Shepherd and Billett

[2008] FamCA 1118

FAMILY COURT OF AUSTRALIA

SHEPHERD & BILLETT [2008] FamCA 1118

FAMILY LAW – CHILDREN – with whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Shepherd

RESPONDENT: Ms Billett

INTERVENOR: Ms T

INDEPENDENT CHILDREN’S LAWYER: Mr Grant

FILE NUMBER: BRF 9658 of 1997

DATE DELIVERED: 4 December 2008

PLACE DELIVERED: Brisbane

JUDGMENT OF: MURPHY J

HEARING DATE: 4 December 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: MR PORTER

SOLICITOR FOR THE RESPONDENT: MR REARDON

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: MR GRANT

Orders

IT IS ORDERED BY CONSENT THAT

1. The Orders made by Justice Barry on 29 September 2006 be varied as follows:

   a)Discharging order 2 with respect to the children L Shepherd born … June 1993 and N Shepherd born … November 1994;

   b)Discharging order 9 with respect to the child L born … June 1993;

   c)Discharging order 4 in its entirety.

IT IS ORDERED THAT

PUBLICATION ORDER

1. Upon oral application made by the Independent Children's Lawyer, permission is granted to publish or broadcast:

   a)     in any newspaper or periodical publication;

   b)     by electronic means including a website;

   a notice or report of these proceedings approved prior to publication by the Media Officer of the Family Court of Australia.

2. Any notice or report of the proceedings published or broadcast pursuant to these orders must be limited to:

   a)the full names and date of birth of the MOTHER, MS BILLETT born … 1965, and the FATHER, MR SHEPHERD born … 1958;

   b)the full name and date of birth of the child, N born … November 1994;

   e)a photograph or photographs of the child;

   f)that a Recovery Order was issued in August 2008 authorising all members of the Australian Federal Police and the State and Territory Police Forces and the Marshal of the Family Court of Australia to recover the child and the Recovery Order has not yet been executed;

   g)a full description of the child;

   h)that the current whereabouts of the child are unknown;

3. Any notice or report published or broadcast pursuant to these Orders must include a request that any information as to the whereabouts of the child should be given to the Australian Federal Police on telephone number 1800 333 000.

4. The Registry Manager must urgently provide a copy of these Orders to the Marshal for distribution to the Australian Federal Police and the State and Territory Police Forces.

5. In the event that the child is recovered after publication or broadcast of a notice or report approved under these Orders, then subject to any order to the contrary, permission is granted to any newspaper, publication, radio station, television channel, or website that published or broadcast the notice or report to publish or broadcast:
   a)          a report of the recovery that is limited to that fact;
   b)          the role, if any, it played in the recovery; and
   c)          the matters listed in order number 3;
   provided such notice or report is approved by the Media Officer of the Family Court of Australia prior to its release.

FURTHER RECOVERY ORDER

1. Paragraph 4 of the Recovery Order made on 21 August 2008 be varied by deleting same and substituting the following paragraph:

   Upon recovery, the child [N] born […] November 1994 is to be delivered to an address to be advised or to such other address as agreed to between the person executing the Recovery Order and the Applicant, but only after such person notifies an authorised officer of the Department of Child Safety and receives advice therefrom in respect of such delivery and time that such delivery is to be made.

2. A fresh recovery order issue, giving effect to that order, and otherwise incorporating the terms of the order made on 21 August 2008, including that the fresh recovery order remain in force for a period of twelve months.

INJUNCTIONS

1. Each of the parties provide to the Independent Children's Lawyer, as soon as reasonably possible and as a matter of urgency, any and all information which either of the parties has currently, or any information which comes into their respective possession at any time, as to the whereabouts of N, or any information that might lead to, or provide information in respect of the whereabouts of N.

2. Each of the parties shall immediately provide to the Independent Children's Lawyer the names of any persons whom they consider, might have information that might assist in ascertaining the current whereabouts of N.

PARENTAL RESPONSIBILITY

1. UPON NOTING THAT the presumption of equal shared parental responsibility is rebutted by reason of the best interests of N and that no order is otherwise made allocating parental responsibility it is ordered that, notwithstanding the provisions of s 61C of the Family Law Act, each of the parties be restrained from:

   a)determining, otherwise than by written agreement between them or otherwise ordered where N shall live; and

   b)providing education or schooling for N otherwise than by the full-time physical attendance of the child at a state or private school.

COSTS

1. The applications for costs by both the Independent Children's Lawyer and the Father, of today, are dismissed.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, 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.

IT IS NOTED THAT:

(a)The Court considers that it is in the best interests of the children N born … November 1994 and O born … June 1996 that they spend such time together as might be arranged in such a manner that ensures their safety and security, but from which their parents are excluded.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF9658 of 1997

MR SHEPHERD

Applicant

And

MS BILLETT

Respondent

REASONS FOR JUDGMENT

1. This is a matter which has a long, tragic, appalling history.  The matter has been before me on a number of occasions, most recently in August 2008.  On that date I made, among other orders, a recovery order in respect of the child, N.  She is allegedly missing. 

2. I use the word "allegedly" because there is a strong suspicion on the part of the father, the independent children's lawyer, and indeed, this Court (based on the significant history, much of which was aired in a trial before Barry J) that took place over two years ago that N is, in fact, not truly missing at all. In short there is a history of N going missing; there is a history of people associated with the mother being involved in activities that resulted in that circumstance.

3. In particular, there is, for example, evidence in earlier proceedings of N being returned to a shopping centre after a period of being allegedly missing in circumstances where the evidence reveals that she was told to not enter the shopping centre because there would be closed circuit TV footage that would be able to capture that return if it was done within its confines.

4. The Department of Child Safety has had a significant involvement with the family.  Ms T, who is a social worker attached to the department, appears today as a friend of the Court.  The Court records its gratitude to the State department for doing so.

5. There are concurrent proceedings in respect of other children and, indeed, concurrent investigations with respect to these children that are being undertaken by the department at the current time.  This Court has no jurisdiction in respect of the three youngest children of the mother (to Mr Billett) by reason of orders made in a State Court pursuant to applications brought by that department.

6. The matters just outlined will give some indication of the length, depth and breadth of the issues confronting the Court in the current proceedings. 

7. I do not propose, in these short reasons, provided emanating from what are, in effect, lengthier interim proceedings dealing with the issue of the uncertainty of N’s current whereabouts, to traverse all of the relevant issues.

8. A number of important considerations, nevertheless, arise and it will be clear from the comments made by me from the Bench during the proceedings before me in August 2008 and the comments made by me from the Bench in the proceedings conducted today, including the interchanges that occurred between the Bench and the representatives of each of the parties, Ms T and the ICL, Mr Grant, what some of those issues are and my views in respect of those issues.

9. With that in mind, and bearing in mind that these are an edited series of what was transcribed, which such transcription includes the interchange to which I have just referred, I will order that a transcript of the proceedings before me on 21 August 2008 and a transcript of the proceedings before me today, including those interchanges, be prepared, and a copy provided to each of the parties including the independent children's lawyer.  I give leave to the independent children's lawyer to provide a copy of that transcript to the Department of Child Safety through Ms T.

10. Orders were made by Barry J after a trial in the appalling circumstances there discussed by his Honour.  It is agreed by all parties, including the independent children's lawyer, that some of those orders be varied by consent.

11. The consent orders arrived at between the parties, reflect the reality of the current situation, the parameters of which I have outlined in very broad terms a little earlier, and also the consideration that N has now again been allegedly missing for some considerable period of time.

12. I indicated earlier that the father, the independent children's lawyer, and, indeed, the Court, have a strong suspicion that the mother, or persons connected or associated with the mother, are involved in N’s alleged disappearance and are involved in her allegedly being missing.  Having said that, I made it clear during discussions with the representatives of each of the parties, and I make it clear in these reasons, that I do not have a sufficient evidentiary foundation upon which I could make any such finding in respect of the mother.

13. I have before me some evidence to suggest that current investigations conducted by the Australian Federal Police, pursuant to the recovery order made by me on 21 August 2008, have not produced any information whatsoever that has been of assistance in finding and recovering N in accordance with my order. 

14. Ms T informs the Court that, after what has been a lengthy involvement by the department, and consequent lengthy investigations by it, the department's position in respect of the children currently in the care of the father, is that: “The parenting of the father is not so deficient so as to require the intervention of the department with respect to [N] and [O]”.

15. The department's position with respect to the mother however, is significantly more circumspect. 

16. There is good evidence before me and, indeed, the father effectively concedes that, for whatever reason, and by reason of whatever confluence of factors, N is currently unwilling to spend time in his household. 

17. A number of allegations have been made by him in earlier proceedings that might provide some foundation for why that is so.  Findings in respect of that issue are well beyond the ambit of the current proceedings.  Nevertheless that concession, and that reality, is a stark fact that underpins all decisions that will be made by me today and the orders made consequently.

18. Ms T indicates that the department retains very significant concerns with respect to the mother and her parenting, and retains very significant concerns in respect of N remaining in the mother's care, if that is what should transpire. 

19. As I indicated earlier, there are current child protection proceedings and orders in respect of three young children of the mother and Mr Billett.  As part of those proceedings, I respectfully requested the Children's Court to give consideration to providing, as it were, permission for this Court to receive reports containing expert evidence tendered in those proceedings.

20. I am grateful that the Children's Court has seen fit to comply with that request, and an affidavit filed by Mr Grant on 9 October 2008 annexes three reports: one from Ms M, who is a social worker who has prepared what is, in effect, a comprehensive family report; Dr W, who is a psychologist and Dr V, who is a consultant psychiatrist.

21. There are issues in respect of the participation in interviews conducted by Dr V, in respect of the mother and her current partner, Mr Billett.  Mr Grant, who acts as the independent children's lawyer in both proceedings obtained yesterday, I am told, a report from Dr G, who is also a consultant psychiatrist.

22. Against that background, and because of that background, the parties today, by consent, seek a number of orders which vary the orders made by Barry J consequent upon the trial conducted by his Honour some two years ago. 

23. It is agreed, and I order by consent, that the orders of Barry J made on 29 September 2006 be varied by discharging Order 2 insofar as it relates to the children: L Shepherd, born in June 1993; and N Shepherd, born in November 1994. 

24. Secondly, it is agreed and I order by consent that Order 9, which relates to sole parental responsibility, be discharged insofar as it applies to the child, L. 

25. In addition, again by consent, I discharged in its entirety Order 4 of those orders.

26. A number of issues remain live in the current, somewhat bizarre, circumstances, not only in respect of N, but also in respect of O. 

27. The orders made by Barry J provide that the father have sole parental responsibility for making decisions about the children's short and long term care, welfare and development.  The mother, who does not herself appear today because, her solicitor tells the Court, she has sick children and is unable to attend, seeks an order that that order be discharged in its entirety. 

28. There is no evidence before me which would come close to convincing me that, in respect of O, there has been any change of circumstances whatsoever, let alone any sufficient to vary an order with respect to an important matter such as parental responsibility. 

29. During the course of discussions with counsel, as the transcript will reveal, I raised the issues of equal shared parental responsibility and parental responsibility, as those concepts are dealt with by the Act. 

30. Insofar as O is concerned, those discussions are moot because, after a lengthy trial before his Honour, Barry J made the order that he did with respect to sole parental responsibility and I can see no evidentiary foundation for changing that order. 

31. Accordingly, I reject the submissions made on behalf of the mother that that order ought be discharged in respect of O.

32. The position with respect to N is completely different.  She is a child who, for whatever reason and by reason of whatever confluence of factors, has decided that she will absent herself from her father's care.  She is, as I have indicated, currently allegedly missing.  I repeat the suspicions earlier outlined in respect to her being missing. 

33. It is plainly the case, and indeed it is, with respect, properly recognised on the father's behalf, that an order conferring upon him sole parental responsibility with respect to N is, in effect, nonsensical and, in any event, unworkable. 

34. That being so, it seems to me that there is a sufficient change of circumstances occasioned by reason, if nothing else, of N’s current alleged unknown whereabouts, justifying the order made by Barry J being altered.  It seems to me that the order in its current form in respect of N ought be discharged.

35. The issue then arises as to what order, if any, ought be put in place in its stead. 

36. Consequent upon the discharge of that order there would be no order in respect of parental responsibility. 

37. The Act recognises the common law position in s 61C. The Act also requires, given that I am here making parenting orders of one type or another, that I apply a presumption that it is in the best interests of N that her parents have equal shared parental responsibility.

38. The Act equally makes it clear, see for example s 65DAC, that sharing parental responsibility, whether equal or not, is a joint activity and further makes it clear that it is not a passive activity.  The Act mandatorily requires people who share parental responsibility to consult, confer, and attempt to reach agreement with respect to decisions about “long term issues” as that expression is defined in the Act. 

39. It is submitted, and on the evidence there is not the slightest shadow of a doubt, that the parents in this case who would otherwise, by reason of operation of law and in particular s 61C, each have parental responsibility, have absolutely no capacity whatsoever to engage in any form of discussion, let along meaningful discussion, and have no capacity whatsoever to reach any form of agreement or at attempt to reach any form of agreement in respect of any issues, let alone major long term issues.

40. Accordingly, it is submitted, and I have no hesitation in finding, that it is in the best interests of N that the presumption of equal shared parental responsibility ought be rebutted. 

41. The next question is, what order, if any ought be made in respect of parental responsibility?  It is not contended seriously, as I understand it, that the mother ought have an order made in her favour for sole parental responsibility. 

42. The father, quite properly as it seems to me with respect, concedes by suggesting that the current order be discharged, that he ought not have an order in respect of sole parental responsibility.  I have found that the parties have no capacity to confer or agree.  If I make no order, each of the parties, alone and together, have parental responsibility in respect of N. 

43. A further complicating factor is that if N is found, the department will, at the very least, undertake significant investigation in respect of her placement and, in particular, whether orders ought be made under State legislation in respect of her. 

44. Ms T has referred the Court to the contents of a child protection report prepared by the department.  As a result of that report, which I have today directed be filed and served on each of the parties, the department as currently advised, would intend taking action, pursuant to State legislation, with respect to N’s care.  As a result, any order I make in respect of parental responsibility, is highly likely to be moot.

45. Nevertheless, it seems to me that there is, as yet, no application made by the department (because, of course N cannot be located). 

46. It would be an improper abdication of my responsibilities, then, if I was not to determine, in these interim proceedings, that issue, which is live before me.

47. It seems to me, balancing all of the considerations to which I have just referred, that, in reality, no specific order made by the Court commends itself as being in N’s best interests. 

48. I am not prepared, save in two specific respects, to which I will make reference in a moment, to allocate to either of the parents sole parental responsibility.  There is no other person in these proceedings, save for the department (which acts independently) who presents as a person to whom parental responsibility could be allocated. 

49. In those circumstances, and particularly bearing in mind the attitude of the department, which I have before me, I do not propose to make any order in respect of parental responsibility. In that case, obviously enough, the provisions of s 61C will apply in circumstances where, as I hope I have made clear, I have made a clear finding that in the best interests of N the presumption of equal shared parental responsibility is rebutted.

1. The two specific matters to which I referred a moment ago are: N’s education; and the capacity for a person who has parental responsibility to determine where a child should live as part of exercising that parental responsibility. 

2. In respect of the latter, I make it clear that neither party should, as an incident of having parental responsibility with respect to N, have the right to determine where and with whom N should live, without further order of the Court. 

3. Accordingly, parental responsibility, although not allocated to another person, is abrogated insofar as parental responsibility includes a right of a parent to determine where a child should live.  The order I will make is that neither party have a right to determine where N should live as part of having parental responsibility of her, without further order of this Court.

4. The second matter relates to evidence again present in the trial before Barry J, in respect of N’s education.  Again, I do not propose to traverse that evidence in any detail.  In essence, there was evidence that N was home‑schooled and otherwise removed from the mainstream education system. 

5. As I have indicated, N has allegedly been missing on a number of occasions, including since those orders were made.  There is evidence before me, as an annexure to the affidavit of the father, that, when in mainstream eduction during the time that she lived with him, N was progressing quite well.  Of course, circumstances have changed significantly since that time.

6. Nevertheless, given all that H has had to go through, I have no doubt that it is not in her interests for her to be home-schooled or otherwise removed from the mainstream education system. 

7. I accordingly propose to issue an injunction restraining either of the parties from providing education or schooling for N otherwise than as part of the mainstream education system at either a State school or private school recognised as a proper educational institution by the State of Queensland.

8. Three children of the mother and her current partner are the subject of State orders.  There is an ongoing investigation with respect to these children by the department.  The department has indicated action of the type I have earlier indicated.

9. In those circumstances, I posed the rhetorical question to Mr Grant and also to each of the representatives of the parties, whether, in effect, the work of this Court is spent?  This Court, although mandatorily charged with responsibilities with respect to children in parenting proceedings, is charged with those responsibilities in the context of the determination of parenting disputes that ultimately, in the absence of agreement, lead to parenting orders.

10. The processes of this Court, unashamedly, direct themselves to parties attempting, at every stage of the proceedings, to resolve their own parenting disputes, such resolution overwhelmingly being in children's best interests.   In circumstances where parents, and others, are unable to do so, the Court is charged with the responsibility of imposing upon parents, orders which they must comply with which the Court considers are in the best interests of those particular children. 

11. However, in circumstances where the parenting relationship is utterly dysfunctional; where the situation has, for whatever reason, reached the stage where a 14 year old child, whether encouraged, coerced or otherwise, has gone "missing"  on a number of occasions; and where the department indicates to the Court that they have significant ongoing concerns in respect of the children, an issue is squarely raised as to whether the Court—essentially a place where inter-party disputes are resolved—is at the end of the functions which it can properly exercise by reference to the legislation which governs those functions. 

12. Whether or not there is merit in what I have just said, Ms T points out the fact—correctly, with respect, as it seems to me—that one of the powers available to this Court is not a power which is available to her department.  In particular, Ms T refers to the fact that the legislation governing her department provides for wide powers with respect to, for example, entry and search of premises.  But, there is no provision under State legislation akin to the powers that this Court has with respect to orders such as Commonwealth information orders or publication orders.

13. She says—again, with respect, correctly as it seems to me—that this is a hiatus, because the department is in the position of wishing, probably, to exercise powers with respect to a 14 year old child, but is, at the moment, utterly unable to exercise those powers because the whereabouts of that child are allegedly unknown. 

14. She says that there is at the department's disposal, realistically, no power to change that situation. 

15. The ICL applies for a publication order.  It is said that the publication order is likely, insofar as any order might, to reveal the whereabouts of the child so as to allow the department to exercise its statutory responsibilities and duties.

16. Mr Porter submits—again correctly, with respect, as it seems to me—that a Commonwealth information order is likely to be of very little affect.  The person the subject of the order is a minor.  She has gone missing before.  It is highly likely that those who may know of her whereabouts will not reveal their whereabouts in circumstances where it might reveal the whereabouts of the child.

17. A publication order fits into a different category, it seems to me.  Because, by its nature, it is directed to the public at large there is, in my view, the added significant prospect that information might be provided, for example to the Australian Federal Police, that might allow the recovery order to become effective.  Furthermore, the wide circulation of such an order permits members of the general public to, as it were, keep their eye out for this child. 

18. I consider the ascertaining of the whereabouts of this child to be extremely important to her welfare.  I am comforted by the fact that the Department of Child Safety also considers that ascertaining the whereabouts of this child to be extremely important.

19. There is a potential downside.  It is said that a concern the Court should have is that the issue of a publication order might, as it were, force N and any persons associated with her current care and whereabouts to, as it were, go further underground.  I accept that this is a concern. 

20. I also accept that, in making such an order, the court should consider N’s best interests.  I am very concerned that any 14 year old girl is not likely to want her picture and details, and details of the fact that there is a dispute about her, to be before the public at large.  I suspect strongly that such a prospect would be unattractive to her, as it would, I suspect, be unattractive to almost any teenager in her place.

21. I accept that there is a valid concern that a publication order might, as it were, force further steps to be taken by N and/or any persons associated with her current care and whereabouts, to take greater steps than might otherwise be taken in order to secret her whereabouts. 

22. However, as Mr Grant points out, she is currently “underground”.  There has been an order in place now for about three months made by the court which, at least in theory, invokes the resources of the Australian Federal Police and the Queensland State Police.  That order, I am told—and it is not disputed—has been unsuccessful in not only ascertaining N’s whereabouts but, as it seems to me, in obtaining any information about her whereabouts.

23. It is necessary for me to balance those competing considerations in N’s best interests and I do so. 

24. I am of the view that, in this particular case, particularly given its history to which I have partly referred to earlier, that N’s best interests and indeed other considerations relevant, point to the making of a publication order. I so order in the usual form.

25. I have not, in previous proceedings, made an order to the effect that each of the parties reveal all such information as they have and require of others any information as to N’s whereabouts. 

26. It might be said that any such order has limited utility in terms of its enforceability.  I think there is some merit in that argument.  However, an equally important consideration arises. 

27. A State department statutorily charged with responsibility for children, has serious concerns about the parenting of the mother and, of course, serious concerns about a 14 year old child who is said to be missing. It need hardly be said that, if there was evidence to suggest that a party who had prior knowledge of the importance of those issues and prior knowledge of the repugnance with which this Court treats those who flout Court orders in respect of children, that person should be in no doubt that they have a clear obligation to make this Court aware of the whereabouts of a child who is the subject of its jurisdiction.

28. I seek to make that abundantly clear that repugnance and seriousness to each of the parties.

29. Accordingly, I propose to order that each of the parties provide to the ICL as a matter of urgency any and all information which either of the parties have currently, or any information which comes into their possession at any time, as to the whereabouts of N, or any information that might lead to, or provide information in respect of, the possible whereabouts of N. 

30. I will order further that each of the parties shall immediately provide to the independent children's lawyer the names of any persons whom they consider might have information that might assist in ascertaining the current whereabouts of N.

31. I make it clear that there is no evidence before me that suggest that the father has any such information or knows of any such persons.  In the current circumstances the evidence seems to me clear that if that information was available to the father, or might be, he would provide it, at least to his solicitors, and I have no doubt that his solicitors would provide that information to the ICL. 

32. However by its terms the order contemplates that information (perhaps, different) might come into the possession of either of the parties at some future time.  I want to make it clear to both parties that they are equally bound by the obligation just referred to.

33. The remaining issue arises in light of the orders previously indicated which vary the orders of Barry J. An application by the father contained at par 5 of his application in a case filed on 20 November 2008 seeks specified face to face time and communication with N. 

34. That application is made notwithstanding that N has expressed a firm desire to have little, if anything, to do with the father. It is submitted, however, that in light of remaining orders O continue to live with the father. It is important that O, who is now 12, should spend time with his sister, who is 14. 

35. Each of the children are at an important stage in their lives.  One might think it almost axiomatic that, in the shocking conflict to which these children have been exposed over a lengthy period of time, the maintenance of the sibling relationship which is, in any event, important, is particularly important here. 

36. I have little doubt that it is in the best interests of each of O and N that they spend time with each other and develop their relationship, particularly, as they each go through their teenage years and become young adults

37. There is, though, a profound difficulty as it seems to me.  The order in its current terms is certainly accepted by the ICL (and, in effect, I think, in reality accepted by the father) to be unworkable in the sense that N is almost certainly likely to express a view that she will not have anything to do with her father. 

38. I again reiterate that the reasons for that are complex, have been the subject of significant evidence, but for current purposes are essentially irrelevant.

39. I would, if I could, frame orders that would have N and O seeing each other.  With that in mind, I toyed with the idea of an order which compelled the parties to do all things as were necessary so as to affect O and N spending such time together as might be arranged, but such that the parties were excluded from it and in such manner as was consistent with the safety and security of two children aged 14 and 12. 

40. What I had in mind, for example, was that a 14 and a 12 year old could readily spend time together doing various things, going to a movie, spending time together at a park, or whatever it might be, without their parents being present so that they could enjoy a relationship with each other unimpinged, as it were, by any intrusion of the conflict between their parents and any need to engage in a relationship with each parent during that time.

41. Whilst it seems to me perfectly proper and appropriate, in effect, as an order there are many disqualifying features.  First, any order as framed is highly likely to be uncertain; second, it would, in any event, be certainly extraordinarily difficulty to enforce; thirdly it raises the prospect of one party or the other bringing contravention proceedings in respect of it which, of course, needless to say, would defeat the very purpose of it.

42. I should add that that last consideration is a matter uppermost in my mind with respect to the specific orders sought by the father.  I think it extremely unlikely, as does the ICL, that there would be anything like compliance with such an order. 

43. It is, as Mr Porter submits for the father, right to say that at least the order is in place so that time can be effective if circumstances were to permit of it occurring. But, as a matter of practical reality, there would be an existing order capable of enforcement by a party in a situation where those parties have been in extreme conflict for a very lengthy period of time.  That, too, raises the prospect of contravention applications which, as it seems to me, would be a horrific prospect not only for this Court but for both the parties and the children.  More litigation is the very last thing that is needed in this case.

44. One of the matters exercising my mind in considering making such an order was that it was important to flag to the children as they grew into adults, but also to each of the parties (and indeed to the world at large as it were), that the Court was cognisant of the fact that it is likely to be in the best interests of each of these two young children to see each other. 

45. On balance, I think that consideration is not strong enough to overcome what I regard as being the significant deficiencies in an order along the lines of that which I mooted during argument. 

46. Again, on balance, it seems to me that the best interests of the children favour a rejection of the order sought by the father in the terms contained in the application.

47. I propose to meet the consideration just raised by me by including in the order a notation to the effect that the Court considers it in the best interests of each of N and O to spend such time together as might be arranged, and in such manner that ensures their safety and security, but in respect of which the parties are excluded.  I am aware that the notation is not enforceable as an order.  That is intended. 

48. However, it meets, I think, the consideration last mentioned by me: that is, it flags to the children as they become adults, to each of the parties, and as it were the world at large, that that matter has been considered by the Court and the notation is made as an indication of what the Court considers to be in the best interests of those two young children even if their situation does not adient of enforceable orders being made to give effect to that.

49. The orders I intend to make will be evident from the reasons which I have just delivered.  I will formulate the orders at the same time as delivering edited the ex tempore reasons for judgment just delivered.

50. For the reasons outlined in argument and evident from the transcripts ordered by me, I will make orders saying the terms of the recovery order earlier made and order that application for costs by both the father and ICL be dismissed.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  22 December 2008