Saville & Saville

[2007] FamCA 1735

FAMILY COURT OF AUSTRALIA

SAVILLE & SAVILLE [2007] FamCA 1735

FAMILY LAW – CHILDREN – With whom a child spends time – Unacceptable risk – orders made for no time to be spent with the husband

FAMILY LAW – CHILDREN – With whom a child communicates – Orders made for the husband to have no communication save for sending the children cards on two occasions per year – With the wife being at liberty to refuse to give such cards to the children

FAMILY LAW – CHILDREN – Specific Issues – Inclusion of father’s surname in children’s names – Order made requesting the Registry of Births, Deaths and Marriages to consider amending the children’s birth certificates so that the husband’s surname forms no part of the children’s names

Family Law Act 1975 (Cth)

APPLICANT: Mr Saville

RESPONDENT: Ms Saville

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3651 of 2002

DATE DELIVERED: 15 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 15 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr G. Berkovitch

SOLICITOR FOR THE RESPONDENT: Pearsons

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms M. Stavrakakis

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Donald S. Lampe

Orders

1. The wife have the sole parental responsibility of making all decisions with respect to major long‑term and day-to-day issues regarding the children, J, born on … January 2001, and R, born on … May 2002.

2. The children live with the wife.

3. The children be known in all respects by the names as provided in paragraph 1 hereof.

4. It is requested that the registrar of Births, Deaths and Marriages of the State of Victoria give consideration to the amendment of the birth certificates of the said children to provide for their names in accordance with these orders.

5. All orders pursuant to which the husband spends any time with the children be and are hereby discharged.

6. The husband communicate with the said children by way of forwarding cards to them on two occasions each year, being their birthday and one other occasion, provided however that such card be forwarded to the children from the wife at an address to be provided by her and the wife be at liberty, in her absolute discretion, to decide whether such card should not be given to either child on the basis that it contains any inappropriate material.

7. Save as provided in paragraph 6 hereof, the husband not communicate with the said children.

8. Order by consent that the wife be and is hereby authorised to obtain a passport for the said children, notwithstanding that the husband has not signed any application for such passports.

9. All applications are otherwise dismissed and removed from the list of cases awaiting hearing.

10. General liberty be reserved to all parties to apply.

11. It is certified, pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) that this matter reasonably required the attendance of counsel.

12. I direct the return of exhibits and subpoenaed documents in the usual way.

IT IS NOTED that publication of this judgment under the pseudonym Saville & Saville is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3651 of 2002

MR SAVILLE  

Applicant

And

MS SAVILLE  

Respondent

REASONS FOR JUDGMENT

1. These are applications seeking that two young children spend time and communicate with their father.  The major factual issue has been the question of the role of the husband's violence towards the wife and the children and what effect that should have on the applications.

2. Before making findings with regard to the relevant facts, I must make some findings with regard to credibility.  I have heard from a number of witnesses.  They may be divided into two categories.  The first of those categories is the lay witnesses and the second is the expert witnesses.  The lay witnesses have been the parties, being the parents of the children, and on the husband's side, his three aunties, and on the wife's side, her mother.

3. Issues of credit are in two categories.  The first of those relates to the question of whether prior to a very serious incident of violence by the husband towards the wife, there had been previous violence between them, and the second relates to a specific event on 22 July 2006.  With respect to the first of those, the essential evidence is as between the parties and as partly corroborated by the experts. 

4. I will detail my reasons for this finding but at this stage find that as between the husband and the wife at every point at which there is a conflict in the evidence, I prefer the evidence of the wife to that of the husband, unless I find to the contrary.  With regard to the events of 22 July 2006, as between the wife and her mother on the one hand, and the husband and his three aunties on the other hand, at any point at which their evidence conflicts, I prefer the evidence of the wife and her mother to that of the husband and his three aunties unless I find to the contrary.

5. With respect to the expert evidence, I have heard from two psychiatrists and a family consultant.  In all respects, I accept the entirety of their evidence.  Again, I will make reference to them in due course.

6. I now turn to the relevant facts.  The husband was born in Fiji of Indian culture and background in 1976.  He came to Australia at a time that is not relevant.  He never knew his father.  His mother committed suicide.  He has lived with his grandfather and has contact with his three aunties and other members of their family, all of whom live in Melbourne. 

7. The wife was born in Fiji in July 1982 and is aged 24 years.  She has family in Fiji.  She migrated to Australia in November 1999.  She has some family here and also family remaining in Fiji. 

8. The parties married in March 2001.  The marriage was a culturally arranged marriage in Fiji.  Obviously the parties were both very young at the time of that marriage.  The parties' older child, J, was born in January 2001.  She is presently aged six years.  She is one of the children who is the subject of this application. 

9. It is common ground that the parties separated on 20 September 2001.  However, it is not common ground as to whether there was any resumption of cohabitation.  The wife swore that there was no resumption of cohabitation and that that separation was the final separation between them.  The husband swore that the parties reconciled for a period of three months.  The husband has submitted that the reason for the separation was as a result of pressure from the wife's parents who wanted the wife to be dependent on them for assisting with care of, at that stage, the one child, and the second child soon to be born, thereby assisting them in obtaining residence in Australia.  I prefer the evidence of the wife. 

10. I will shortly relate an event which is at the apex of the evidence in this matter, but I am satisfied in all the circumstances that the marriage between the parties was characterised by significant and increasing violence by the husband towards the wife, often influenced by alcohol, and I am also satisfied that at times, the husband assaulted J.  I am satisfied that that violence was frequent and significant.  I accept the evidence of the wife that the husband used to hit her virtually every single day.  It didn't matter whether he was drunk, but he usually hit J at night-time when he came home drunk. 

11. In this regard, I refer to paragraph 3 of the husband's affidavit sworn on 21 May 2002.  The husband swore on that date:

    There had been violence between myself and my wife, which I now deeply regret.  My wife obtained an intervention order against me on 8 October 2001.  Annexure BS1 is a copy of the intervention order.  I did not oppose her application.

12. During his viva voce evidence, the husband swore that there was no violence, other than the incident to which I will shortly refer.  That paragraph of the affidavit was put to the husband, as it is clearly contradictory to his viva voce evidence.  He swore that he was mistaken in swearing that paragraph and sought to withdraw it.

13. In my view, it is improbable in the extreme that the husband swore on 3 June 2002 that there had been violence between himself and the wife which he regretted when there had not been such violence.  It suited his evidence not to have had violence at this time but I do not accept his evidence.  I regret to find that his viva voce evidence that there was no such violence was not the truth and that the contents of paragraph 3 of that affidavit which I have quoted above is the truth.  I further find that in withdrawing that, he also gave untruthful evidence.  That is one of the major reasons for my finding against his credit.

14. On 18 October 2001, the wife obtained an indefinite intervention order against the husband.  In referring to it as "indefinite", I note that it is quite unusual, in that intervention orders are usually for a fixed period of time.  That is the intervention order referred to in paragraph 3 which I have quoted above.

15. On 23 December 2001, there was a Christmas prayer ceremony at the home of Ms A who was one of the aunties who gave evidence to which I have already referred.  The wife went to that with the parties' child, J.  The husband came.  The wife swore that the husband threatened to kill her.  The wife swore that Ms A had been forced to lock the wife and J in a room for their own protection.  The police were called and the husband was arrested and bailed for breach of an intervention order.  Ms A denied the wife's evidence.  I will refer to her evidence in another context in due course and specify my basis for not accepting her evidence.  I prefer the evidence of the wife.

16. On 7 January 2002, orders were made in the Federal Magistrates Court on the wife's application pursuant to which residence of J was granted to the wife and all questions of the husband's contact was reserved.  The husband did not attend that hearing. 

17. The husband swore in these proceedings that at that time, the parties were living together.  I do not accept that evidence.

18. On 12 March 2002 the husband pleaded guilty to the breach of the intervention order and was placed on a bond.  That refers back to the Christmas incident to which I have already referred.  The husband concedes that at least by 19 March 2002, the parties had separated.  I have already made a finding on that.

19. The parties' second child, R, was born in May 2002, presently aged five years.  On the day after R's birth, the husband went to the hospital.  There is a dispute between the husband and the wife as to whether the wife had given permission to the husband to attend the hospital.  The wife said that the husband attended without permission.  The husband said that he had been invited. Again for the same reasons of my general findings with regard to credit, I prefer the evidence of the wife.  Security was called and the husband was in due course escorted from the hospital.  There was a further incident on the following Sunday when the husband visited the wife.

20. On 18 April 2002, there was a variation of the intervention order in circumstances which do not matter here.  On 3 July 2002, orders were made for contact between the husband and the children to be supervised. It would appear that the husband saw the children two or three times as a result of that order.

21. The events which I have referred to as the apex of the facts in this matter occurred on … July 2002.  On that day, the husband went to the wife's home for supervised contact.  It is common ground that in the home, the husband picked up a knife and stabbed the wife numerous times; the question is, what immediate contact the children were having.  The wife asserted that at the time of that stabbing - and it was in various parts of the wife's body - she was holding the child, R, in her arms. 

22. The husband swore that he could not remember any of the facts regarding that stabbing, other than the fact that he was quite adamant that the wife was not holding R in her arms.  In my view, it is extremely improbable that he would remember only those facts and no other fact.  That is a further reason for my finding with regard to preferring the wife's credit.  I accept the wife's evidence in this regard.  The other child, J, was also in the house, I think in a separate room, and I note that this actually occurred during a supervised contact period.  The husband was immediately arrested and remained incarcerated in circumstances to which I will come shortly.

23. On 20 August 2002, orders were made, suspending the husband's contact with the children.  A family consultant, Ms B, completed and published a report on issues relevant to this family and particularly the question of the husband's role in it.  She noted that the husband was more focused on his own needs rather than those of the children, that he perceived himself as being a victim and that his full rights as a parent were being obstructed.

24. As a result of the stabbing in July 2002, the husband was presented before the Supreme Court of Victoria in April 2004.  An order was made, sentencing the husband to a period of seven years' imprisonment and fixing a nonparole period of four years.  A declaration was made that a period of … days had already been served, thereby dating it back to the date of the husband's incarceration immediately following the stabbing.  The husband was released on parole in July 2006 and remains on parole until July 2009.

25. On 3 May 2006, Ms B published a second report and I will discuss her evidence in due course.  Forthwith upon the husband's release from prison, the Department of Human Services of the state of Victoria became involved because of protective concerns with regard to R.  Ms B swore to the department, indicating that were contact to be granted, they may well move in the Children's Court pursuant to state legislation.  The Department's file is evidence in these proceedings and presents a very concerning picture and also confirms the department's protective concerns in the event that contact were granted.

26. Within a very short time of the husband's release, probably a matter of days, the wife and the children were in a shopping centre.  By complete chance, the husband was also there but in my view that does not play any particular role at this point. 

27. I now move to 22 July 2006, the facts of which occupied a significant amount of time during these proceedings and have their precursor on … July 2006.  … July 2006 is obviously the day after the husband's release from prison.  In his affidavit sworn on 2 October 2006, the husband swore that at approximately 11 am on … July 2006, he received a telephone call from the wife.  He swore that he spoke to her for approximately one and a half hours on the telephone regarding the children.  He asked her if he could see the children and she, on his evidence, swore that she would allow him to do so.  He swore that the wife said that she would bring the children to his house for that purpose and she told him that she would call him back later to make arrangements.

28. He then swore that on or about 7.30 pm on the same day, the wife called him again and they had a conversation which lasted approximately two and a half hours.  He swore that they mainly talked about his seeing the children and making some arrangements so that he could see them.  The wife denies those phone calls.  In her affidavit, sworn on 9 November 2006, she refers to that evidence at paragraph 2.  She annexes a statement of her telephone bill which indicates the numbers dialled from her home telephone.  The telephone number of the husband is not in dispute and is admitted as being a number dialled on a number of occasions from the wife's telephone.

29. On … July 2006, there are five entries of telephone calls being made from the wife's telephone to the husband's telephone.  In the first place, I accept the evidence of the wife's mother that she made some of those calls.  However, the calls themselves are as follows:  12.25 pm, 12.26 pm, 1.12 pm, 1.26 pm, 4.45 pm.  It is immediately evident that no call was made at either 11 am or 7.30 pm or anywhere near that.  It was not put to the wife that she might have telephoned from another phone and there is no evidence to support that proposition.

30. On the basis of the wife's telephone records and the evidence, I find that the wife's version of these events is preferable to that of the husband.  This is another basis on which I have made the credibility finding which I have done against the husband. 

31. I then come to the events of 22 July 2006 of which the telephone calls of … July 2006 were put as being the precursor.  Returning to the husband's affidavit to which I have already referred, he swore that on 22 July 2006, his auntie, Ms H, came with the wife and the children and the wife's mother to the husband's home.  The wife denies that this happened.  The husband then swore that all of his family were present at the time of the reunion and:

    Everything was fine between us.  My ex-wife was okay with the whole process. 

32. The husband further swore that after that meeting, the wife had agreed to his seeing the children again and that she would agree to his spending time with them and would not oppose this at these proceedings.  He then deposed that the wife and the children left his home at approximately 2 pm with two of his aunties, they being the other two of the three to whom I have referred, Ms A and Ms L, who drove them and the children home.  He swore that at this time, J was crying and she did not want to go with her mother but wanted to stay with him.  In these regards, the husband was corroborated by the three aunties to whom I have referred, they being Ms A, Ms H and Ms L. 

33. There were a number of unusual aspects about the evidence of those three witnesses.  In the first place, the affidavits of Ms A and Ms L were virtually identical.  The only substantial difference between them was in the paragraphing.  Those affidavits were identical to the extent that they made the same mistake.  They both referred to the husband having been released from gaol in August 2006, rather than in July 2006.  Ms L swore in viva voce evidence that her sister, Ms A, spoke very little English and that she was not proficient in particular in reading or writing in the English language.  It was not her first language. 

34. Ms L gave evidence before Ms A and swore in response to questions with regard to the identical nature of the two affidavits that she, Ms L, had written the affidavits and she had given the wording to her sister, Ms A.  Later on, Ms A gave evidence and was quite clear in swearing that she had given the words to her sister who prepared the affidavit.  During her cross‑examination I challenged her on that proposition and told her of Ms L's evidence in that regard.  Ms A admitted that her evidence was incorrect in that regard. 

35. I find that in giving evidence that she had actually prepared the words and given them to Ms L that Ms A lied.  I further find that at least Ms L and Ms A constructed their evidence together and made the same mistakes with regard to their evidence.  The manner of their giving evidence was different but in each case was not given with the conviction I would have expected from witnesses professionally trained in nursing and aware of their surroundings, but rather was hesitant and lacking in credibility.

36. In addition to that, the wife was corroborated in her assertion that this event did not occur in two ways.  First, she swore both in her affidavit evidence and viva voce that on that day, she, her mother and the children had gone to a play organisation.  She presented a receipt for entry to that organisation dated 22 July 2006.  Insofar as it is corroboration, it is deficient in that it did not have the times on it, but it certainly corroborated attendance by somebody - and the names again are not included either - on that date. 

1. However, the further corroboration was from the wife's mother who swore that she had gone to the play organisation with the wife and the children on that day and neither the evidence of the wife nor the mother was shifted in any way, let alone a material way.

2. Given my fundamental problems with the credibility of both the husband and his three aunties, as well as the unshaken evidence of both the wife and the mother and the partial corroboration of that evidence, I unreservedly accept the evidence of the wife and her mother over the evidence of the husband and his three aunties in this regard and find that the visit of 22 July 2006 did not take place.

3. However, it is appropriate that I add an addendum to these facts.  That addendum is that even if I were incorrect on my findings in this regard, I am entirely satisfied that the findings which I will make with regard to the best interests of the children and the ultimate disposition of these applications would not be altered.  These facts are put by the husband to substantiate the proposition that days after his release from prison, the wife, by her actions has demonstrated that she is not fearful of the husband.  Even if these events of 22 July 2006 had occurred, I do not accept that fundamental proposition.  I will develop that in due course.

4. Since the husband's release from prison, he has not spent any time or communicated with the children.  On 8 March 2007, Ms B published her third report.  All of those reports are evidence before me. 

5. I now turn to the proposals of the parties for disposition of this matter.  The husband submits that he has developed to the extent that it is appropriate that he spend some time and communicate with the children.  While he is not specific with regard to particulars of that proposal, he accepts that at least in the short time, it can only be for short periods of time and then supervised.  I would interpret his proposal as including the proposition that over time, it be increased and presumably eventually to the extent that it be unsupervised. 

6. There are several other ancillary issues which I must also decide and in discussing the question of the proposals, I now consider the husband's proposals in those regards.  In the event that I were to be against him with regard to spending any time with the children, he submits that he should have liberty to know of any health difficulties, that he should be able to send them cards and presents and that he have some awareness of their development.

7. There is also a major issue with regard to the formal and informal names by which the children should be known.  It is submitted by the husband that the children should have his surname of Saville. 

8. Turning to the proposals of the wife, the concept of the husband spending any time with the children is vehemently opposed.  There is some degree of concession, although not complete, with regard to the receipt of cards.  It is submitted on behalf of the wife that the husband's surname should not form any part of the names of either of the children.  The husband has agreed to the wife's proposal that the wife should be able to obtain a passport for the children. 

9. With regard to the question of time to be spent by the husband with the children, the independent children's lawyer supports the wife's position.  The independent children's lawyer submits through counsel that cards on perhaps two occasions each year would be acceptable and particularly supports the wife's position with regard to the names.  The question of a passport is no longer an issue.

10. I turn to a discussion of those issues.  In the first place, the best interests of J and R are the paramount consideration in these proceedings.  "Paramount" does not mean sole; "paramount" means most important.  I must then have regard to the various objects and principles included within Part VII of the act pursuant to which this application is to be decided.  Those objects and principles provide that the children's best interests would be met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives, but at the same time protecting them from physical or psychological harm or exposure to abuse, neglect or family violence, ensuring that they receive adequate and proper parenting and ensuring that their parents fulfil their parental duties and responsibilities concerning the children’s care, welfare and development.

11. There are a number of principles which underline those objects which apply except in circumstances in which I consider that their application would be contrary to the children's best interests.  The children have a right to know and be cared for by both their parents.  They have a right to spend time on a regular basis with both their parents; require parents to jointly share duties and responsibilities with regard to them and the children have a right to enjoy their culture.

12. I emphasise again that those principles are conditional on them not being found to be contrary to the best interests of the children.  I therefore must now turn to the question of those best interests but emphasising the amendments to the act by those principles which promote the ongoing significant involvement by both parents in the lives of their children.

13. The act provides a presumption that parents will share the parental responsibility for making decisions with regard to their children.  That presumption is rebuttable, particularly in circumstances of exposure to family violence, abuse and neglect.  I regret to find that the level of violence and abuse perpetrated by the husband against the wife and the child J and, at least vicariously, the child R acts to clearly rebut that presumption.  The husband's actions have placed the wife and the children at an extremely high degree of risk physically, psychologically and emotionally.  I accordingly find that the presumption is rebutted.

14. I further find that there is no other factor which would in any event, despite the rebuttal of that presumption, lead me to find that the children's best interests are accommodated by the husband having any parental responsibility for the children.  There will be an order for sole parental responsibility to the wife.

15. Having found against the presumption of parental responsibility, I am then not required to consider the question of either equal shared time or substantial and significant time to be spent by the husband with the children.  In any event, on the basis of the proposals of all parties, they are not relevant matters for my consideration.  On the best view of the husband's case and on his own concession, he cannot expect to spend more time with the children other than in supervised circumstances and for very short periods. 

16. I accordingly turn to the various primary and additional factors to which I am required to have regard in considering these applications.  I again refer to the physical, psychological and emotional violence and abuse as being a fundamental issue in consideration of the primary factors.  It is common ground that an order should be made in favour of the wife that the children live with her.  The only substantive question other than the other issues to which I referred earlier and which I will consider separately relate to what, if any, time the husband is to spend with the children. 

17. I find that no such time should be spent.  I make that finding for the following reasons:  again I refer to the violence which does not need to be repeated.  I accept the evidence of Ms B, together with the psychiatric evidence of Dr S, who interviewed the husband, that the husband is in denial with respect to the seriousness and significance of his perpetration of violence and therefore poses a very high degree of risk, both presently and in the future to the wife and the children.  In his second report dated 1 April 2007 at paragraph 24, Dr S stated:

    There are no overt psychiatric conditions which might preclude [the husband] having contact with his children.  There is no indication of likely physical threat to the children, either due to current problems with [the husband] controlling anger or with grudges which might be enacted through the children.  However, his attitude to the domestic violence in their relationship and to his attack on his ex-wife and its effect on his children is one of superficial remorse, without a deeper understanding of the justifiable fears described by [J] and by [the wife].  My predominant concern would be that contact would lead to an increase in [the husband]'s aggrievement, that his son does not carry his surname, frustration should his children not interact easily with him and that these situations might lead to psychological deterioration.

    25:  I recognise that [the husband]'s mental health is only one issue to be taken into account in determining access rights.

    26:  Should the court in fact determine that [the husband] should have contact with his children, I would recommend stringent conditions, including that he be continually under visual supervision by family members and by paid staff, that contact only take place at a contact centre and that [the husband] be searched for weapons on every occasion prior to contact.  This reflects the serious harm inflicted on his ex-wife in a previous supervised contact visit, necessitating great precautions should there be further contact.  Contact in such event should also provide an opportunity for the children to leave first, while [the husband] remains in the contact centre, in order that [the husband] could not follow them or in any way obtain information about their place of residence.  Finally, I would recommend that in such an event, he would require ongoing psychological contact as a condition of access, both to support him and to monitor for psychological deterioration.

18. The husband informed me during this trial that he had done a number of courses while he was in prison.  It would appear that he has taken no step with regard to rehabilitation or therapy since his release from prison and has no intention of doing so.  The evidence of Dr S, supported by his viva voce evidence is in accordance with my observations.  Given the seriousness of the violence and the denials by the husband, the type of supervision to which Dr S refers would in my view need to be in place indefinitely and certainly at least for a number of years. While not conclusive, I note that that is a contra indicator to spending any time at all and I take that matter into account.

19. Dr K examined the wife.  He has not examined the husband.  However, subsequent to his examination of the wife, he was given affidavit material which he read.  With regard to the wife, he expressed the view that she has post‑traumatic stress disorder, fear and depression resulting from the violence of her ex-husband, that she is capable of looking after her children, although because of the fear and the situation, it is difficult for her, and by extension, the children, to live a full and active social life. 

    Any contact that she has to have with her ex-husband, direct or indirect, and/or through the children would seem to put an unreasonable burden on her and be very likely indeed to cause a flare‑up of her symptoms and to act powerfully to reduce her ability to satisfactorily parent the children.  For her sake and then indirectly for the children's sake, one would have to argue that the father should have no contact with the children.

20. The factor of the wife's fear and the effect that any order that the husband spend time with the children would have on her ability to parent is a relevant and highly concerning factor in these applications.  I also take that into account in my consideration.  Dr K's report dated 5 February 2007 from which I have just quoted was supplemented by a further written report dated 16 February 2007 following his having read affidavit material in this matter.

21. In that later report, Dr K referred to having reviewed his report as a result of having reviewed the documentation.  He stated:

    The documentation provided is certainly consistent with the history I obtained and the opinion I provided.  It seems quite clear that the estranged husband was violent, aggressive and threatening in the presence of others, in the presence of the children and indeed made this attempt on her life with children and others present.  She would appear to be perfectly justified in her fear of having any contact with him and also perfectly justified in her fear of the children having to have any contact with him.  So having read that documentation, I see no reason to change the opinion I expressed in my report dated 5 February 2007.

22. I note in that context again that Dr K has not seen the husband, but his observations with regard to the effect on the wife are in accordance with my observations and the entirety of the expert evidence in these proceedings.

23. Finally, I turn to the evidence of Ms B.  I have already stated my acceptance of Ms B's evidence. She has conducted an extremely thorough and comprehensive assessment of this matter over a period of two years in three reports, the last one being in the last couple of months.  She refers in particular to J and J’s fear of her father.  She states at paragraph 34 of her last report:

    At present [J] remains a vulnerable child, struggling to achieve and progress at the same pace as her peers.  In addition to the maternal family, [J] has access to counselling through Victims of Crime and she has the support of her current school.  As indicated in previous reports, [R] does not know [the husband] and does not identify him as a father figure.  Given the fear that [the husband] engenders in [R]'s mother and sister and the extended maternal family, it is difficult to see how [R] would develop an alternative view of his father.  In these circumstances, the benefit to [R] of spending time with [the husband] is minimal.

24. A little earlier in that report, with regard to J, Ms B refers to J's fantasy of killing her father.  Ms B stated:

    [J]'s fantasy of killing [the husband] could be related to her recent unexpected meeting with him or to the ongoing threat of spending time with him or indeed, if what [the husband] alleges is true, then actually having spent time with him.  It is also possible that continuing to revisit her original trauma in conversation with various professionals and in connection with court proceedings, [J] has felt disempowered and traumatised.  The fantasy of killing [the husband] may be an attempt by [J] to reclaim some power and control over hers and her family's life.  If [the husband] continues to threaten [J]'s security via his behaviour or vicariously through court applications, [J] is likely to become increasingly disempowered and her normal development will be further compromised.  Until [J] has recovered from her trauma and matures somewhat, by continuing to revisit the original trauma and consider the prospect of spending time with her father, she will be at risk of becoming mistrustful of professional intervention and becoming hypervigilant, isolated and withdrawn.

25. In her viva voce evidence, Ms B developed the question of the husband's ongoing denial of his violence towards the wife and the children as I have already found.  I agree with Ms B's evidence that that constitutes an extremely disturbing feature.  I agree with Ms B's evidence, using my words, that the husband is effectively intellectualising that and does not appreciate the profound emotional and psychological significance of his treatment of them.  The fact that he is unable to acknowledge them is in my view one of the most serious negative factors in his application and while he made statements with regard to appreciating what he had done, in my view I agree with the expert evidence, particularly from Dr S and Ms B, that those statements were superficial and in my view intellectualised and did not really appreciate the significance.

26. On all of those bases, I find that the husband constitutes to an extremely high degree an unacceptable risk to the wife and the children if he spends any time whatsoever with them in the future.  In my view, that risk cannot be protected by supervision of any sort whatsoever for the reasons which I have stated.  Accordingly, as I have already said, there will be an order for no time to be spent.

27. Ultimately, I accept the position of the independent children's lawyer with regard to cards which, while not entirely positive, is accepting.  I think there is an advantage for the children in being able to receive cards from their father on two occasions each year, on their birthday and on one other occasion, but those cards must be forwarded to the wife who will be reserved an absolute discretion to decide whether it is appropriate to give to the children.  I have complete confidence in the wife's preparedness to promote a relationship between the children and the husband were she to be persuaded that the husband would act protectively.  I am very impressed with the fact that at all times, the wife has acted entirely protectively towards the children and I have no doubt that she will continue to do so in the future.

28. I see this as being a long‑term issue.  I am not going to make any order limiting the husband and I am not going to make any order under section 118.  I do not believe that these proceedings have come to that stage, although if there were any protected litigation which were found to be unreasonable, the husband may find himself at risk.

29. I will make an order for the granting of the passport and I note that is by consent. Finally, I turn to the issue of the surname which I know is an extremely difficult one, particularly for the husband.  I regret for his sake to find that I accept the submission of counsel for the wife, supported by the independent children's lawyer.  The level of violence, the level of denial and the inability of the husband to face the situation as it is and the seriousness of that situation, leads me to accept the evidence particularly of Ms B, that a line needs to be drawn to allow the family, constituted by the wife and the children, to make a new beginning.

30. I do not regard the inclusion of the husband's surname in the names of the children as being part of that new beginning.  I do not see that the question of the inclusion of that surname would influence in one way or another the question of whether a relationship will be resumed between the husband and the children at some time in the future.  That is up to two factors:  the first of those is the husband's realisation of the enormity of his actions and his preparedness to do something about it and the second is the possible persuasion of the wife that the husband has in fact changed.  I repeat, I see that as being a very long‑term matter indeed, and that is solely as a result of the husband's own behaviour.

31. The surnames of both the children will be … and the name of Saville will not be included in either of those names.  I will order accordingly.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date:  May 2009