter by posting them to the mother’s address;

   (d)That the mother shall ensure the father’s communication and gifts are provided to the children and shall confirm with the father that they have been provided;

   (e)That the mother shall keep the father advised of which extra-curricular activities the children are enrolled in together with details for medical practitioners, psychologist, counsellor, social worker, speech pathologist, occupational therapist or any other allied health professionals upon which the children attend;

   (f)That the father is authorised to communicate with the children’s school and extra-curricular providers to obtain information about the children’s progress providing any request is at his own cost;

   (g)That the mother will notify the father in the event of any emergency resulting in the children requiring hospitalisation; and

   (h)That each of the parties be restrained by an injunction from:

   (i)abusing, assaulting and insulting, belittling, rebuking or otherwise denigrating the other party in the presence or hearing of the children or allowing any other person to do so;

   (ii)discussing these proceedings with or in the presence or hearing of the children; and

   (iii)enrolling the children in any school other than C School or D School unless agreed in writing between the parties or by order of the court.

9. What remained for argument and determination is the following matters:

   (1)That the mother opposes:

   (a)communicating with the father via the “Our Family Wizard” parenting app.

   (b)being obligated to provide to the father details of any occasion when the children are absent from school and the reason for their absence.

   (2)Injunctions that restrain the father, his servants or agents from the following:

   (a)contacting by any means or approaching within 50 metres of the mother, the children, Mr E or F save as otherwise necessary to give effect to the orders;

   (b)coming within 100 metres of the respondent’s home at H Street, Suburb J;

   (c)attending the children’s school, school events or extra-curricular activities to which the children are in attendance, unless otherwise agreed to between the parties legal representatives in writing; and

   (d)publishing on the internet or by any electronic means or any material about the respondent, the children, Mr E or F or any aspect of these proceedings.

10. Accordingly, the areas of dispute are of narrow compass.

    CONDUCT OF THE PROCEEDINGS

11. It is uncontroversial that the children currently reside with the mother and her new partner, Mr E, together with his daughter, F.  The children last spent time with the father in June 2021.

12. The father accepts that the children are refusing to see him but contends that they have been negatively influenced by the mother and Mr E.  It is also asserted by the father that Mr E presents as a risk to the children both in terms of his conduct in purportedly alienating the children from a relationship with the father but also because of the children’s exposure to violent and aggressive conduct by Mr E.

13. The father sought to resume time with the children.

14. The mother does not accept the father’s contention that either she and/or Mr E have conspired to interfere with the children’s relationship with their father but rather considers that both children have decided not to see him because of their experience of his previous conduct and in that respect, the mother supports the wishes of the children.

15. Whilst there is disagreement between the parties as to the integrity of the shared parenting arrangement that existed following separation on 10 January 2020, it is acknowledged that the parties agreed to share the care of the children which came to an end when the father decided that he would take time out and travel around Australia. 

16. The father considers that it was during his absence that the mother and Mr E were able to influence the children to not resume a relationship with him upon his return.  The mother denies that she undertook any conduct as inferred by the father and highlights her concern that the father exhibited physically aggressive conduct and may have subjected the children to either sexual abuse or overt sexualised behaviour.

17. What is apparent is that as a result of the current presentation of the children to Ms G, the father now has regard to the recommendations as set out in the Family Assessment Report and for the present, he does not seek any orders for time spending.

18. The history of the proceedings are relevant to the current position of the parties.  By Order of a Judicial Registrar on 9 January 2023, the matter was allocated to the Evatt List and extensive orders were put in place providing for the future management of the matter including, the preparation of a s 62G(2) Report.

19. On 10 February 2023, a Judicial Registrar made Orders that the information provided pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) be released to the parties and their legal representatives.

20. The matter was listed for an interim hearing before a Senior Judicial Registrar on 26 April 2023.  A raft of procedural orders were also made relating to subpoenas, the preparation of further documents and the manner in which the application was to go forward.

21. An Order was made in chambers by a Judicial Registrar on 23 February 2023, noting that the proceedings were allocated to the Evatt List and that the Court had received s 69ZW materials.

22. The chambers Order provided for the information to be released to the parties subject to certain conditions.

23. On 2 March 2023, a further order was made in chambers by a Judicial Registrar granting leave for the parties and now the Independent Children’s Lawyer (“ICL”) to inspect and copy the Response received to the Notice of Risk from the Department for Child Protection (“DCP”).

24. On 29 March 2023, a Judicial Registrar ordered that copies of the Child Impact Report prepared by the Court Child Expert dated 27 March 2023 be given to the parties, their lawyers, the ICL and other child protection organisations that were not part of the proceedings.

25. On 20 April 2023, the matter finally came before a Senior Judicial Registrar who gave leave to the parties, the parties’ legal representatives and the ICL to inspect and copy the response received from SAPOL dated 19 April 2023.  The interim application and response were not heard.

26. On 21 April 2023, a further order was made by the Judicial Registrar giving leave to inspect 69ZW documents to the parties and their legal representatives.  An order was also made for the parties to be able to receive the co-located material as prepared by the embedded DCP officer.

27. The parties together with counsel appeared before the Senior Judicial Registrar on 26 April 2023 and orders were made that removed the matter from the Evatt List and vacated the further directions hearing before a Judicial Registrar on 18 May 2023.  The removal of the matter from the Evatt List was based upon a transfer of the proceedings to Division 1 of the Federal Circuit and Family Court of Australia (“the Court”) noting that there were allegations of sexual abuse perpetrated by the father against the children and the mother’s partner was charged with child exploitation matters awaiting sentencing in the District Court in mid-2023.

28. The order also provided by consent for the parties to attend upon Ms G to prepare a Family Assessment Report.

29. On 14 June 2023, a Judicial Registrar ordered that the mother’s partner attend the appointment with Ms G and that the matter be listed for interim hearing in Division 1 on a date to be advised but not before the week commencing 14 August 2023.

30. Ultimately, the matter came before me on 11 September 2023 and whilst the areas of disagreement were now of narrow compass, following submissions of counsel, judgment was reserved.  

31. For reasons that will be considered, the father’s application for interim orders should have been listed for hearing much earlier than this week in circumstances where significant delay was only likely to further entrench the position of the parties and provides support to the children’s apparent reluctance to re-engage with the father.

    LEGAL FEES INCURRED BY THE PARTIES

1. Each of the parties has filed and served a Cost Notice on 8 September 2023.  For her part, the mother has incurred fees of about $42,561 with an estimate of a further $60,000 should the matter proceed to trial.

2. For his part, the father has incurred fees to date totalling about $78,584.  Should the matter proceed to trial, the further estimated costs are between $61,000 and $135,000.

3. The reality of the parties’ predicament is that they have incurred significant legal fees and disbursement costs of at least $120,000 with the father’s application only now having been heard and determined some nine months after filing of the father’s Initiating Application and nine procedural orders. 

4. Significant and ultimately unnecessary costs have accumulated in respect of a range of inquiries that were either unnecessary or of no assistance. 

   CHILD IMPACT REPORT

5. Following Orders made on 9 January 2023, a Child Impact Report dated 27 March 2023 was published on 29 March 2023.

6. I note that the Court Child Expert was provided with file material comprising key documents including Application and Response documents together with supporting affidavits, Notices of Child Abuse, Family Violence other risk documents, s 67Z Child Protection Authority Response documents together with additional documents including s 69ZW Police Report.

7. The manner in which the proceedings have been managed raised the question as to whether there is a propensity to make standard orders rather than giving critical consideration to the gravamen of the issues in dispute and needing to be resolved.

8. The Court Child Expert correctly analysed the lack of meaningful relationship that the children currently have with their father. The issue is why that has happened and what orders would be in the children’s best interests, taking into account the provisions of ss 60CC(2) and (3) of the Act

9. It would appear that the Court Child Expert accepted that the mother had shared the contents of the father’s affidavit material with them.  It was not considered appropriate, or child focussed to share such material or have conversations with the children concerning the view of the mother and her partner that the father was “a bad man”.[1]

   [1] Child Impact Report dated 27 March 2023 at [57].

10. The Court Child Expert summarised her assessment of the attitude of the children as follows:

    60.Overall, [the children]’s solely negative view of their father, with neither reporting any positive memories of him or able to describe anything they liked about him was highly unusual. Even in cases where children have experienced significant abuse and neglect it is common for them to have mixed feelings about the parent, for example wishing the parent had not treated them abusively but still loving them. At the same time, [the children] both appeared eager to present their mother and [Mr E] in a very positive light. Such polarised views of parents may, in some cases, indicate children’s views of their parent have been influenced. ...

11. The Child Impact Report highlights a number of complexities in terms of the interpersonal relationship between each of the parties.  It is clear that the relationship between the father and Mr E is marred by aggression and overt hostility.  The Court Child Expert was concerned that at the lack of regard by the mother for the criminal proceedings that, at that time, involved Mr E.

12. It was considered likely that if the evidence did not substantiate a proper foundational basis for the children to have no relationship with the father, then specialists support may be necessary in case the children were to go forward harbouring a false belief as to the conduct of the father.

13. The key considerations by the Court Child Expert are predicated upon an assumption that the matter would be the subject of judicial determination in order to consider whether the children would benefit from engaging with a counsellor, what orders should be made that would stop or curtail the apparent propensity of the mother and Mr E from discussing adult matters with the children and to consider whether a Family Assessment Report should be ordered.

14. The matter progressed through the Court process as an Evatt designated proceeding.  The overarching benefit of an Evatt designation is that a matter gains considerable front end attention and evidence gathering which should enable proceedings to be listed for compliance and readiness hearing before a judge, with trial orders made, within ten to twelve months after the Evatt Determination event.  It is immediately apparent that the proceedings have been mired down in a court management process which has delayed a timely hearing.

    Psychological report

15. Ms G was requested upon the joint instruction of the parties to undertake an assessment of the parenting arrangements in relation to the children.  As was able to be foreshadowed, the children’s refusal to reengage with the father was clear and unequivocal.  A consideration of what might be the basis for the children’s position amounts to long standing discontent with the father attending the children’s curricular and extra-curricular activities, ongoing conflict between the parties and Mr E together with an embarrassment as to the father’s verbal professions of affection towards the children.

16. Ms G considered that consistent with the observations of the Court Child Expert, the parties and Mr E have contributed to heightened stress experienced by the children by the ongoing conflict.

17. As the position of the parties became more entrenched, so did the continuing opposition expressed by the children to resuming a relationship with their father.

18. The children are in a high conflict situation and have little support that enables them to navigate the mother’s household and the father’s household.  As a result, the default position is that the children consider stability to be in the mother’s home and reject a relationship with the father.  The recommendation of Ms G is that the children receive some assistance in order to give perspective to the parental dispute but reading between the lines, the problem should not rest with the children but rather the inability of the parties and Mr E to put aside their differences.

    INTERIM PROCEEDINGS

19. In Marvel & Marvel [2010] 240 FLR 367, the Full Court considered the manner in which interim parenting proceedings should be considered where there is contested evidence as follows:

    120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

    Application of parenting principles

20. Section 60B of the Act outlines the objects and principles underlying Pt VII of the Act.

21. Section 60CA of the Act provides that the Court must have the best interests of the child as the paramount consideration.

22. Section 60CC of the Act sets out the primary and additional considerations that the Court must take into account in determining what is in the child’s best interests of a child.

    CONCLUSION

    Should the parties use a parenting app?

23. The father would seek that the parties communicate via a parenting app rather than the mother’s position that communication should only occur between the father and/or his solicitor and the mother’s solicitors. 

24. It is of course a matter for the mother as to the extent to which she would wish to engage her solicitors taking into account what is likely to be at a significant cost, but a problem exists in that it is inappropriate and potentially unprofessional for the mother’s solicitors to deal with the father in circumstances where they are aware he is legally represented.  That is not to suggest that there might not be a workaround but in the current case, there appears to be an inexplicable propensity for the parties’ solicitors to include legal correspondence in affidavit material.

25. There is no reason why there could not be communication as between the parties.  It is a matter for the mother as to what she does with the father’s communication and the father is on notice that any communication between the parties must be civil, appropriately targeted and at a frequency reasonably required to consider the issues under discussion.

26. I can see no good reason why the parties should not be able to communicate via a parenting app.  They are not coming into contact with each other nor is there direct communication.

27. The parenting app has the advantage of recording the level and nature of any communication and may well promote a child focussed approach. 

28. At this stage, the father does not seek the anticipated extent of communication between the parties but rather, if communication is required then it shall be via a parenting app.

29. There is merit in the order sought by the father in circumstances where the parties have reached substantial agreement that Ms B will be engaged for the purposes of non-reportable counselling. 

30. The father concedes that the children should live with the mother and that his only communication with them will be by way of his ability to send letters, cards and gifts to the children on a regular basis.

    Should the mother be required to advise the father of any school absences by the children?

31. The parties are agreed that the mother will keep the father advised of any issues in respect of the extra-curricular activities undertaken by the children together with details of any significant involvement by a medical practitioner or allied health professional.  The father seeks that in addition, the mother be obliged to provide details of any occasion when the children are absent from school and the reason for their absence.

32. The parties are agreed that the father is authorised to communicate with the children’s school to obtain information about the children’s progress.  There is no need for the mother to advise the father of any occasion when the children are absent from school and the reason.  The father will receive regular reports either in the ordinary course of the school year or as a result of his direct enquiry.  Any significant issue in respect of absenteeism by the children will become apparent to him.  I do not consider it is reasonable that the mother be obliged to provide the information as sought by the father.

    Should the father be subject to various restraints and injunctions?

33. A more significant issue arises in respect of the orders sought by the mother that the father and his servants and agents be restrained from coming into contact with either the mother, Mr E, the children or Mr E’s daughter, F, other than as may be necessary by reason of the orders and from attending within 100 metres of the mother’s home or the children’s school or extra-curricular activities.

34. The parties are agreed that they should each be restrained from abusing, assaulting, belittling or rebuking or otherwise denigrating the other party in the presence or hearing of the children or allowing any other person to do so or discussing the proceedings with or within the presence or hearing of the children.

35. What is immediately apparent is that an injunction cannot be made in respect of the father’s servants or agents. 

36. In addition, I do not consider that power exists to make an order restraining the father from coming into contact with Mr E or his daughter, F. 

37. It is reasonable that other than as may be required to give effect to the orders, the father should not approach the mother and that she should do whatever is required to ensure that Mr E does not come in to contact with the father.

38. The father of recent date and arising out of his frustration at the lack of relationship with his children has taken to ambushing the mother and the children with overt and public demonstrations of affection. 

39. Whatever may be the justification for the children’s attitude towards the father, it is clear from their presentation to the Court Child Expert and then Ms G that the father’s public displays of affection are not appreciated and are only likely to further entrench their opposition to resuming a relationship with him.

40. I am aware of the mother’s fervent dislike for the father and the appalling relationship between the father and Mr E that at times, has resulted in physical altercation.

41. Whilst I bring to account the views expressed by the children of their opposition to resuming a relationship with the father, I do not ignore the evidence of Ms G and the Court Child Expert that the children’s presentation lacks maturity and the reasons for their lack of relationship with the father are not easily understood.

42. For his part, the father appears to be reacting appropriately to the opinion and recommendation of the experts by now not seeking to resume a physical relationship but rather to remain as a presence in the children’s lives consistent with the provision of written communication and appropriate gifts.

43. I do not consider that I should make the orders of injunction as sought by the mother.  The father would now understand both from the mother’s complaint and matters raised in open court that whilst benign, standing near the mother’s home or taking up a position on a nearby roadway with a sign or other memorial directed towards the children is ill advised and not consistent with the evidence of Ms G.

44. I have indicated to the parties that I will bring the matter back before me at short notice if that would assist in allowing the children to regain some proper and mature perspective of their circumstances.

45. I do not consider that there is sufficient evidence which would support the injunctions sought by the mother.  It is now a matter for the father to determine how he would choose to act given his better understanding of the children’s attitude to some of his more exaggerated and overt expressions of affection.

46. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.

Associate:

Dated:       20 September 2023