Shelley and Hunt and Ors

[2010] FamCA 225

FAMILY COURT OF AUSTRALIA

SHELLEY & HUNT AND ORS [2010] FamCA 225

FAMILY LAW – CHILDREN – Best interests

Family Law Act 1975 (Cth) Pt VII
Evidence Act 1995 (Cth) s 140

M v M (1998) 166 CLR 69
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Johnson and Page (2007) FLC 93-344
W and W (Abuse allegations:  unacceptable risk) (2005) FLC 93-235

APPLICANT: Mr Shelley

FIRST RESPONDENT: Ms Hunt

SECOND RESPONDENT: Ms Tamer

INTERVENOR: Director General, Department of Human Services

FILE NUMBER: (P)NCC 2213 Of 2007

DATE DELIVERED: 23 February 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATES: 17 & 18 February 2010

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE FIRST RESPONDENT: Mr Bateman

SOLICITOR FOR THE FIRST RESPONDENT: Walker Legal

COUNSEL FOR THE SECOND RESPONDENT: Ms Hollins

SOLICITOR FOR THE SECOND RESPONDENT: Paul Couch & Associates

COUNSEL FOR THE INTERVENOR: Mr Moore

SOLICITOR FOR THE INTERVENOR: Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Suppressed by order.

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Suppressed by order.

Orders

1. That M born … February 2000 and W born … February 2001 (“the children”) spend time with the applicant father for a period of four hours once each calendar month such time to be supervised by either Mr D Shelley or Ms Tamer.

2. For the purposes of facilitating compliance with Order 1 above D Shelley or Ms Tamer shall collect and return the children from the mother’s home.

3. In the absence of agreement between the mother, the father, D Shelley or Ms Tamer as to when the children will spend time with the father it shall take place between 10.00 am on 2.00 pm on the fourth Sunday of each month.

4. In the event that the father is not available to spend time with the children the supervisor (D Shelley or Ms Tamer) shall still collect the children at the appointed time and return them in accordance with Order 3.  It is noted that it is the parties’ and Court’s intention that during such period of time the children would spend time with either D Shelley or Ms Tamer.

5. The father is restrained from communicating or spending time with the children whilst he is under the influence of drugs or alcohol.  In the event Ms Tamer or D Shelley consider that the father may be affected by drugs or alcohol, they are restrained from including the father in the scheduled visit and his time with the children on that occasion is suspended.

6. Ms Tamer and D Shelley are required to do all acts and things to ensure that J does not come into contact with the father while he is spending time with M and W.

7. In the event that M and/or W wish to speak with the father by telephone and the mother believes it is in the children’s interest for them to do so she shall facilitate telephone contact to a number nominated by the father.

8. The mother is restrained from facilitating telephone contact between M and/or W and the father at a time J is in the home.

9. In the event the father fails to spend time with the children for a period of 12 months all orders in his favour which would enable him to spend time with the children in the future are suspended.

10. THE COURT NOTES that Mr D Shelley gave a written undertaking to supervise in accordance with Exhibit ‘D’.

11. THE COURT NOTES that Ms Tamer gave an oral undertaking to supervise upon the same terms and conditions as are contained in Exhibit ‘D’.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

13. That the names of the Independent Children’s Lawyer and counsel who appeared on the Independent Children’s Lawyer’s behalf be suppressed.

14. All outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 2213 of 2007

MR SHELLEY

Applicant

And

MS HUNT

First Respondent

And

MS TAMER

Second Respondent

And

DIRECTOR GENERAL DEPARTMENT OF HUMAN SERVICES

Intervenor

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. These are parenting proceedings which concern three children, J (aged 13 and a half), M (aged 10) and W (aged 9).  M and W are full siblings.  J is their half sister.  Mr Shelley who is aged 31 (“the father”) is M and W’s father.  Ms Hunt who is aged 33 (“the mother”) is the children’s mother.  J’s father is deceased.  The mother has another son by a different man with whom that child resides.

2. The three children with whom this Court has been concerned were, for many years, overseen by a raft of health and welfare agencies.  This is because their parent’s capacity to meet their needs is seriously compromised.  Because of the seriousness of the risk issues which arose from their parent’s limitations and their long history of involvement with the children, the Director General of the Department of Human Services (DoHS) accepted the Court’s request to intervene in the proceedings. The Court also appointed an Independent Children’s Lawyer to represent the children’s interests.

3. Although when the final stage of this Division 12A hearing commenced there was a vast array of issues said to require consideration, once the issues were teased out with counsel for the parties and the father (who was unrepresented) it became clear that if given the opportunity they were likely to agree on most.  Reference to “parties” was used to distinguish between the approach which the parties adopted and that taken by those who appeared for the children. Of itself, that all parties were agreed yet the Independent Children’s Lawyer disagreed would not warrant particular comment.  In this case, however, for reasons discussed later, the approach adopted at trial by those appearing for the children was troubling. Had the Independent Children’s Lawyer attended to that component of their role commonly referred to as “an honest broker” it was likely the parties could have been guided to a child focussed and appropriate outcome. Of equal importance, they would not have been subjected to exploration of painful issues with the evident unnecessary distress this caused vulnerable parents and the children’s well intentioned grandparents.

4. Ultimately, there were two issues which required adjudication.  Firstly, whether M and W should spend supervised time with their father for a few hours monthly or two to three times a year.  All parties adopted the former approach.  The Independent Children’s Lawyer submitted in favour of the later course.  The other was whether M and W should, with the mother’s assistance, be able to occasionally telephone the father.  All parties agreed this was desirable.  The Independent Children’s Lawyer submitted against this course. 

5. Following the parties’ initial separation in 2001 they reconciled then separated on a number of occasions, before finally ending their relationship at Christmas 2003.  During the period following their first separation and April 2006 the boys variously resided together with the mother, with the father, had prolonged periods without contact to him and there were periods when there were week about shared care arrangements. 

6. This ended in April 2006 when the father realised he was unable to care for the boys and handed them over to the mother.  The father then departed for Queensland where he lived for 18 months.  It was a further 12 months after he returned before he attempted to see the children.  By the time the Court expert, who is Dr R (a child and family psychiatrist) saw the children in mid 2009 it was apparent to him that both parents’ parenting capacity was seriously compromised.  Accordingly, and contrary to the children’s views, it was his opinion that the best outcome for the children would be for the three of them to reside together with a responsible, caring and competent foster carer.  However, he recognised that because of J’s degree of disturbance, the prospect of a successful foster placement was unlikely. Consequently, and provided the mother cooperated with the various professional supports which had been made available to her and she did not re-partner, he supported the children remaining in her care.  It was his recommendation that the boys spend time with the father supervised by his step-father once a month.

7. In terms of the boys’ contact with their father, pending this hearing, they continued to see him under DoHS supervision.  The father did not attend every scheduled visit citing health or alcohol related impairment.   His unreliability was distressing to the boys.  When he attended, the boys were happy to see him and wanted to see him more frequently and without a supervisor.

8. During the October 2009 school holidays, J took an overdose of medication following which she was hospitalised and came under the care of a child psychiatrist. Following her discharge from hospital she returned to her mother’s care.  A few weeks later J attacked her mother in a most serious way.  Both boys were at home when the attack occurred.  J was again hospitalised where she remained for five days.  With the mother’s agreement, J was discharged from hospital into the temporary care of Mrs Tamer. Mrs Tamer is the father’s grandmother.  Were it not for Mrs Tamer’s support, it is almost certain J would have been placed in either foster care or a group home.

9. By the time this hearing commenced, J had settled reasonably well in Mrs Tamer’s home.  Initially she found her grandmother’s rules too strict and rebelled.  Slowly she has adapted and she has settled at school and is now regularly spending time with her mother and brothers.  Although when the hearing commenced there was a contest about J’s future living arrangements, that is whether she should remain with her grandmother or return to her mother, these were settled and orders were made by consent in favour of Mrs Tamer on the second day of the hearing.  DoHS will continue to play a significant role in supporting J as will her sexual assault counsellor. Mrs Tamer has a constructive relationship with the mother and her role in enabling J to remain in her family cannot be overstated.  No earlier than 12 months hence it is possible that J may return to live with her mother and brothers.  Unfortunately, her degree of disturbance is such that this child’s future is necessarily uncertain.  In the Court’s view these risks increase if she leaves her grandmother’s care.  Thus is was a surprise to the Court that, apparently based on J’s “instructions” the Independent Children’s Lawyers submitted in favour of only short term orders in favour of Mrs Tamer.

10. It was the mother’s case that four of her partners sexually abused J with the first instance of sexual abuse occurring before J was two.  It was said J was sexually assaulted by her father.  Also by another person named L who has since partnered with the mother’s sister.  Records produced by New South Wales Police indicated that in 2001 the mother took J to police and alleged J had been sexually assaulted by the father in these proceedings.  J was interviewed and denied sexual assault.  During the following years the mother reconciled with the father during which periods J lived with them. Further allegations of sexual assault by the father of J were made by the mother in February 2006.  The father denied he sexually abused J.

11. Dr R investigated these allegations in relation to which he reported: 

    [J] didn’t have any memory of any sexual abuse [which involved the father] although there was a letter written by her cousin stating that she had made statements about this.  However, I would have expected there to be a memory of the abuse by [J]. 

12. Dr R said, in effect, that the volume of sexual abuse allegations, perhaps also the degree of contamination, made it difficult to make sense of most of them.  He was particularly concerned about J’s disclosure to him of being raped by the mother’s then boyfriend (N).  Ultimately, without being able to determine the probabilities that the father had sexually abused J, Dr R concluded a constellation of factors made him an unacceptable risk to her. 

13. Prior to the commencement of the hearing, the father conceded that no orders should be made in his favour to have contact with J.  As a consequence, whether or not, based upon the sexual assault allegations, the father was an unacceptable risk to J was not the subject of the testing of the evidence.  On the material that was available to the Court, much of the evidence on this issue was contradictory and it would be difficult, as Dr R pointed out, to determine in relation to the father at least, the efficacy of the sexual assault allegations. Perhaps the matter which most troubled the Court about the approach adopted by the Independent Children’s Lawyer at trial was their contention that the Court should make a positive finding that the father sexually abused J.  This differed from the contention in their case outline document which had been that the Court would find the father presented an unacceptable risk to J.  When the issue was raised at the state of the hearing counsel for the Independent Children’s Lawyer indicated that a positive finding of abuse would be sought.  They were the only participants who considered the evidence was strong enough to support such a positive finding or that it was in the children’s interests for the Court to so conclude.  So that it is clear this is a different question to whether the father posed an unacceptable risk to J, about which, as already mentioned, there was no dispute.

14. The legal principles to be applied in a case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. The oft quoted passages are found at pp 76-77 where the High Court held:

    In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:

    The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

    His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.

    No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.  

    In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

    Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. (My emphasis).

15. By way of further elaboration of the civil standard of proof, the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane and Gaudron JJ said at pp 170-171

    The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

16. The Briginshaw test is now enshrined in s 140 of the Evidence Act 1995 (Cth). As the Full Court in Johnson and Page (2007) FLC 93-344 makes clear these principles apply to cases decided after its introduction.

1. Thus a Court will only make a positive finding that sexual or other abuse has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235. With respect to those who appeared for the children, on the evidence available to the Court, absent an admission from the father the positive finding contended for was not available. That this finding was pursued in the manner it was by those who represented the children’s interests suggested inexperience on their part in the role or a misconception of what the role required of them.

2. Dr R interviewed the children and observed them with the father.  In relation to the children’s views and the weight to be given to those views, Dr R said: 

   [W] and [M] were both clear that they wanted to spend time with their father.  They both appeared very fond and attached to him.  I believe that the children would first preference they reside with their mother and have regular contact with their father.  They would like to spend more time with their father than the two hours a fortnight.  However, the father would need to prove that he is capable of having regular attendance to contact.  [J’s] response was also interesting.  I believe that she supported a relationship continuing between the children and their father.  I don’t believe she saw [the father] as a threat to the boys.  She did want to see the boys continue a relationship with him.  I believe that she was not fearful and that she was reasonably comfortable in his presence.

3. In relation to the nature of the relationship between the boys and their father Dr R said:

   I formed the view that the two boys had a close relationship with [the father].  They appear to be very fond of him.  I formed the view that [the father] cared a great deal about the boys and wanted to be involved in their lives.  I believe that he also cares a great deal about [the mother] and would like to be involved in her life.  However, I have major concerns about [the father’s] parenting capacity.  He appears to have a very limited capacity to respond emotionally to the care and the needs of the children.  He doesn’t attend contact on a regular basis even when it had been restarted after a long period of absence.  He said that he has stopped using alcohol on a regular basis although this is yet to be proven.  He appeared to be very dependent on his step-father [D Shelley] for guidance and support.  I don’t believe he would intentionally harm any of the children although he doesn’t have particularly strong coping skills.  He doesn’t have a strong history of being able to establish relationships, employment, accommodation or work.  His work appeared to be mainly dependent on [D Shelley].  I do believe that he is important to the children and should have a role in their lives.  I don’t believe that he would intentionally harm the children when not under the influence of alcohol or drugs.  At best, I believe that the father would be able to offer day time contact with the boys once per week.  I don’t believe he would be able to cope with the children for extended periods.

4. In relation to the children’s psychiatric condition, Dr R wrote: 

   Both the boys have reported to have had emotional disturbance with oppositional defiant disorder, anxiety disorders, ADHD and learning disorder.  While these conditions and behaviours could well reflect their chaotic and unstable home life, their unstable home life would certainly contribute to making these problems and conditions much less easier to manage.  They presented as [sic] me as children who were craving stability.  It is of concern that the mother has moved school and changed locations.

5. Dr R concluded that the mother struggles with chronic depression or dysthymia.  In his opinion the major diagnosis is “a personality disorder with borderline personality disorder features.  She has a poor sense of identity, a propensity for self harm, drug and alcohol abuse, poor relationships and a poor sense of self.” 

6. In relation to the father, Dr R concluded that he also has a personality disorder “with dependent and borderline features.  He has had difficulty supporting himself, establishing relationships, poor sense of identity and has had major problems with drugs and alcohol.”

7. When Dr R observed the boys with their father the boys talked to him about what they like to do with him and happily discussed activities which the three had enjoyed in the past.  When the boys left, they cuddled their father. 

8. No challenge was made to the evidence given by Dr R on the matters cited above and it is accepted.

9. Against this background, it was not a surprise that the mother gave evidence that the children were devastated when the father failed to attend supervised contact visits.  In their disappointment, the children’s behaviour deteriorated and the mother’s fragile parenting capacity was, on each occasion, tested. 

10. All parties, but not the Independent Children’s Lawyer, submitted that it was in the children’s best interest for the boys to spend time with the father supervised by either Mrs Tamer or D Shelley.  For reasons which were never completely clear to the Court, the Independent Children’s Lawyer initially submitted that D Shelley would not be an appropriate supervisor. 

11. D Shelley has a good relationship with both parents.  Independently of the father, he has maintained contact with the mother and from time to time the boys stay with him, on occasion for days at a time.  Mr Shelley lives with his partner and children and presented as a demonstrably responsible person who was committed to the children.  Two or three times each week Mr Shelley sees the father.  Although he is the father’s step-father, he regards the father as his son.  Mr Shelley was clearly distressed by the father’s failure to fulfil his parental responsibilities to the children.  He is aware it is alleged the father sexually assaulted J in relation to which he has not formed any view other than to ensure J is not exposed to the father.  With the assistance of DoHS Mr Shelley provided a comprehensive undertaking to the Court[1] which addressed how he would fulfil his role as a supervisor.  Cross-examination by counsel for the Independent Children’s Lawyer left the Court in no doubt that Mr Shelley would ensure the children’s safety whilst they were with him and in a material way, he would contribute to the boys enjoyment of their time with their father.  During counsel for the Independent Children’s Lawyer closing address, Mr Shelley left the court room in tears.  Via counsel for DoHS the Court was informed Mr Shelley had reconsidered his willingness to supervise the father’s time with the boys and was no longer willing to do so.  At the Court’s behest Mr Shelley returned.  His distress was evident.  Ultimately Mr Shelley agreed that the Court could make orders which would enable him to supervise any time the boys spent with the father on the basis that he would decide when and if he would do so.

    [1] Exhibit ‘D’

12. Mrs Tamer had indicated her agreement to supervise at a time when she thought she would be one of two supervisors.  After Mr Shelley’s future involvement as a supervisor became less certain, through her counsel Mrs Tamer offered to supervise with such frequency as the Court considered appropriate.  She is able to arrange with the mother to ensure there is no possibility that J would be present or have contact with the father when he spent time with her brothers.  While J has lived with Mrs Tamer she has not had any contact with the father. 

13. The Independent Children’s Lawyer cross-examined Dr R. Indeed, it is noteworthy that the hearing was concluded with oral evidence being given only by Dr R and D Shelley.

14. Dr R reiterated his view that the whole issue of the boys’ contact with the father was difficult.  He restated his view that at the time of his report he considered that contact supervised by D Shelley would be possible and, I infer, in the boys’ best interest.  In his oral testimony, however, he expressed concern that visits one day a month may not be sustainable by the father.  For the boys, it would be very damaging for them to be constantly disappointed.  Reference to damage was to emotional damage.  Thus, Dr R opined that it would be reasonable for the Court to consider that the boys saw their father for what was described as “identification contact” a few times a year.  In answer to questions by counsel for DoHS Dr R said the main risk which the father presented was when he was under the influence of alcohol.  He speculated it was possible J could feel betrayed by her brothers and contact supervisors if anything more than identification contact at a contact centre occurred.  The term speculation is used because in their interview J made it plain to Dr R she supported her brothers having a continuing relationship with their father. 

15. Dr R expressed the opinion, in effect, that if arrangements were made for the children to spend time with the contact supervisors, which proceeded irrespective of whether the father was present, the emotionally damaging consequences of disappointment if he failed to attend would be moderated.  The point being supervised visits between the father and the boys would occur when the father joined in these pre-arranged visits but that the children’s hopes and expectations could be managed by the adults in a way which did not result in disappointment for the children.  This approach would implement an arrangement different to that recommended by the child & adolescent sexual assault counsellor who works with J and the mother.  In her report dated 18 August 2009 she recommended brief, supervised visits “perhaps once monthly” between the boys and the father.  In her report dated 16 February 2010 she recommended “no visitation” between the boys and their father because she considered this would have an adverse effect on all three children and [was] “a primary cause of [J] living out of home.”

16. Counsel for DoHS submitted that the Court would evaluate the opinions given by the counsellor as those of an advocate for the mother and J.  No criticism was made of the counsellor and it appeared to be accepted by all involved in the hearing that her work with the mother and J has been valuable and was an important contributing factor to J being able to remain living in the family.  The counsellor’s role is therapeutic and not investigative.  She has not met the father and is appropriately primarily focused upon J’s health.  J’s attitudes to the boys’ relationship with their father appears to be subject to change and, while she appears currently opposed to it, it was only a matter of months earlier that it had her support.  While J will be aware her brothers see their father from time to time all parties are able to ensure there would no possibility she would be at the same place as the father.  J’s counsellor made it clear that this would be most important.  The evidence was not sufficient to persuade the Court that J’s current opposition to the boys spending supervised time with the father was likely to endure. Or that establishing a regime of tightly controlled and supervised visits for the boys would somehow challenge her mental health.   

17. Ultimately, the Court is satisfied that it is in the boys’ best interest to have an opportunity for a carefully structured ongoing relationship with their father.  When those provisions of Pt VII of the Family Law Act 1975 concerned with relationships are balanced with those concerned with child protection, the proposals pressed by DoHS, the mother, the father and Mrs Tamer are assessed as providing the correct balance.

18. The Court’s observations about those who appeared for the children’s interests are intended to be constructive. To ensure there are no unintended consequences the names of Independent Children’s Lawyer and counsel who appeared will be suppressed.

19. For these reasons the Court is satisfied that the orders identified at the beginning of this judgment are in the best interests of the boys.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  23 February 2010