Re Natham (Limited Contact Consent Orders)

[2001] FamCA 628

[2001] FamCA 628

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE

No.  ML 9347   of 1999

IN THE MATTER OF:

Re Nathan (Limited Contact Consent Orders)

EDITED REASONS FOR JUDGMENT

BEFORE THE HONOURABLE CHIEF JUSTICE NICHOLSON

THE 12^th DAY OF JUNE 2001

APPEARANCES

Mr Glover of Counsel instructed by
Henaghan McLean
329 Lennox Street
RICHMOND  3121


Mr McGowan of Counsel instructed by
Susan Ruffin Solicitors
3A A'Beckett Street
INVERLOCH 3996

Mr Cronin of Counsel instructed by
McCormack and Co.
Suite 6 50-54 Robinson Street
DANDENONG  3175 for the Child Representative

CATCHWORDS: 

CHILDREN - Contact - Consent Orders - Child Abuse Allegation - Matter part-heard

NICHOLSON CJ:  

1. These proceedings were before me on April 30, May 1 and then on May 2 at which point they were adjourned part-heard until today.

1. They were contested proceedings as to contact in relation to a nine year old boy.  The case involved allegations of sexual abuse of the child firstly by a business partner and friend of the father and latterly by the father himself.  The father strongly contested the issue that he had abused the child. 

1. At the stage that the matter concluded part-heard before me, I had heard evidence from the mother and experts but I was in no position to form any concluded view. The matter, however, that I did raise with the parties at the time of the adjournment, was the fact that because the proceedings were for contact only and not residence, and because on any view the mother and to an extent the child considered the abuse had taken place by the father, it was difficult to see, whatever my findings were, how I could avoid making an order for supervised contact in the short term.  The mother had indicated that she was agreeable to such an order on a regular and frequent basis. 

1. On resuming the hearing today, I was handed minutes of consent orders by the parties and I was informed by counsel for the father that he had lost heart in relation to the proceedings and did not consider that any orders that might be made would be capable of being enforced.  Counsel indicated that his advice to the father had been to the contrary, but he was determined that he did not wish to continue with the proceedings. 

1. Counsel for the child representative indicated that although he did not consider that the proposed consent orders were adequate, he was not in a position to stand in the way of the making of such orders in all the circumstances. 

1. Counsel for the mother similarly indicated that, and restated that she had been prepared to consider additional contact but that in the circumstances, given the approach of the father, then the result contained in the minutes was satisfactory to her.

1. I expressed my own concern about the result and whether it was a satisfactory one.  This struck me as a case that hopefully would have proceeded through a period of supervised contact to contact being re-established.  That would have involved the need to re-establish confidence on the part of the parties.  It is still possible that that could occur despite these orders because it is always open for people to vary these sorts of orders by their own arrangements and it may be that in the end result, the parties may reach some agreement of their own for more extensive contact. 

1. My concern in the matter is that children do have a right to know and love their fathers, and have contact with them.  I am concerned that the orders in this case unduly inhibit that prospect.

1. The consent orders as varied by discussion during the adjournment this morning are that the husband have contact with the children firstly by telephone between the hours of 7 and 7.30 pm each Wednesday, secondly on Christmas Day, Easter Sunday and Fathers Day between 9 am and 1 pm and thirdly on the children's and the husband's birthday from 5 pm to 7.30 pm on a weekday and 9 am to 1 pm on a weekend.  The contact is to be at the expense of the husband at a children's contact centre or [under alternative supervision arrangements] at a place to be agreed upon between the parties. 

10. As I have said, it is a very limited form of contact and it is a much more limited form of contact than I would have in fact ordered, and I say that regardless of my eventual findings in relation to the matter.  However, in the circumstances, I have considered the position and I think that this is a classic case of where what is essentially private law limits the ability of the Court to make orders in the form that it would prefer, in that the husband cannot be forced to have contact if he does not wish it or wish to pursue it, and of course he cannot be forced to continue with legal proceedings, both parties having incurred, no doubt, considerable expense in relation to these proceedings. 

11. In all the circumstances, therefore, I consider it appropriate, albeit with a degree of reluctance, to make the consent orders proposed.

12. I did canvass in discussion with counsel the issue as to whether I should allow liberty to apply but as was pointed out by counsel for the child representative, this is the second occasion when something similar has occurred in this matter and on reflection, I consider it would place the wife in an unnecessarily disadvantageous position if the husband, in effect, were able to recommence the proceedings at will. 

13. No decision in matters of this sort, of course, is ever final and it would be open to him in the future, on demonstrating that there were fresh circumstances, to reapply.

14. The Court normally, however, would prefer people to reach agreement themselves on matters of this sort and I would hope, given the attitude of the mother to more liberal contact, that the parties themselves will be able to work out something in the future which may be more satisfactory so far as the children are concerned. 

I certify that the previous  14   numbered paragraphs are a true copy of
the EDITED reasons for judgment delivered by the Honourable Chief Justice Nicholson.

Danny Sandor
Senior Legal Associate to the Chief Justice