RAWLINSON & WARLOW
[2020] FCCA 924
•23 April 2020
.FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAWLINSON & WARLOW | [2020] FCCA 924 |
| Catchwords: FAMILY LAW – Parenting – best interests – risk of harm – family violence – children’s wishes – children aged 15 and 17 – a consideration of supervised time. |
| Legislation: Family Law Act 1975 (Cth) Part VII, ss.60CC(2), 60CC(3) |
| Cases cited: SPS v PLS [2008] FamCAFC 16 |
| Applicant: | MR RAWLINSON |
| Respondent: | MS WARLOW |
| File Number: | BRC 6653 of 2018 |
| Judgment of: | Judge Howard |
| Hearing date: | 12 March 2020 |
| Date of Last Submission: | 12 March 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 23 April 2020 |
REPRESENTATION
| The Applicant attending as a self-represented litigant |
| Solicitors for the Respondent: | Simpson Family Lawyers |
ORDERS
That the father shall be permitted to write one (1) letter to each of the three (3) children (X, born in 2003, Y, born in 2005 and Z, born in 2005).
That in the event that the father decides to write a letter to each of the children (or to any of them) – such letter or letters must be written and sent by the father within twenty-eight (28) days of the date of this order.
That upon the receipt of the letters the mother shall ensure that the letters are brought to the attention of the children.
That except as specifically ordered herein, the father is not permitted to communicate or attempt to make contact with the children unless such communication or contact is instigated by the children.
That all other outstanding applications are dismissed.
IT IS NOTED:
(A)The final orders made 28 November 2018 remain in force.
IT IS NOTED that publication of this judgment under the pseudonym Rawlinson & Warlow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 6653 of 2018
| MS RAWLINSON |
Applicant
And
| MS WARLOW |
Respondent
REASONS FOR JUDGMENT
The matter before the Court relates to three children. The children are X, (born in 2003), and twins, Y and Z (born in 2005). The children currently live with their mother, the respondent, Ms Warlow. The applicant father is Mr Rawlinson.
Proceedings in this case commenced when the father filed an initiating application on 18 June 2018 seeking parenting and property orders. The Court ordered the preparation of a family report. The report was prepared by Mr A. It’s dated 16 November 2018. The report was released to the parties on that same date, 16 November 2018. That report is exhibit 1.
After the preparation of the family report and the release of that report to the parties, the matter came before the Court on 28 November 2018. On that occasion, the applicant father attended as a self-represented litigant. The respondent mother was represented by Mr Henaghan, Solicitor. On that day, the Court ordered, on a final basis, that the mother have sole parental responsibility in respect of the children and that the children live with the mother. They are the two parenting orders that were made on that day, and a reference to the transcript of that day reveals that those parenting orders were made on a final basis by His Honour Judge Coates with the consent of the parties.
Other orders were made by His Honour, including setting the remaining outstanding issue, (namely property), down for final hearing in the Court for two days on a date to be advised. In any event, the property dispute between the parties subsequently was finalised. The final property orders were made on 13 November 2019. Those orders were made by the Court with the consent of the parties.
The matter has come back before the Court because after the making of the final property orders, the father submitted that there should be a variation of the earlier final parenting order to permit him to have some time with the children, at least to meet with the children and to say goodbye to them. The matter was mentioned before Alstergren CJ on 13 November 2019. It was also, on that same day, mentioned in this Court before me.
I heard from the parties and I issued the following directions and notations:-
“THE COURT NOTES:
A. That on 13 November 2019, the Court indicated that it would provide directions upon review of the Transcript of Proceedings from 28 November 2018. The Court has reviewed the Transcript of Proceedings from 28 November 2018 and has subsequently made the following directions.
THE COURT ORDERS UNTIL FURTHER ORDER:
1. That the parties be granted leave to take a copy of the Transcript of Proceedings in this matter from 28 November 2018, with the Court to forward a copy of the Transcript of Proceedings to the parties.
2. That in the event the father wishes to pursue an application to spend a supervised visit with the children X born in 2003, Y born in 2005 and Z born in 2005 (“the children”), then by no later than 4:00pm on 24 January 2020, the father shall file and serve an Initiating Application (particularising the order/s he seeks), supporting Affidavit and Notice of Risk.
3. That in the event the father does not file and serve any material in accordance with paragraph 2 of these Orders or the father gives notification to the Court (by way of email to [email protected]) and Respondent that he does not wish to pursue any further application for time with the children, then an Order shall issue from Chambers dismissing all outstanding applications.
4. That in the event the father files and serves his material in accordance with paragraph 2 of these Orders, then the matter shall be listed for Mention on a date to be fixed in the Federal Circuit Court of Australia at Brisbane.
5. That costs be reserved.
IT IS NOTED:
B. That on 13 November 2019, the Court requested that the father seek independent legal advice and directed the father to the consideration in s.60CC(3)(a) of the Family Law Act 1975 and Rice & Asplund (1979) FLC 90-725.
C. That on 13 November 2019, the father indicated to the Court that he wished to spend only a single, supervised visit with the children.
D. That in the event the father pursues an application pursuant to paragraph 2 of these Orders, then at the next Mention of this matter, the Court may give consideration (subject to any further submissions) to an Order pursuant to s.65L of the of the Family Law Act 1975 (Cth).
E. That upon review of the Transcript of Proceedings from 28 November 2018, it became evident to the Court that final parenting orders were made on 28 November 2018.”
Amongst the notations made, the Court was particularly mindful to request that the father seek legal advice in relation to the views expressed by the children and also seek legal advice in relation to the Rice & Asplund (1979) FLC 90-725 issue. The father informed the Court on 12 March 2020 that he had done so. That is, he had received or obtained legal advice in relation to those issues.
The father filed and served on 20 January 2020 an initiating application seeking the orders that he had foreshadowed, namely, that he be given an opportunity to speak with the children in a supervised context. That is opposed by the mother. Ms Simpson, Solicitor appeared on behalf of the mother. The father attended on 12 March 2020 as a self-represented litigant. The father travelled from Western Australia to be present at the Court hearing in Brisbane on 12 March 2020.
I note that the Court does have the power to consider a small alteration to an earlier final parenting order without embarking upon a more far-reaching hearing or trial. That this is so was confirmed by Warnick J when he was considering the rule in Rice v Asplund (supra) in a decision entitled SPS v PLS [2008] FamCAFC 16. I note in particular paragraphs 82 and 83 of that decision:-
“(v) The application of the rule is closely connected with the nature of and degree of, change sought to the earlier order.
82. This proposition lay behind what Evatt CJ said in In Marriage of Zabaneh (1986) 11 Fam LR 167 at 172-173 (Fogarty and Renaud JJ agreeing):
‘The welfare of children may ultimately demand that issues concerning access, custody and so forth, and so on, be reconsidered, but only when there is some evidence of an underlying change in the circumstances, whether that be in the attitudes of the parties, or the needs or circumstances of the children. The fact that time has elapsed or a considerable time, may be relevant, but it is not the only factor to take into account.
Different issues arise in relation to reinstatement of access. The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes. Time may play a part in this. This Court would not wish to subject children to the repeated intervention of court proceedings to the extent that they have to be reassessed every few months, or every year, by court counsellors to see if they maintain the same attitudes. That certainly could not be encouraged, but there may come a time when there are such changes in the attitudes of the parties, or such evidence relating to the children and their needs and attitudes towards their parents, that it would be reasonable to reconsider access.’
83. Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.”
This view of Warnick J’s as expressed in SPS v PLS (supra) was cited with approval by the Full Court of the Family Court in Marsden v Winch (2009) 42 Fam LR 1 at paragraph 46, where the Court specifically noted paragraph 48 of Warnick J’s decision:-
“46. Warnick J had earlier said (at [48]):
‘[48] In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’.
(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard ‘on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with ‘on the merits’.
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) ‘Shorthand’ statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.’
The Court certainly has the power to hear the application to grant the father the limited alteration to the final parenting order that he seeks and I did, in the circumstances, come to the conclusion, both in November 2019 and again in March 2020 that it was appropriate to hear from the father on the application. The earlier final parenting order didn’t provide for any time with the father. It didn’t, for instance, say that there would be supervised time and it did not say that there would be no time. It was merely silent.
There is no doubt that in considering whether or not any alteration or order should be made along the lines sought by the father that the Court does need to consider the best interests of the children, and in this context, there are two particular subsections of the Family Law Act 1975 (Cth) that are relevant. Section 60CC(2) states in relation to best interests: –
“(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
In addition, and very importantly in this case, I note section 60CC(3)(a). That section is the section that requires the Court to take into account the wishes or views expressed by the children. That subsection actually states that in determining what is in the child’s best interests – the court must consider:–
“60CC(3)(a)
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views."
I have noted the mother’s evidence, which is contained in her affidavit that was filed on 26 July 2018. In that Affidavit the mother states, inter alia:-
“9. I have always been the primary caregiver for the children. I was primarily responsible for feeding, bathing, putting to bed, getting them to school, collecting them from school, taking to sports commitments and making arrangements for any ongoing health and medical appointments or otherwise and have always been the primary care giver.
10. Prior to the birth of the children, I was financially independent and relied on an income from real estate that I had brought into the relationship together with savings. Upon the birth of the children, I cared for them full time.
11. When the children were born, we were living in Perth. For as long as I can recall, Mr Rawlinson has been violent and abusive towards me.
12. When the children were little, he was smoking marijuana at different times which affected his moods and temper drastically. That lead to a situation early in our relationship when Mr Rawlinson left the home for a few days however, he eventually returned. Unfortunately, his bad behaviour continued.
13. We decided to move to Queensland in 2013. As the children grew older, there have been many incidents where he has abused the children over issues at home, sports and holidays. I recall him trying to help with homework where he would continue to scream and swear at the children. He has yelled at X and told her that "she is dumb as dog shit". He has told Y in the past ''to suck or eat a dick".
14. I recall an incident where X and Z were in Z's room and Mr Rawlinson started yelling at them and they went into the bathroom to get away from Mr Rawlinson. I heard the girls screaming and when I got to the bathroom, Z was laying on the floor and Mr Rawlinson was kicking him. I had to struggle with Mr Rawlinson so Z could escape out of the bathroom.
15. In May 2017 there was an incident when Y and Z were completing their homework at the kitchen table. Mr Rawlinson came out screaming ''the fucking monster's back". Z ran outside and Y tried to get under the table. Mr Rawlinson continued to scream and swear at Y and yelled at her "you're a fucking cunt" and ''you're dead". I struggled with him to leave Y alone.
16. Shortly thereafter, Mr Rawlinson grabbed my head with one hand and with the other hand imitated a gun and shoved his fingers into my temple and screamed at me “I’m going to fucking blow your brains out and then kill the kids”. He commenced punching me and I was trying to defend myself. X came to my assistance and pulled me out of the room. He continued to swear and abuse Y. He then went into his bedroom and stayed there for three days.
17. Mr Rawlinson did not assist much with the children's sports training however, he did attend some games but would cause problems at those games, particularly when attending Z's games where he would continually yell abuse at Z and upset other parents. During the last few years of our relationship, Mr Rawlinson was seeing psychologists and receiving counselling for his anger and mental health problems.
18. He would constantly tell all of us that he was sorry and wanted to change and give the children his word and then revert to his intimidating and violent nature. Mr Rawlinson then stopped seeking help for his mental health issues.
19. In or around 2017, Z made the Region B sports team and the state finals were held in Town C. On the first day in Town C, we were driving to the game and Mr Rawlinson started abusing Z for forgetting his mouth guard and then continually swore and abused during Z's game about his performance.
20. After the game which was in 2017, I had organised birthday food for Z and Y's birthday. Z was having a hot bath and Mr Rawlinson came in and told me to "fuck off so I can talk to my son". I did not want to leave and Mr Rawlinson repeatedly continued to swear at me in front of the children. Z did not want me to leave. The abuse continued and X came to the bathroom and asked her father to stop swearing. Mr Rawlinson grabbed X by the shoulders and attempted to head butt her and she fell back against the cupboard. He pushed past X and hit a plastic water bottle on Y's head. As a result of the incident, X ran out of the unit, it was night time and I could not find her for over an hour.
21. Later Z had made the Queensland team and finals were in Darwin in 2017. Z, Mr Rawlinson and myself went to Darwin for the carnival. Mr Rawlinson's behaviour was the same as when we were in Town C and I was spoken to by the officials at the tournament about Mr Rawlinson's behaviour at the ground. When we came back home from the carnival, Mr Rawlinson stayed away and then flew out to Town D for his work.
22. In late 2017, Z was taken to hospital in an ambulance. I went with Z to the hospital. Mr Rawlinson did not even get out of bed to come down and see why the ambulance was there and who was being taken away. Z was admitted to E Hospital for a period of five (5) days and Mr Rawlinson did not come to the hospital during that time to visit his son.”
23. Mr Rawlinson further did not many attempt to contact the children during Christmas 2017 when the children were visiting their grandparents.
24. During the relationship Mr Rawlinson has spat in my face, split my face open several times, hit and punched me and cracked my ribs, hit the children with his belt and hit and punched the children. He has been threatening and intimidating throughout the relationship.
Care Arrangements and Parenting for the Children Following Separation
25. Eventually, Mr Rawlinson physically left the former matrimonial home on 19 February 2018 following an incident where I had to protect myself as Mr Rawlinson had threatened ''you're fucking dead. I am going to fucking kill you". Mr Rawlinson made the threats when I had questioned him about funds missing out of our bank account. I stayed away for a couple of days until the Protection Order was put in place on 19 February 2018. Mr Rawlinson has since breached the Protection Order and has been fined for those breaches.
26. The problems with Mr Rawlinson had been escalating for years and even more so since September 201 7 and we were always temporarily relieved when Mr Rawlinson flew out to work for approximately three (3) weeks at a time.
27. Since Mr Rawlinson moved out of the home on 19 February 2018, the children have not seen their father and have continued living with myself where I have been full time carer for the children.
28. The children have stated they do not wish to have any contact with their father and live in fear of their father. They have provided statements to the police in support of the Protection Application and given the trauma their father has put them through in their lifetime, they do not wish to spend time with him. Attached hereto and marked with the letters "W3" is a true copy of an Affidavit I filed in the Protection Application in the Magistrates Court at City F dated 19 March 2018 with the annexures of the children redacted. Mr Rawlinson is aware of and has read the statements by the children as acknowledged on page 3 of 5 of the statement in the Police Protection Notice dated 16 February 2018 and referred to in Annexure "W" in this my Affidavit.
29. Because of the history of emotional and physical abuse Mr Rawlinson has put us through throughout the marriage together with his mental health issues and issues with substance abuse, I have grave concern in respect of any time Mr Rawlinson now seeks to spend with the children. I require Mr Rawlinson to undertake psychiatric assessment and the report to be provided to the Court. Mr Rawlinson will deny that he has any such disorder, however, I believe this assessment is essential in moving forward. Mr Rawlinson has admitted to me that he suffers from mental health issues.
30. Mr Rawlinson has been married once before and had a daughter of that relationship. His first wife left when the daughter was an infant. The maternal grandparents raised the daughter as Mr Rawlinson has abounded all contact and responsibility for her.
31. I also seek that there be a family report Ordered by the Court to assess the children and each parent and that an Independent Children's Lawyer (ICL) be appointed given the children's ages and their wishes at this time with respect to seeing their father.”
In the affidavit filed 26 July 2018 it will be seen that the mother provided detailed particulars of the evidence that she relies upon concerning her allegations that the father perpetrated family violence against her and the children.
The father has not, in any detailed way at any time, specifically responded to the allegations made by the mother, however, he maintained, by way of submission in Court, as he had earlier stated to the family report writer – that “situations arise when there are arguments within a couple”. He maintains that the mother twisted those situations and scenarios and the mother then sought to, on the father’s case, use those situations as evidence against him. That is, evidence that he perpetrated family violence.
In relation to the evidence of family violence – there has been no trial of the issues. There is the affidavit evidence from the mother, which is very detailed. Of particular note is the fact that the father has not at any time responded in a detailed way to those very serious allegations of family violence.
The children spoke to the family report writer and expressed their very strong wishes that they did not want to see their father. I note the following evidence from the family report (which is an exhibit). The relevant paragraphs commence from paragraph 74:-
“74. All three children presented quiet and unassuming demeanours. They sat quietly in the waiting area with Ms Warlow, and they appeared happy to be left alone whilst Ms Warlow was attending her interview.
75. X and Y attend G School. X is in year ten and Y is in year 8. They attend on sporting scholarships. X plays football at State level and has been invited to participate in the Sports Club development program. Y plays at a regional level. Both girls compete in sports. Academically they are reported to be bright, attentive students. Z attends H School. He is also on a scholarship and plays football at a national level. He is part of the Sports Club Academy, which is a pathway to professional football. He also competes in other sports. Z is also achieving well academically.
77. All three children are involved with the local swimming club. X is now a senior.
78. The children agreed to contribute to the assessment independently of Ms Warlow, although they refused to engage with Mr Rawlinson. Z and Y chose to be interviewed together. X chose to attend separately. However, for the purpose of the report, the children’s statements will be presented collectively. They all appeared to share the same views and each child presented information consistent with Ms Warlow's reports.
79. At the commencement of each interview I explained that our conversations would not require the children to provide information or answer questions unless they wished to do so. I also explained that the family report would be shared with the Judge and each parent. Likewise, I explained how a Judge might use a family report to better understand the issues impacting children. We also discussed the difference between wishes, feelings and best interests, and how these might be considered by the Judge. The children appeared to have a good understanding of the issues discussed.
80. The children reported attending the interviews because of, "What our dad has done" and because, "We don't want to see our dad anymore." They allege Mr Rawlinson has been violent to the whole family. They reported each of the incidents described by Ms Warlow in her affidavit, adding their individual recollections and perspective to the context of each event they reported being unable to remember a time when there was no conflict or aggression in the family home.
81. The children did recall brief reprieves when things might have been better for short periods of time. They recalled, "Mostly after we gave him another chance." Their collective views were summed up by one particular comment stating, "I think he does have problems. He could be loving and kind. He was fine when things were going good, but then he could turn. He would have rages, be angry and violent. It was like he wanted everything to be perfect and when it wasn't...."
82. All three children reported Ms Warlow intervening to protect them during many of the alleged incidents. For example, one comment stated, "Mum always protected us, and then he would start hurting mum." They described Mr Rawlinson regularly making highly derogatory statements about Ms Warlow and them, as well as making threats. They also recalled a number of incidents resulting in physical abuse. The children reported being aware of the voice message Ms Warlow played during her interview. One of the children reported finding it when they used Ms Warlow's phone.
83. The children reported being scared and anxious when Mr Rawlinson was living with them and they contrasted this against their current environment, which they collectively described as being, "More relaxed." One comment suggested, "No one's scared or stressed now." They collectively described a, "Happier house."
84. Consistently, all the children reported being disappointed by the number of alleged, "Broken promises" and Mr Rawlinson alleged failure to implement the changes he reportedly agreed. One comment was particularly pertinent in this respect suggesting, "He just lies, that's what he's good at. I think as we got older, we had opinions and he didn't like that." The children reported having a lack of faith and a lack of trust in Mr Rawlinson at this stage. Some comments also extended to being fearful of him.
85. Expressing their wishes and feeling about the future, the children made several statements that Mr Rawlinson would likely find difficult to hear. However, the general view was, the children believe Mr Rawlinson is only motivated towards hurting Ms Warlow. They feel unloved, and they wish to have no further time or contact with him until he can, "Get help and prove he can be a good dad."
86. One of the children commented, "If dad walks away, we won't need to deal with him. All mum talks about is him and to be honest, I'm just over it. All year it's been about him." The implication was that the conflict was causing too much instability and anxiety.”
The children’s wishes are crucial in this case. Their ages are – X, almost 17 and the other two children, Y and Z, almost 15. Their wishes need to be given significant weight.
I also note exhibit 2, which is the transcript of a voice recording left by the father. The father did not contest this. He admitted to the Court on 12 March 2020 that he left this voice recording after he had been removed from the former matrimonial home by an order of a Magistrate. The transcript of exhibit 2 states:-
“After the Magistrate ordered the DVO he left the courtroom and rang my 85year old mother screaming: HI MS J! JUST GIVING YOU A MESSAGE TO GIVE TO THAT FUCKING THING YOU BRED! TELL HER I HAVE JUST QUIT MY JOB AT EMPLOYER K! I WILL NOT BE MAKING ANY FURTHER PAYMENTS INTO ANY FUCKING ACCOUNTS! I HAVE RANG MS L AND TOLD HER SETTLEMENT IS OFF! I HAVE CALLED MR M AND TOLD HIM TO FORGET IT!
I HAVE LEFT MR N A MESSAGE TELLING HIM HE IS NO LONGER TO ACT
I AM TAKING EVERYONE DOWN!!! AND I DON’T GIVEA FUCK ABOUT THE KIDS!!!
AND I DON'T GIVE A FUCK ABOUT YOUR THING OF YOUR DAUGHTER!!!
(AUDIO CAN BE HEARD!!!)”
The contents of exhibit 2 are very disturbing. The father told the Court in a submission on 12 March 2020 that the message he left was disturbing. He regrets having left that message. The problem for the father is that the children have heard the message. This was confirmed in the family report.
There is also before the Court exhibit 1. The mother, through her solicitor, handed up to the Court recently dated letters from each of the children. I accepted those letters into evidence. They have been provided to the Court in an unconventional manner, that is to say, the normal approach is for children’s wishes and views to be conveyed to the Court via a family consultant or a family report writer. Given the ages I was inclined to accept the letters. However, there remains a lack of trust between the parties so I have come to the conclusion that the Court will not be placing any weight upon those letters. The Court does not need to place any weight on those letters. The children’s wishes have already been clearly expressed to the family report writer. There is no evidence to suggest that the children’s views, as expressed to the family report writer in 2018, have changed in any way whatsoever.
I do note that the Court’s attention was drawn to a couple of other paragraphs of the family report by the father. Paragraph 92 of the family report states:-
“92. The comments made by X during her interview may be of particular note in this context. She reported being exhausted by Ms Warlow consistently talking about Mr Rawlinson over the past twelve months. It does appear likely that the children have been exposed to Ms Warlow's negative perceptions and opinions, regardless of the facts.”
The observation made by the family report writer was that it appeared likely that the children had been exposed to the mother’s negative perceptions and opinions of the father, regardless of the facts.
The Court also notes paragraph 110 of the family report. In that paragraph the family report writer stated-
“110. If the claims of family violence are substantiated, Mr Rawlinson should be limited to supervised time pending a psychiatric evaluation.”
The opinion is – even if all of the mother’s evidence, and indeed the children’s comments to the family report writer, were accepted – that is to say, the allegations of family violence were substantiated – the family report writer’s recommendation was still that the father should be permitted supervised time.
It has often been stated and it is indeed the case that there is no magic in a family report. In that regard, I refer to a decision of the Full Court of the Family Court in Hall & Hall (1979) FLC 90-713. A family report is one piece of evidence and the opinion of a family report writer is just one piece of evidence to be taken into account.
It seems to me that in the circumstances of this case, noting the age of these children, their wishes have to be given such significant weight that it overrides a recommendation for supervised time. The views expressed by the children hold sway in this particular matter. They clearly do not want to see their father. They do not even want to have a discussion with their father. The mother, sensibly, agreed through her solicitor to an order that the father be permitted to write a letter to each of the children. I think that is the way the matter should proceed. In the children’s best interests, I do not consider it appropriate for there to be an order that they have to actually meet with their father.
I considered a situation whereby letters written by the father might be read to the children by a family consultant here at the Court. However, on reflection, I have come to the conclusion that it is not appropriate. The children do not want to be asked any more questions in relation to their views. They have clearly expressed their views, as long ago as 2018. The message left by the father, the transcript of which is contained in exhibit 2, would have been very disturbing for the children to hear, especially where he said:-
“I don’t give a fuck about the kids!!!”
Further, it is also very disturbing that the father had left a message which stated:
“I am taking everyone down.”
Submissions were made today about nooses that the father may have made or ropes that he might have worked on. The father produced to the Court at the hearing a rope which he said related to his sporting activities. The father said it is part of his work. He said that he needs to test the tying of knots and so on. I did not think it was prudent of the father to produce the rope in Court at the hearing. In fact, I consider it is a matter of concern that the father thought that it was a sensible idea to bring the rope in a bag to the Court. In relation to the father’s submissions that he used to the rope to tie knots – for his work – I make no particular findings in relation to the father’s submissions. I do note that the children were very troubled and concerned about the ropes (described as nooses) that the father left around the house and they stated as much to the family report writer.
Conclusion
The wishes expressed by the children to the family report writer, combined with exhibit 2, are more than enough to convince the Court there should be no face to face contact between the father and the children.
The order that will be made by the Court is that the father shall be permitted to write one letter to each of the children. He must do so within 28 days of the date of the final order. The date of the final order is 23 April 2020. Further, there will be an order that the mother shall ensure that the letters are brought to the attention of the children. In addition, there will be a further order that (apart from the letters that the father is permitted to write to the children on one occasion as ordered) there shall be no further contact or communication between the father and the children – unless such contact or communication is instigated by the children themselves. These orders follow as a result of the reasons that I have delivered after a consideration of the evidence and the submissions before the Court.
The balance of the father’s application is dismissed. Indeed, all other outstanding applications are dismissed.
The final orders made by the Court on 28 November 2018 remain in force.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 23 April 2020
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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