Simmonds and Ablett

[2018] FamCA 316

FAMILY COURT OF AUSTRALIA

SIMMONDS & ABLETT [2018] FamCA 316

FAMILY LAW – CHILDREN – Interim Orders – Where mother seeks children to live with her and spend only supervised time with the father – Where father seeks children live with him and spend limited time with mother at a public place – Where both parties allege the other is an unacceptable risk to the children – Where father alleges the mother’s stepfather sexually abused the children and mother has physically harmed the children – Where father has alienated the children from the mother – Where the father has coached the children to make false statements and allegations adverse to the mother and maternal family – Where mother does not pose any material risk of harm to the children –Where father intends on denying the children a relationship with the mother – Where father’s alienation of the mother, his history of drug use and undesirable living conditions poses an unacceptable risk of harm to the children – Where children to move into the mother’s primary care – Orders for a 2 month moratorium period of the father spending time with the children, then moving to supervised contact – Where father has liberty to apply to increase or change conditions of time with the children after 12 months – Where father encouraged to seek psychological assistance to develop insight into the needs and best interests of the children.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Re Andrew (1996) FLC 92-692
L v T[1999] FamCA 1699; (1999) FLC 92-875; 25 Fam LR 590

APPLICANT: Ms Simmonds

RESPONDENT: Mr Ablett

INDEPENDENT CHILDREN’S LAWYER: Mr Grainger

FILE NUMBER: BRC 5257 of 2016

DATE DELIVERED: 10 May 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 5 and 6 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Byrne

SOLICITORS FOR THE APPLICANT: Macdonald Law

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Christie

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. That all previous parenting orders and parenting plans be discharged.

Parental Responsibility

1. That the Mother have sole parental responsibility for all major long-term decisions for C born … 2010 and D born … 2013 (“the children”) subject to:

   (a)The Mother giving the Father 28 days written notice before she makes the decision; and

   (b)The Father having 7 days to put in writing his views or alternate proposal;

   (c)With the Mother to consider the Father’s views but if no agreement can be reached, then the Mother has the authority to make the final decision.

Time with Parents

1. That the children live with the Mother.

2. That from 10 July 2018 the children shall spend time with the Father as agreed between the parties and failing agreement as follows:

   (a)Supervised at the B Town Children’s Contact Centre each Sunday if it can be facilitated by the B Town Children’s Contact Centre or otherwise, each fortnight, for two (2) hours;

   (b)In relation to such time, the parents will enrol with the B Town Children’s Contact Centre within 7 days of the date of these Orders;

   (c)Each parent is to be equally responsible for the costs associated with attending at the B Town Children’s Contact Centre; and

   (d)If either parent is unable to facilitate time, they will provide the other with no less than 24 hours’ notice.

3. If the Father fails to attend the B Town Children’s Contact Centre for scheduled contact on three (3) consecutive occasions, Order 4 is forthwith suspended.

4. If the Father has not arrived at the B Town Children’s Contact Centre by 20 minutes past the scheduled commencement of time, the Mother is permitted to leave the B Town Children’s Contact Centre with the children.

5. That the Father is restrained from attending any school at which the children may be attending.

Exchange of Information

1. That the Mother shall inform the Father via text message as soon as reasonably practicable of any significant health issue or major illness suffered by the children.

2. That the Mother and Father shall keep each other informed at all times of their mobile telephone number and advise each other of the change in writing;

3. Unless otherwise agreed in writing, the parents will communicate by text message only, save for in the event of emergencies, and such communications be restricted pertaining only to the children.

Non-denigration

1. That the parties encourage and not undermine each child’s relationship with the other party, and actively encourage the children to spend time with both parents.

2. That during the time the children are with either parent that parent shall:

   (a)Respect the privacy of the other parent and not question the children about the personal life of the other parent, nor allow another person to question the children about the personal life of the other parent;

   (b)Speak of the other parent respectfully, nor allow the children to remain in the presence of another person who is speaking of the other parent disrespectfully;

   (c)Not denigrate or insult the other parent or their family in the presence or hearing of the children, nor allow the children to remain in the presence of another person who is denigrating the other parent or their family

   (d)Not post on social media about the other parent, their family, or these proceedings, and will use their best endeavours to cause the removal of any social media posts about the other parent or their family that are made by that parent’s friends, family or associates;

   (e)Not speak of these proceedings with the children, nor discuss adult issues in the hearing or presence of the children.

Transition of Children to Mother’s care

1. That as soon as is reasonably practicable, the Independent Children’s Lawyer shall speak with the children and explain these Orders to them.

2. That the Independent Children’s Lawyer or his agent will, as soon as is reasonably practicable, and no later than 7 days from the date of these orders, attend and facilitate changeover of the children from the Father’s household, to the Mother’s household, at a location and time convenient to the Independent Children’s Lawyer.

3. In the event that the Father fails to facilitate changeover per the arrangements made by the Independent Children’s Lawyer pursuant to Order 14 above, then a Recovery Order issue directly to the Marshall of the Family Court of Australia and to all agents of the Australian Federal Police Service and to all officers of the Police Services of all States and Territories of Australia requiring them to find and recover the children namely C born … 2010 and D born … 2013 (“the children”) and return and deliver them to the Mother being that person who an Order for the children and for that purpose to stop and search any vehicle, aircraft, and to enter or search any premises or place which there is at any time reasonable cause to believe that the said children may be found.

Other Matters

1. That on or before 1 June 2019, the Father has liberty to apply, to change the frequency and duration of his time with the children under these orders, and/or the circumstances in which his time with the children is experienced, including the lifting of the requirement that his time be supervised.

2. That the Mother be restrained from relocating the children to an area that exceeds a two-hour (2) drive from B Town, Queensland.

3. That each of the parties are restrained from using physical discipline on the children.

4. That both parties be restrained from discussing these proceedings in the presence or hearing of the children, and both parties are to use their best endeavours to ensure that others do not discuss these proceedings in the hearing or presence of the children.

5. That neither parent will consume nor be under the influence of alcohol above the legal driving limit or consume illicit drugs whilst the children are in their immediate care, nor expose the children to another person under the influence of alcohol above the legal driving limit or illicit drugs.

6. That the Applicant’s Undertakings filed 16 August 2016 and 6 October 2017 be forthwith excused and the Applicant be no longer required to comply with them.

7. That the Independent Children’s lawyer be discharged as of 1 December 2019, if the Father has not brought an Application pursuant to Order 16.

8. That the Father has leave to publish these orders, the reasons for judgment and all Family Reports of Mr E prepared in these proceedings, to any treating practitioner or therapist engaged by him from time to time.

9. Otherwise all extant applications be dismissed that the matter is removed from the list of active pending cases.

NOTATION:

A.For the avoidance of doubt, these orders do not permit the Father to spend any time with the children for their changeover into the Mother’s care under Order 14 until supervised time commences pursuant to Order 4.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simmonds & Ablett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC5257/2016

Ms Simmonds

Applicant

And

Mr Ablett

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings involve the parties’ two children, being C (born in 2010, and hence presently 7 years of age) and D (born in 2013, and hence presently 5 years of age) (“the children”).  For her part, Ms Simmonds (“the mother”) seeks orders that she have sole parental responsibility for the children, who would live with her, and spend time with Mr Ablett (“the father”) either as agreed, or in default of agreement, supervised at the B Town Children’s Contact Centre.  She justified those orders on the basis that the father presents risks of harm to the children, principally arising from his alleged alienation of the children from her, which can only be adequately mitigated by strict supervision.

2. For his part, until receipt of his proposed written orders after the trial had concluded, the father had sought that he have sole parental responsibility for the children, who would live with him, spend no time with the mother, and only have telephone communication with her on birthdays, Christmas and Easter.  He justified those orders on the basis that the mother and her family present such a risk of harm to the children, that even strict supervision of the mother’s time with them could not adequately mitigate.

3. However in his written proposed orders, the father eased his position to allow the mother limited time with the children at a public place. The reason for the change in his proposal was unexplained.

4. The Independent Children's Lawyer largely supported the position of the mother, save that he contemplated that the father should have liberty to apply to revisit the matter of his time with the children within a specified timeframe.

BACKGROUND FACTS

The father

1. The father was born in 1974, and hence he is presently 43 years of age.  It appears as though immediately after leaving school, he commenced an apprenticeship, but that career became untenable, and he thereafter worked for a company for a number of years.

2. Both of his parents are deceased, however his step-father remains living in F Town.

3. At some stage he moved to the G Town where, in early 2006 at age 31, he met the mother and commenced a relationship with her.

The mother

1. The mother was born in 1983, and hence is presently 34 years of age.  Her father died when she was six years of age.  Otherwise she told Mr E, a psychologist who prepared the Family Reports in this matter, that her mother was remarried to Mr H, and her family was otherwise “typical.”  She has two sisters, one brother and a half-brother.  At some stage her family moved to the G Town district, and it was there, aged 22, that she met the father and formed a relationship with him.

The relationship

1. The mother says that from the outset, the relationship was one in which the father sought to, and did, control her to a large degree.  She says that the parties lived some little distance out of G Town, on rural properties, which meant she was isolated, and further, that the father was highly controlling of all of the monies in their relationship.  The mother asserts, and is not contradicted by the father, that when her driver’s licence expired, he did not permit funds to be made available for it to be renewed, causing her isolation to increase.  It is also said by the mother that the father had an “old-world” attitude, that the role of women was to undertake domestic tasks and raise children, and insisted upon that pattern in their relationship. 

2. It seems common ground that during the course of the relationship the parties mutually engaged in some drug use, involving marijuana and amphetamines.  The father says that he did not take amphetamines after the birth of the children, a matter which I will need to further consider in due course.

3. As I have indicated, C was born in 2010, and then D in 2013.  By the time of the children’s births, the parties were living at the address where the father still resides.  That is an acreage property some 18km out of G Town, with a rudimentary house, said to be essentially a shed on a rough concrete slab with partitions to make three rooms.  The property does not have a connection to mains electricity, but rather operates on gas, and when required, a generator.  It is dependent on tanks to collect rain water.

4. In August 2015 the mother was diagnosed with breast cancer and underwent a mastectomy of her left breast in that month.  There then followed chemotherapy from September 2015 until January 2016.  However while the mother was on chemotherapy, in late October 2015, the parties finally separated.  They are in disagreement as to the circumstances of separation.  The mother says there was an argument at the conclusion of which the father took the children, left the house and ordered her to be gone from the home by the time he got back.  For his part the father says that the mother “moved to her mother’s house and left the children alone in the family home as she didn’t want to take the children from the home they have only known.”

Post-separation

1. Immediately post-separation, the mother went to live at her mother and step-father’s home in the township of G, and the father remained living at the parties’ former home.  The mother says that thereafter the father has been very controlling of her time with the children; the father says, in effect, that the mother was more interested in other things than parenting the children, in light of her cancer diagnosis and treatment. However the mother’s affidavit filed 12 February 2018 from paragraph 41 onwards is replete with extensive detail of her attempts to spend time, or communicate, with the children post-separation, which detail was not contradicted by the father, nor was she cross-examined by reference to it by him.  Moreover, during this time the mother was still undergoing chemotherapy, and underwent radiation therapy in February and March 2016 as well.

2. I am well satisfied that, as the mother alleges, post separation the father was resistant to the children spending time or communicating with her, and sparing in permitting them to do so.

3. On 16 February 2016, the parties were able to agree a parenting plan, which provided for equal shared parental responsibility for the children.  The living arrangements for the children depended upon whether the mother was able to obtain her own accommodation at G Town or not.  In the event that she was not, then the children were to primarily live with the father, but spend from 10:00am every Saturday until 4:00pm every Sunday with the mother.  If the mother was able to obtain her own accommodation, then the children were to primarily live with her, but spend time with the father from after school on Friday until before school on Monday on the first, second and third weekend of each month.

4. On 10 March 2016, the mother advised the father that she had been able to obtain accommodation in G Town, and hence that under the parenting plan, the children would be coming to live with her soon.  It appears as though the father had not expected the mother to obtain accommodation so quickly, and the mother says that he ignored her communication about the issue for some days.  Then on 14 March 2016 he requested a copy of the mother’s lease agreement, which the mother was happy to provide to his solicitors, however he did not provide their details.  The mother says, and it is not in dispute, that the father thereafter said that he was unhappy with the parenting plan and wanted it changed.  That was only a month after it had been agreed.

5. On 24 March 2016, the father’s solicitors wrote to the mother saying that the father was “concerned with your current state of health and whether this will impact on your ability to provide a safe environment for the children.”  This focus on the mother’s health then became a prominent issue between the parties, and further the father commenced to accuse the mother of neglecting the children’s hygiene and bathing requirements. 

6. Then on 27 March 2016, the parties met at a playground in order for the mother to spend time with the children.  The mother says in her affidavit:

   When I approached him he immediately pulled his phone from his pocket and played a recording of [D] singing a song that went “my pee pee … my pee pee” and then [the father] asking [D] who taught him the song, and [D] responding saying “poppy.”  The whole thing sounded ridiculously staged, and even then it wasn’t a very serious claim.  I didn’t know how to respond and sat there in silence.  I said that [Mr H] hadn’t taught him that, and suggested to him that he had made it up.  [The father] presented me with a form that said I would relinquish my rights to the children.  Obviously I refused to sign the document and [the father] became furious.  He said that he was going to take me to court, and play the recording to his solicitor and everyone in town.  He dragged the children off in a huff.

7. The draft parenting plan proffered by the father was annexed to the mother’s affidavit.  It is dated 27 March 2010.  It provided that the father would have “100%” of the children and that the mother “can communicate with [the children] through telephone calls and under supervision from [the father] when agreed by [the father], before and after school or weekends and holidays when agreed by [the father].”

8. For his part the father says that the mother requested him to draw up that agreement, but then reneged on signing it.  I reject that evidence.  I accept that the father produced that draft agreement to the mother at the time that he played the recording of D’s song.  If the mother had requested the father to produce such a document, it is nigh inexplicable that she then refused to sign it.

9. Thereafter the father was highly resistant to the mother seeing or speaking with the children.

10. On 12 May 2016 both children were interviewed by police in relation to what the father believed to have been an indecent assault of them by the mother’s step-father.  No criminal proceedings ensued. Those interviews were played in evidence in court before me, and I will discuss their detail later.

1. In 2016, the mother was seeing the children on her birthday.  In the course of their interaction, the father accused the mother of having hit C in a toilet at school, and proceeded to ask D words to the effect of “D who touched you?”  To which D replied “[Mr H].”  The father conceded that he had taught D to use the word “Mr H” rather than “poppy” as had been the custom prior to then.

2. On 3 June 2016 these proceedings were commenced by the mother in the Federal Circuit Court.  On 25 July 2016 interim orders were made by a Federal Circuit Court judge, providing for the children to remain living with the father and to spend time with the mother supervised by the father.  Thereafter that ensued, with the mother spending time with children at the G Town public library.

3. The father’s supervision of the mother’s time with the children became problematic.  He would either make demeaning comments to the mother in the children’s presence, or alternatively seek to restrict the children’s engagement with her.  However over time, it appears as though the time became less problematic.

4. Interviews for the first Family Report were conducted on 18 February 2017.  The Family Report writer observed that “[D] was very warm towards his mother.  He was evidently excited to see her and was regularly shouting out to get her attention.  He would show her his socks or his drawings or the toys he wanted to play with.  [C] was slower to warm up and more stand-offish towards her mother.  However, perhaps halfway through the observation, [C] asked her mother a question about her drawing and, having received an answer, she became more comfortable in her mother’s presence and even smiled at her on occasion and began speaking more freely.  She remained quite cool, however.”

5. In contradistinction, in relation to observations of the father and the children, the Family Report writer said at [83]:

   There seemed to be an absence of warmth, energy and emotion from the children that was surprising and unusual (especially when contrasted with the enthusiasm [D] demonstrated for the interaction with his mother).  They spoke frequently about what they were doing etc but they never smile, laughed, became angry or sad.

6. At [117] he continued:

   [The mother’s] relationship with the children has been significantly damaged since the separation occurred.  This has occurred through limited contact, through [the father’] interference during that contact, and probably through deliberate attempts by him to alienate the children from [the mother]… 

7. At [124] he continued:

   I cannot see any justification for ongoing parental supervision of [the mother’s] time with the children as I believe that any distress they are experiencing during those visits falls well short of emotional abuse and is likely exacerbated by the arrangements that have [the father] present.

8. On 29 March 2017 the parties attended a Family Dispute Resolution conference in which they were able to agree to the mother commencing to spend unsupervised time with the children on and from 2 April 2017.  It appears as though a couple of such unsupervised visits occurred.  However on 4 June 2017 the mother attended changeover in her step-father’s car, and the father refused to allow the children to go into the mother’s care, because she was in the step-father’s car.  He insisted that changeover could only occur if the mother was in her own car.  Not only did the children not go into the mother’s care on that occasion, but on the next five proposed visits, the father did not bring the children.  Indeed since 28 May 2017, the mother has not spent her scheduled time with the children.  Rather she has occasionally run into them in town in G Town.

9. On 7 June 2017 the father submitted to a roadside drug test and tested positive of both cannabis and methamphetamine.  He did not make admissions in relation to any recent drug use.  The children were in the car at the time.

10. The father says that on a date which he cannot recall, but which was prior to 19 June 2017, the children made further disclosures of mistreatment, and particularly that D told him that his mother had hit him over the head with a broom, and that the mother had told the children that she would kill them and the father for talking about the abuse which had been perpetrated upon them by Mr H.

11. On 14 June 2017 the Department received a notification in relation to the children.  The record of the notification included:

    [4 June] The kids have made disclosures of being hit around the head by [the mother] with a broom handle ([D]) and being hit with a dog toy bone around the bottom and back ([C]).  Also during this contact (thought to be recently as the children could not remember dates) [D] was taken to a park and [C] was left on her own with [the maternal step-grandfather] who has touched her between the legs.  [C] stated [the maternal step-grandfather] had tickled her between her legs and she was asked if it hurt and she said no it tickled.

12. The ensuing 93A interviews of both children conducted on 19 June 2017 were in evidence before me.  C’s interview is remarkable for the pure fantasy which it demonstrates.  She told police that her mother shot a gun many times in her bedroom and there were holes in the bedroom floor.  At the time she and D were underneath the house hiding from the mother.  They were only saved by their dog covering them with a thousand bones.  She also said that her mother nailed her hand to the floor with a silver nail, and arranged for a pet lion to come to the house.

13. D’s interview was devoid of detail in relation to any incident with the broom.  Repeatedly he said that he “didn’t know about that” in relation to questions seeking detail of his allegations.

14. At paragraph 28 of the second Family Report, Mr E noted as follows in relation to the 93A interviews:

    [28]. The police interviewed the children on 19.6.17 and I have listened to these interviews. In the interview [C] tells a very bizarre story of her brother being hit by a broom, her being mistreated by her mother, her mother having thousands of guns and shooting so many holes in the floor that she fell through and was rescued by her mother’s dog, who covered her and her brother in thousands of bones. [D’s] claims to the police were much simpler and less fantastical, and he claimed once again that [Mr H] had “touched me between the legs” and that his mother had “hit me on the head”; however, he added that [C] had also hit him on the head and later that [Mr H] had touched me “everywhere” whilst pointing to the sky, and that it had “felt really good” to be hit in the head with the broom. His disclosures lacked detail and he regularly answered, “I don’t know about that” or provided other vague answers, even when asked about the central allegations. The police interviewed [Ms Simmonds] about the allegations however she denied them absolutely and they took no further action. It was apparent that they did not believe the children’s stories.

15. As a result of the 93A interviews, it appears as though police referred the matter to the Department of Child Safety because they were concerned in relation to the potential of emotional abuse of the children by the father.

16. I must say that I have had great difficulty in understanding a logical sequencing of the father’s actions in relation to these allegations.  For instance, the father swore an affidavit on 6 June 2017 which was then filed by him on 14 July 2017.  Although it does not recount any events after 4 June, it seems curious that, if further matters of significance had occurred since 6 June, then it was nonetheless filed without amendment.  Moreover, the first mention in the father’s material of a threat by the mother to kill the children and the father for talking about abuse, is specifically identified (in his material filed by leave at the first day of the trial) as being on 8 October 2017.  Equally curious, is the absence of any note in the children’s doctor’s records of any such concerns in relation to D, but rather there is a note of a consultation with a general practitioner on 21 June 2017 that C “recently reported that she has been hit by the mother with a broom across the buttocks.”  Further, the mother’s solicitors sent emails to the father in relation to the non-presentation of the children for time with mother dated 18 and 30 October 2017, and 6 November 2017, to which it appears the father has made no response.  However, significantly, in the email of 18 October 2017, the mother’s solicitors specifically said “we are instructed that the reason you provided to our client is that both children were unwell, on both occasions” [those occasions being 8 and 15 October 2017].

17. The children were thereafter interviewed by Departmental officers.  The notes of an interview with C on 8 August 2017 record numerous assertions by her that her mother is “mean” or “very mean” with an inability to particularise examples of it other than ridiculous ones, for example the mother not letting her have a nap or not giving her an ice block after dinner.  However the notes then detail that she was asked “has anyone told her what to say” to which she said “no.”  That was followed up with a question “has dad ever told you?”  To which the answer was “when dad says don’t say I love you to mum.”  Later there is a note that “dad does tell her she can’t see mum.” 

18. This precipitated an interview between the officers and the father on the following day, in which officers are recorded as having said to the father:

    I am now worried for the emotional wellbeing and safety of the children in your care.  I am worried about the long term effects that this series of events will have on the children.  It also appears to me as though you are trying to alienate the children from the mother, which will also have negative consequences for the children into the future.

19. The Child Safety officer went on to say that he or she was concerned that the father had fabricated the allegations “so that you have a reason to withhold the children from [the mother].”

20. To all of this the father maintained that, in the course of domestic violence proceedings, Mr H had admitted to the abuse of the children.  Further, he continued to deny to departmental officers that he was a drug user.  However when pressed by the level of the reading of cannabis in his system in June, he relented and said that he did use drugs but “I don’t smoke it every day.”  Initially it appears that he tried to filibuster, and said that he last used over a month ago, but when confronted that his recent reading would not have occurred, then was recorded as saying “it was probably less than a month ago, it wouldn’t have been a month ago, probably two weeks ago or last weekend.”  Concerns were also raised that the presence of quinine in a blood test of the father was an attempt to mask the presence or use of methamphetamine.

21. It appears as though the father agreed to undertake a drug test for the purposes of the Child Safety investigation.  A further drug test was requested of the father and submitted to on 18 August.  That test is shown as demonstrating “++++ cannabinoids.”  There is then a note on the Department’s records of a telephone call to one of the pathology staff in relation to that result, which suggests that in the case of a chronic user of marijuana, such a result may persist for up to four weeks.

22. Although the date is difficult to discern, it appears as though the departmental investigation concluded as follows (tender bundle page 69):

    It has been assessed that [C] and [D] have suffered serious emotional harm from emotional abuse and lack of connection to their mother as a result of [the father’s] emotionally abusive, controlling and manipulative behaviours which primarily relates to [the father] telling the children not tell their mother they love her, telling the children that they are not safe with their mother, telling the children what they can and cannot say to departmental officers, withholding contact between the children and their mother…

23. Later that report continues:

    [The father] has denied any substance misuse, despite credible information that he suggests he failed a recent roadside drug test after methamphetamine and cannabis were found in his system and two (2) positive readings (++++) for cannabinoids after completing two (2) urine drug screens as requested by the department.

24. Later again it continued:

    Child Safety are worried that [the father] will continue to manipulate, lie and control what the children say and do in an attempt to further alienate them from their mother and that this may have a significantly detrimental effect on the emotional wellbeing of the children and further damage their relationship with their mother which could result in the children suffering from mental health issues, self-esteem issues, abandonment issues and substance abuse issues.  Child safety are worried that [the father] will continue to tell the children nasty things about their mother and instil an unwarranted fear in the children which would result in the children being frightened of their mother.

    …

    Child Safety are worried that the family’s living conditions are sub-standard and barely meet the physical needs of the children, that the state of the home is at times unhygienic .. Child Safety are worried that [the father] will not be able to maintain a safe and hygienic house for the children to live in…

    Child Safety are worried that [the father] is using drugs (methamphetamines and cannabis) when he is supposed to be caring for the children, is transporting the children whilst under the influence of drugs or whilst experiencing the after effects of drugs, and despite considerable evidence suggesting drug use, [the father] continues to deny any drug use.  Child Safety are worried that [the father’s] drug use may result in the children being neglected, abused, becoming scared, anxious, hurt or killed. 

25. Mr E raised the matters of C’s June 2017 police interview directly with her in his interview conducted on 11 November 2017.  At [81] of the subsequent family report he wrote:

    [81]. She said that she did not recall speaking to the police about the allegations that had been made. When I questioned her about elements of the reports she had made to the police she would confirm them, no matter how fantastical the element of the story was (for example that her mother had thousands of guns). Oddly, however, she did not voluntarily report any element of the story that she told the police. Possible explanations include that she could not properly remember the story or that she was trying to tell me whatever it was she thought I wished to hear. Questions about aspects of the story would then prompt her to believe that this was what I was interested in and lead to her “confirming” the comments she had previously made.

26. Likewise Mr E raised these matters with D, and at paragraph [91] – [94] reported:

    [91]. He told me about some of the allegations that he had made to the police, but when I questioned him more closely he couldn’t provide more details but added “if you come to my house tomorrow I’ll tell you” and (when I protested that I would not be travelling to [G Town]) “if dad pops in tomorrow he’ll tell you.” Unlike his sister he denied that he had ever seen a real gun.

    [92]. Bizarrely he told me that his mother had put a dog in their mailbox.

    [93]. Unsolicited he began telling me that [Mr H] (ie his mother’s stepfather) is a “bad person” but when asked to elaborate he said “[Mr H] touched me on the bum and between the legs – that’s about it.”

    [94]. He told me that he had liked his room at his mother’s house – but that his father had told him he was not allowed to go there any more he repeated this later in the interview. He told me that his mother is “scary” and immediately afterwards said “dad told me to say that.” Near the end of the interview he told me that his father had “said mum is bad to me, 14 times today, in the car coming here.”

27. He then continued at paragraph [97] as follows:

    Evidently [D] is a very confused young boy.  He often contradicts himself within moments and I think it is likely that sometimes his father’s opinion is the first one he utters, whilst on other occasions his impulsive first comment is more likely to represent his true attitude.  Unfortunately the level of confusion and probable coaching strongly suggests that [D’s] view should be given minimal weighting by the court, when the time comes to identify his best interest.

28. Also in the course of those interviews, Mr E observed interactions between the parents and the children.  He reported at [35] – [39] as follows:

    [35]. On this occasion [the mother’s] interaction with the children was the second for the day. It commenced with [D] quite rudely telling his mother that “these are not for you to play with” (in reference to the toys); immediately thereafter, however, [C] showed her mother her bag and [D] immediately settled and they began to swap stories about their lives and what had been going on recently. This is obviously particularly important for [the mother], given her limited contact and knowledge of the children’s lives.

    [36]. She let the children choose the activates and joined in. If she set or led an activity she ensured it was child-directed and age appropriate, for example when she played a game clicking her fingers in patterns for the children to replicate.

    [37]. After the initial unpleasantness, there was a lot of positive energy and engagement between the mother and the children. The children became boisterous and were both speaking simultaneously and loudly, trying to get their mother’s attention.

    [38]. The mother did hang back from the children throughout the observation, and they also largely maintained their distance from her. At the end, she got close enough to [D] to wipe his eyes; otherwise there was not much physical contact.

    [39]. Overall it was a positive interaction, with [the mother] able to manage any negative emotions at the start and go on to have a good interaction with the children. However, I did note the absence of any physical contact, for example hugs, either at the beginning or the end; this was worthy of note given that the children had been separated from their mother for a period of quite some time. There did seem to be some awkwardness or discomfort.

29. As regards his observations with the father, he reported as follows at [68] – [72]:

    [68]. On this occasion [the father] sat down at the children’s table and interacted with the children on their level. The children could play independently and select their own activities, and then [the father] would become gradually involved particularly when he invited to join the play by one child or the other.

    [69]. There were positive displays of emotion back and forth between all the parties, with all of them seeming to enjoy the play.

    [70]. Overall their (sic) seemed to be a positive bond between [the father] and the children. They sat closely together, were warm towards one another, and seemed comfortable in each other’s presence. The children looked to the father for approval and reassurance.

    [71]. There were no negative emotions.

    [72]. Overall it was a positive interaction, with greater levels of positive engagement and energy than had been evidence in the previous interaction.

Current situation

1. As at the time of trial, the father remained living at the property formally occupied by the parties, and was in casual employment, although the extent of his employment is unclear.  He appears to be engaged in a local community men’s group.  He says that he no longer takes marijuana, and has been prescribed medication to help him not feel any cravings for cannabis.  That is, to a degree, supported by a doctor’s note for 14 November 2017, which records a prescription of a drug, seemingly to assist with cannabis addiction.

2. The mother remains living in rented accommodation in G Town, and is employed as a shop assistant.  She presently works between 8:30am and 5:30pm on Thursday and Friday, and from 8:30am until 12:30pm on Saturday.  She says that she is in discussions with her employer to cover the eventuality that the children move into her care, and particularly that she would be able to work hours and days which did not interrupt with her care of the children before or after school and on weekends.

1. The mother wishes to relocate from G Town, perhaps to B Town or the J Town.  She has family in both places.

2. The children appear to be doing well at school, with C in year one and D seemingly in prep.

THE ISSUES

1. With the assistance of the parties at the Trial Management Hearing I identified the following as the issues raised in these proceedings, in the sense that their determination is likely to substantially impact upon the outcome of the proceedings:

   1.What is the nature of the relationship between the children and each parent.

   2.Would the children benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.

   3.What risk, if any, does each parent and their household pose to the children, and what means are available to mitigate any such risk.

   4.Would each parent facilitate a meaningful relationship between the children and the other parent.

   5.What would be the impact upon the children of each party’s proposal.

   6.Could the parties’ communication adequately support equal shared parental responsibility, or sole parental responsibility with an obligation to consult the other parent.  

2. Once I have considered the relevant statutory provisions and legal principles, but in advance of a traverse of any residually relevant s 60CC considerations, I will discuss those issues and then consider the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   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 fact 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.

3. Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s.140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities.

4. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

   [2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [20] and [25] the Court said as follows:

   20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   …

   25. 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] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 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.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

NATURE OF RELATIONSHIP BETWEEN CHILDREN AND EACH PARENT

1. It was not in dispute that, leaving aside issues of alienation, the father has been very emotionally supportive of the children, and spends nearly all of his time with them.  So much was the evidence of Mr E, and he was not challenged in that respect.  He conceded that the children derived comfort, nurture and support from the father, although as has been noted, there is some criticism liable to be levelled at the father in relation to the physical environment in which the children are growing up.  Mr E described it as “just good enough.”

2. The mother’s relationship with the children was more vexed.  The father asserts that the children are scared of her, and positively tell him that they do not love her.  He denies that he has told the children that they are not to tell her that they love her, although I reject his evidence in that respect and am well satisfied that what the children told the departmental officers was correct in that regard.  Nonetheless, it is likely that the father’s efforts in this regard have had some degree of success.  That was reflected in Mr E’s evidence that the mother’s relationship with the children is now a disrupted one, albeit not irreparable.  As to the prospects of repair, he predicted that the children would quickly derive nurture, comfort and support from her, and would just need time to engage with her in play, cooking, eating, and so forth. 

3. I accept that evidence.

BENEFIT FROM MEANINGFUL RELATIONSHIP AND HOW BEST FACILITATED

1. Again this did not prove to be particularly controversial.  Mr E’s unchallenged evidence was that the children would benefit from a meaningful relationship with both parents, save for his reservation in relation to the father’s alienation of the children from the mother.  However leaving that to one side, he conceded that otherwise the children would best benefit from a meaningful relationship with each parent by them spending regular face to face time with them, and being involved in all areas of their lives.  However, of course, the question of alienation is a large one in this case, and I will discuss it in the following paragraphs.

RISK OF HARM POSED BY PARENTS AND MEANS OF MITIGATION

The mother

Overview

1. The father asserts several species of risk posed to the children by the mother, and those with whom she associates.  The first is an alleged risk of them being sexually abused, particularly by the maternal step-grandfather.  The second is the risk of physical abuse by the mother, and the father particularly places emphasis upon the allegation that the children were struck by a broom handle by her.  Thirdly the father asserts that the mother’s family is associated with violence and firearms, and to this extent therefore the mother likewise poses such a risk.  It might be that the father also asserts that the mother herself is engaged with firearms, based upon what the children have said to him.  I will discuss each of those individually.

Sexual harm

1. The father asserts that there have been two episodes in which the children have been sexually abused.  It is difficult to pin those down with any specificity however.  The first appears to be the alleged offence which led to the 93A interviews in 2016, which involved the maternal step-grandfather allegedly touching the children inappropriately in their genital areas, perhaps in association with them playing on a trampoline.

2. These have been comprehensively investigated by police, and not only the children, but the parents and the maternal step-grandfather have been interviewed.  Moreover, Mr E has also raised the topic with the children.

3. It is useful to consider the sequence of events.  It is said that the father heard the children singing a song “where is pee pee” after returning from the mother’s care.  In cross-examination he said that he could not recall the date when the children were singing it, but thought it was in 2016, prior to the first court orders being made.  He said that initially they were both singing it in the back of the car on the way home, and he told them to desist.  However when they returned home, they commenced singing it again whilst sitting on the floor, and pointing to their respective private parts.  He then asked them who had taught them that song, to which he says they responded “poppy.”  He thereupon formed the view that something was not right, and apparently that caused him to record the children singing, so as he could take to police and his solicitors.  It also appears, on his version of events, that it was at this time, in response to his questioning of the children, that they also alleged that the maternal step-grandfather had touched them, although it is not clear.

1. There is no dispute that whenever these conversations occurred, it must have been prior to 27 March 2016, because the mother’s unchallenged evidence is that it was on that day that the father played the recording of D singing the song to her.

2. However only three days earlier, on 24 March 2016, the father’s solicitors had written to the mother raising various concerns.  Even accepting that the letter may not have been written on the same day as they conferred with their client, and there may have been some delay between his instructing them and the date of that letter, it is remarkable that no reference is made to the allegation of sexual abuse.  Rather what is raised is:

   ·A request for the copy of the lease;

   ·Concerns in relation to the mother’s state of health;

   ·Concerns in relation to the children being placed in the care of the maternal grandmother or the maternal step-grandfather “for extended periods of time unsupervised.”  However the issue of concern raised about that was that the father “is concerned about the past drug abuse and incidents of violence that have occurred in the household of your mother and step-father.  Our client does not believe that this is a safe environment in which to leave the children unsupervised.”

3. I am quite confident that if, by 24 March 2016, the father had raised questions of sexual abuse with his solicitors, they would have included those in the letter.  Therefore the time when the recording was made must logically be between the time when the father gave instructions to his solicitors resulting in the letter of 24 March, and 27 March 2016.  Moreover, the mother’s uncontested evidence is that on 22 March 2016, the father told her that he was going to see his solicitor to ensure that she would never see the children again.

4. Under the then parenting plan, the mother would have spent time with the children on Saturday 19 and Sunday 20 March.  The conversation with the father in relation to him going to the solicitors was then on Tuesday 22 March.  It presumably led to the letter of 24 March, and yet the father would have me believe that (seemingly) the recording must have been made at the latest on Sunday 20 March, or perhaps Sunday 13 March.  Assuming that chronology to be correct, it is inexplicable that the father did not tell his solicitors about the recording in the conference which led to the letter of 24 March.  One possible explanation for the recording then, is that it was not made when the father alleges, but was made during the week, and presumably after his conference with the solicitors which led to the letter of 24 March.  The difficulty for the father if that scenario be correct, is that it demonstrates quite powerfully that he likely coached the children to sing the song.

5. It is impossible to ignore the context of events at that time.  The parties had only recently entered into a parenting plan on 16 February 2016.  The effect of the mother obtaining independent accommodation so swiftly was, of course, to change the care of the children from primarily living with the father to primarily living with the mother.  I am well satisfied that the father did not expect the mother to be able to obtain accommodation as quickly as she did.

6. (In his affidavit sworn 2 September 2016, the father asserts that the children’s disclosures were made on 6 April 2016.  However I reject that evidence, because it post-dates the date on the draft handwritten parenting agreement of 27 March 2010.  The father proffers no other justification for the draft parenting plan, and logically no other justification other than sexual abuse could exist.  I therefore do not accept the father’s assertion that the disclosures were on 6 April).

7. All this creates some other difficulties for the father, not least of which is that he then waited until 18 April to go to police.  However prior to then, the mother had continued to speak with the children by telephone and spent time with the children walking them to school, although it appears as though the father was not making the children available for overnight time.

8. The children were not interviewed by police until 12 May 2016.  Prior to then, the father had provided to police the recording of the song, but they noted that the recording was indistinct.  Moreover the interviews with the children led to inconsistent versions, and particularly, initially the children said that they had been touched at their front, but then later changed it to the back.  That said, both children were able to volunteer a degree of detail, for instance that it involved a trampolining episode, that the touching was over their clothes (and they were able to give some detail of the clothes), but both children launched into the interview knowing full well they were there “to talk about [Mr H]” ([C]) or that “poppy touched my bottom” ([D]).

9. The father says that he believes what the children said during their 93A interviews, and doesn’t appear to be much concerned by any inconsistency or lack of ability to provide detail.  That said, he does seem to pick and choose which of the children’s statements he wishes to believe: for instance he does not believe C when she told Child Safety officers that he had told her that she was not to tell the mother that she loved her.  Precisely why he picked and chose only those parts of the children’s interviews which suited his case was not explained by him.

10. Of course the father’s credibility is clearly brought into question by this issue.  Also live in assessing the father’s credibility is his history of admission or non-admission of drug use.  The mother’s affidavit relied upon by her in the trial is replete with instances of the father abusing drugs during the course of their relationship.  These include marijuana and methamphetamine.  In his oral evidence under cross-examination, the father asserted that he had not used methamphetamine since the children were born.

11. It is fair to say that I am well satisfied that the father has been consistently dishonest in relation to his drug use.  The only occasion when he has frankly admitted his use was to his general medical practitioner on 14 November 2017, when he admitted to taking cannabis “mostly at night to help sleep and to help with shoulder.”  He was then prescribed a drug apparently designed to assist him to wean off cannabis.  The evidence does not indicate any repeat prescription for that drug.  However interestingly, to the same medical practitioner on 20 July 2016, he is recorded in the notes as “denies doing any drugs.”  Plainly that was untrue.  Indeed before me, the father said that he had been taking marijuana (apparently he takes it as either a pancake or a cupcake) for 20 years.

12. I have already referred to him testing positive for cannabis and methamphetamine in June 2017.  I have further also referred to the two urine tests requested of him by DoCS in August 2017 in which he tested “+++++ cannabinoids.”  There was then the challenging of him by DoCS Officers about his denial of using drugs, until, as I have noted, he eventually accepted recent use of cannabis by him.

13. The father would have it believed that his positive result in a random roadside testing in June 2017 for methamphetamine was not as a result of him ingesting that substance, but rather, perhaps, because the marijuana he was using had been laced with it.  I regret that his history of dishonesty in relation to drug use persuades me that such a possibility is quite unlikely.  The more likely explanation is that, consistent with the mother’s evidence of his use of amphetamines and methamphetamines during the relationship, it was actual advertent use which caused him to test positive.

14. Moreover the father has presented on occasion to DoCS Officers with scabs on his face.  He has sought to explain them in a variety of ways, including suffering from eczema or other rashes which he has scratched.  The mother says that she identified during the course of the relationship that the father would regularly present with such facial features as a result of taking amphetamine and methamphetamine.  It seems to me that is a more likely explanation for the scabs which DoCS Officers observed.

15. I regret to conclude that the father is well capable of lying in relation to things such as drug use, and is motivated to lie when he believes that doing so may improve his prospects, particularly in the circumstances of this case.

16. Against that background of his credibility, I am deeply troubled that the father has coached the children to make certain statements, and particularly comments adverse to the mother.  His denials that he has done so carry little weight with me, given my satisfaction that he is well capable of lying when it suits him.

17. In this respect the children’s comments to the Family Report writer during the course of their interviews, become important.  Thus, as I have already noted, at paragraph [94] of the second Family Report, Mr E recorded that D had said, in relation to the comment that his mother was scary, that “dad told me to say that.”  Further he said to Mr E that his father had said “mum is bad to me 14 times today, in the car coming here.”

18. Regrettably that persuades me that the children’s disclosures are highly unreliable where they are adverse to the mother, or where they are supportive of the father.  Notwithstanding the gravity of the matter, nonetheless I am satisfied, on the balance of probabilities, that the father has been manipulating these children, and likely has been coaching them to make deliberately false allegations in relation to the mother.  That coaching is likely to have extended to their allegations in relation to the maternal family generally.

19. The evidence falls far short of persuading me that there has been any improper dealing with the children by the maternal step-grandfather.

20. However the father’s allegations did not stop there.  He asserted that the mother herself had knowingly permitted the children to be sexually assaulted by the maternal step-grandfather.  He specifically said under cross-examination he believed she was aware it was happening, and therefore she had condoned it.  He agreed with the suggestion that she was therefore complicit in having the children sexually abused by their step-grandfather.  In his oral evidence he said that supervision – even strict Contact Centre supervision – would not adequately protect the children.  He conceded that he would never believe that the abuse had not occurred, or that the mother was not complicit in it.

21. I regret to say that, in my opinion, the father’s evidence in this respect borders on the delusional.  There is nothing in the children’s disclosures to suggest that the mother was in some way complicit in any sexual abuse, and to make that allegation against her, without the benefit of any evidence, demonstrates a level of desperation on the part of the father.

22. Of course there is no doubting that, in the event that the children had been, or were to be, sexually abused by any member of the maternal family, the impact upon them would likely be devastating and long lived.  However the prospect of them being sexually abused must be dismissed as remote.  In this regard the maternal step-grandfather gave evidence before me.  He robustly denied any misconduct.  He has no conviction for any past such conduct.  There is no suggestion in the material that he is interested sexually in young persons.

23. Moreover, as I have analysed, there are deep concerns arising from the timing of the father’s raising of these allegations.  I accept the mother’s contention that there is at least a significant degree of strategy in the timing of their arising, particularly given the prospect of the children moving into the mother’s primary care, and thereafter only spending weekend time with the father.  I am satisfied that the father has raised these allegations strategically, that they are not based in fact, and that he has done so to try and restrict the children’s time with the mother.

24. Putting all of that together, I am not satisfied that the mother or her household poses any material risk of sexual harm to the children, if they were to spend unsupervised time with her and her family.

25. There is no necessity to introduce mitigatory measures to combat such a slight risk.  The father’s suggestion that the only means of mitigating the risk is to deny the children any time with the mother must be rejected out of hand.  His fall-back position, articulated after the close of evidence and indeed after the trial had concluded, namely that the mother should spend unsupervised time with the children once a week in a public place under CCTV, likewise is an overreaction.  There is no requirement for supervision, or monitoring of any kind.

Physical abuse

1. The father would have me believe that the mother has struck both the children with a broom handle.  He would have me believe that D was struck to the head and C to the buttocks.

2. As to C, there seems little evidence of that from her own mouth.  As to D, it appears as though the father says that because he complained of a sore head, and in the course of questioning identified that the mother had hit him with a broom, that I should be satisfied that such an event occurred.  I am not.  Not only was D’ 93A interview inconsistent in this regard (particularly when he said that being hit in the head made him feel good) but there is no suggestion that the child presented with any injury of any consequence.

3. Allied to this was the father’s strange belief that the children’s recollections (particularly C’s) in the 93A interviews in 2017 were the product of them being administered a hallucinogenic drug by the mother.  One has to say that the father would even articulate such a belief, introduces a real level of doubt as to his engagement with reality.  He would have me believe that on an occasion that the children came back from the mother’s care, they were acting strangely and he formed the view that they may have been administered a hallucinogenic drug.  However interestingly, not only is there no record of that in the medical records, but in the father’s DoCS interview (TB42) there is reference not to the father’s concern in relation to the administration of drugs, but that the children’s presentation was the product of being hit around the head.  Thus in the father’s interview on 19 July 2017 it is recorded that “D would sometimes come back from his mother’s place confused.  He didn’t know what was up or down and his speech would be slurry.  I took him to a doctor (Dr K in G Town) and he said that if he was being hit around the head then it was likely he would be confused and his speech would be slurred.”  Not only is this quite different to a belief then being held by the father in relation to the administration of a drug, but further, his version is not borne out by the medical records of that doctor, or at least those records that were in evidence before me.

4. The evidence falls well short of satisfying me that the mother has ever administered harsh physical discipline to the children of the kind being alleged upon by the father.  If she did, then again, of course, the likelihood of harm being suffered by the children would likely be high, but I am satisfied that the prospect of her doing so is extremely low.

Violence/firearms

1. The father raised a battery of allegations against the mother’s family, who he said were generally violent and involved with firearms.  It appears as though, two years ago, the mother’s brother was released from a period of time in jail arising from his conviction for some species of offence involving violence.  That brother, his partner and their children now reside with the maternal grandparents.  It seems likely they will continue to do so.

2. Further the father alleges that on numerous occasions the maternal step-grandfather has threatened him, or acted in a threatening way.  The father has obtained a domestic violence order against the maternal step-grandfather, but no proceedings for any breach of it have been brought.

3. Even if what the father says is true, precisely how that infects the mother, or particularly, makes her an unacceptable risk of harm to the children by virtue of these matters, is unclear.  I am not satisfied that the mother presents and unacceptable risk of harm to the children in relation to exposure to violence or firearms.

Conclusion

1. I am not satisfied that the mother presents any material risk of harm to the children as asserted by the father.

The father

Overview

1. The risks posed by the father are again said to be of three species.  The first was his risk of emotional harm to the children from him attempting to alienate them from the mother.  The second was the risk of harm to the children from his alleged drug use.  The third was the risk of harm to the children arising from the somewhat squalid conditions in which he lives.  I will deal with them sequentially.

Alienation and risk of emotional harm

1. I have already significantly traversed the material relevant to this consideration.  I am satisfied that the father was taken by surprise with the speed at which the mother was able to obtain independent housing in G Town, with the consequence that, under the February 2016 parenting plan, the children were to move primarily into her care.  I am satisfied that since then, the father has been deliberately manipulating the situation, including coaching the children, so as to keep the children in his care.  As I have noted, a close examination of the sequence of events of March and April 2016 virtually compel such a conclusion.

2. I accept the mother’s evidence that throughout the relationship the father was controlling of her.  Particularly I accept that it was undertaken by financial control, by controlling her social circle, and by restricting her ability to independently leave the property where they were living.  Unfortunately I am satisfied that the father does have a controlling aspect to his character, which has continued to demonstrate itself in relation to his controlling the mother’s relationship with the children.

3. The father has used virtually every pretext to withhold the children from the mother, or to restrict her uninhibited time with them.  The most glaring example must be the refusal of the father to allow the children to go into the mother’s care when she brought to the changeover the maternal step-grandfather’s car.  Other examples include the father refusing to let the mother attend the children’s school to work in the tuckshop, or like, on the basis that it would comprise breach of orders.  Plainly it would not.

4. I have already noted the departmental concerns in relation to the likely impact on the children of being denied a relationship with their mother.  These were echoed by Mr E.

5. I am satisfied that the father is intent on denying the children a relationship with their mother.  I am satisfied that the effect of doing so is likely to be considerable upon the children, including the risks of emotional harm identified by the department in their several reports.

6. In the short to medium term, the only way of mitigating that risk is to insist upon strict supervision of the father’s time.  For instance, he must be stopped from denying the children the opportunity of telling the mother that they love her.  He must be prevented from either implanting such ideas into the children, or exaggerating ideas which they initiate.  Sadly, because I, as do the relevant professionals, assess that the father has no insight into the impact which his behaviour is likely to have upon the children, he will see no reason to desist from the untoward activity which he has undertaken to date.  Strict supervision is therefore the only appropriate means to mitigate the risk he poses.

Drug use

1. The fact that the father has, over a long period of time, lied in relation to his drug use, does not necessarily translate into him presently being a regular user of cannabis or methamphetamine.  It merely raises a high level of suspicion that he is likely to either still be engaged, or to relapse in due course.  There is limited comfort to be drawn from the prescription of a drug to wean him off marijuana in November 2016, particularly given the lack of any evidence of continued prescription.  The father’s own protestations in this regard deserve little weight.

1. Mr E was less concerned about the physical risks associated with drug use, as the emotional unavailability of a parent.  That was principally, as I understand his evidence, directed towards cannabis use, however he was concerned in relation to the prospect of the children being exposed to anger and violence if there was amphetamine use.  He also agreed that there was a risk, if the children grew up to think that drug use was an acceptable activity, that they would become normalised to it, with a risk themselves of engaging in abuse of the drug.

2. However in a sense, the proof of the pudding is in the eating.  These children appear to be physically well, achieving well at school, and otherwise, apart from their fear of their mother, ordinary children.

3. Whilst I cannot exclude that the father is a risk of harm to the children from his use of drugs, I am not persuaded that it is a risk of such materiality as, taken in isolation, to require his time with the children to be strictly supervised.

Home conditions

1. It appears as though the father’s home is rudimentary.  I have observed that it has no connection to mains electricity or water, and the structure itself is very basic.  The departmental material suggests that, on occasions, the house is filthy, untidy and not well maintained.  It is said that both domestic and wild animals can access the home, and there is some prospect of vermin or dangerous wildlife in the vicinity.  However even taken at its highest, the material falls far short of persuading me that the father’s home environment poses an unacceptable risk of physical or emotional harm to the children.

Conclusion

1. Of itself and without more, the father’s alienation of the mother from the children poses an unacceptable risk of harm to them.  Taken in conjunction with my deep suspicions that he continues to remain engaged in the drug culture, and the less than desirable circumstances of his home, the evidence well persuades me that living in the father’s care poses a real and unacceptable risk of harm to the children.  The means of mitigation are to remove them from his care and to insist upon, at least in the short to medium term, his time with the children being supervised on a strict basis.

FACILITATION OF MEANINGFUL RELATIONSHIP BETWEEN CHILDREN AND PARENT

The father

1. Sadly the evidence only points to a conclusion that the father has not supported, is not supporting, and will not support, a relationship between the children and the mother, that could be described as meaningful.  Whether he can change his ways in that regard is yet to be seen.  The emphatic nature of his evidence under cross-examination would tend to suggest he is unlikely to be able to.  His intractable belief (at least at the time he gave his evidence) that the children have been sexually abused, that the mother was knowingly complicit in relation to that, and that even strict supervision would not ameliorate the risk, points strongly towards him being incapable of recognising any benefit to the children from their relationship with the mother, much less facilitating it.  Indeed he conceded as much.  He was asked whether, if the children were stay in his care, he would encourage any contact with the mother.  His answer was that he would wait until they were older and let them make up their own minds.  By then, of course, he would have poisoned them completely against the mother.

2. I am well convinced that the father will never, unless he is able to change his views in a marked and significant way, be able to facilitate a meaningful relationship between the children and the mother.

The mother

1. Mr E’s unchallenged evidence was that the mother was more open to facilitating a meaningful relationship between the children and the father, than he was of her.  That said, he conceded that the mother’s position had changed over time.  Initially she was not insistent upon strict supervision of the father’s time, but now is.

2. I can well understand the reluctance on the part of the mother to allow the father unhindered access to the children, if he is to persist in his campaign of vilification of her, and in his designs to ensure that they do not have a meaningful relationship with her.  He is likely to continue to use any opportunity of unsupervised time with the children to undermine the development of any relationship between her and the children.  Therefore her concerns in relation to the father are justified.  That said, I am reasonably confident that in the event that the father were not to abuse his time with the children so as to try and subvert her relationship with them, she nonetheless perceives that there is some benefit to the children in having a meaningful relationship with him.  Certainly, as between the parties, the mother is far more likely to facilitate a meaningful relationship between the children and the father, than he is with her.

IMPACT ON CHILDREN OF PARTIES’ PROPOSALS

1. Mr E’s unchallenged evidence was that the effect of the mother’s proposal would be short to medium term distress of the children.  That said, he was of the view that there would be no long term adverse impacts upon the children, unless they were to lose the relationship with the father altogether.  In his second Family Report he specifically addressed these issues.  At [86] in relation to C, he said as follows:

   [86]. In the event that her circumstances were changed (for example a court order required her to live with [Ms Simmonds]), [C] would likely experience an acute period of distress, followed by ongoing distress until she settled into her new routines and her environment. Notwithstanding that, as the arrangements to date have been so inadequate her best interest is served by identifying and implementing arrangements that will allow her to develop and thrive, preferably whilst exercising her right to have a relationship with both parents, rather than arrangements that focus on maintaining stability.

2. Then, at [98] in relation to D, he said in relation to the change as proposed by the mother, the following:

   [98]. Like his sister, [D] might demonstrate some initial difficulties adjusting to changes in his living arrangements; however he too requires appropriate arrangements to be put into place, and as is the case with his sister, this is more important than guaranteeing stability for him.

3. I accept that evidence.  It was not challenged in any substantial way.

4. As to the impact upon the children of the father’s proposal, Mr E thought that, in the short term, there would be no adverse impact upon the children, because that is the life they are presently living.  As to the long term consequences, he thought that they were difficult to anticipate.  He said that the literature demonstrates that children benefit from both parents, and if they lose a parent, it can impact upon their self-esteem, although that would largely depend upon whether they continue to be out of touch with reality.

5. I am satisfied that the long-term alienation of the children from the mother is indeed a matter the consequences of which are difficult to predict, but I am satisfied that they are likely to be adverse, and potentially significantly adverse.  Certainly I am not satisfied that there would be any benefit to the children from not having a relationship with the mother.

COULD THE PARTIES’ COMMUNICATION ADEQUATELY SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY OR CONSULTATION

1. There have been orders for equal shared parental responsibility now in place for about two years.  They have never in fact been implemented.  The father has acted unilaterally in making all decisions in relation to the children, and has not sought any input from the mother.

2. Neither party proposes equal shared parental responsibility.  Whilst this is not a case in which the evidence is replete with examples of offensive or provocative communication between the parties, likewise it does not contain examples of the parties being able to cooperate in joint decision making.  I am not satisfied on the basis of the material before me that the parties could indeed make joint decisions in relation to major contentious issues in relation to the children.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already addressed both of the primary considerations and some of the additional considerations in traversing the issues.  Nonetheless I make the further following observations.

2. The children have both expressed views, on occasion, that they wish to remain living with the father and spend no, or limited, time with the mother.  However I am not satisfied that these children’s views should be given much weight, because I am satisfied that they are likely the product of manipulation by the father.  In this regard I accept the evidence of Mr E.

3. The children have in the past had relationships with their cousins both on their father’s and mother’s side.  Both of the father’s parents are deceased, although he maintains a relationship with his step-father.  The children appear to have historical relations with the maternal grandparents, but I have no indication as to the present quality of that relationship.

4. To the extent that during the course of her cancer treatment the mother was not fully engaged with the children, I give that little weight.

5. The mother apparently pays child support to the father in relation to the children.

6. The mother alleges that the father was violent towards her, both during the relationship, and at its conclusion.  That said, family violence orders have never applied between them.  Whilst I tend to accept the mother’s evidence in relation to the father’s family violence, this is not a case which is determined by family violence, or any family violence orders.

7. In the event that I order supervised time between the children and either parent, there is a prospect of further litigation, which plainly would be undesirable.

PARENTAL RESPONSIBILITY

1. Neither party contended for equal shared parental responsibility. I am satisfied that there are reasonable grounds to believe that there was family violence in the relationship, and hence the presumption does not apply. In any event I am not satisfied that such an order would be in the best interests of the children because I am not satisfied that the parties have demonstrated, or have the capacity to, in fact discharge the obligations of equal shared parental responsibility under s 65DAC. I am satisfied that there should be an order for sole parental responsibility, and that it should flow to whoever is the primary resident parent of the children.

WITH WHOM SHOULD THE CHILDREN LIVE

1. The father proposes that the children should live with him; the mother and Independent Children's Lawyer proposed that the children should live with the mother.  Further, the mother wishes to have the opportunity to relocate away from G Town should she so wish.

2. During the course of the trial, I identified the following points in favour of the respective parties’ proposals:

Points in favour of father’s proposal (or against mother’s proposal)

·The father’s proposal would eliminate any risks posed by the mother and her family (noting that any such risks are slight);

·The father’s proposal would maximise the opportunity for children to have a meaningful relationship with him, and derive benefit from it;

·The mother’s proposal sees significant disruption to children’s lives, (noting they have lived all their lives at their present address) with the likelihood that they will suffer real distress in the short to medium term;

·The father’s proposal would not see disruption in the children’s lives, or upset/distress them in the way the mother’s proposal will;

·The mother’s proposal carries a substantial risk of ongoing litigation;

·The children have always lived with the father since separation;

·The father’s proposal accords with the children’s wishes (albeit they are very young and may have been influenced) [noting I am now satisfied that they were so influenced];

·If she were to relocate away from G Town, the mother’s proposal may significantly reduce the likelihood of the children thereafter enjoying a meaningful relationship with the father.

Points in favour of mother’s proposal (or against father’s proposal)      

·The mother’s proposal is the only one which sees children have a meaningful relationship with her;

·The mother’s proposal is the only one with any prospect of the children having a meaningful relationship with both their parents;

·The mother is more likely to facilitate a meaningful relationship between the father and the children than vice versa;

·The father’s proposal runs a real risk of long term emotional harm to the children if they are denied a relationship with the mother;

·The mother’s proposal mitigates the risks of harm posed to the children by the father (of emotional harm from alienation from the mother, and physical harm from drugs and/or poor home environment);

·The mother was the primary carer for the children until separation;

·Relocation by the mother would reduce the prospect of chance encounters between the father and the children in G Town.

1. Of particular significance here, is the fact that I am persuaded that the father will not, in any meaningful way, presently seek to facilitate a relationship between the children and the mother.  Whether honestly or otherwise, he believes it is best for the children not to have a relationship with her.  He is, of course, gravely mistaken.  He needs to change.

2. Ultimately it is that issue which I give greatest weight to.  It weighs tellingly in favour of the mother’s and the Independent Children's Lawyer’s proposal which I assess as being in the children’s best interests.  The children will therefore forthwith move into the mother’s care.

TIME AND COMMUNICATION WITH FATHER

1. This case raises some interesting issues.  G Town is a small town with a small shopping precinct.  The evidence is replete with examples of the parents accidentally running into each other, and the mother inadvertently coming into contact with the children.  So long as they remain living where they do, no matter in whose care the children are, there is a risk of that continuing, which probably borders on certainty.

2. However leaving that to one side for the moment, I am satisfied that the father simply cannot be trusted to have unsupervised time with the children for the immediately foreseeable future.  He has been intent, I am satisfied, on alienating the children from their mother, and ensuring that they do not have an extant relationship with her.  For a significant period of time, his time with the children will need to be strictly supervised, to ensure that they are not continued to be exposed to that risk of harm.  Strict supervision will also ensure that any adverse effects that the father may be suffering from if he ingests drugs, are also mitigated.

3. The difficulty is that permanent orders for Contact Centre supervision are both legally and practically troubling.  It is legally troubling, because of the various Full Court decisions which have on the one hand, indicated that there needs to be clear reasons established for ongoing permanent supervision, and particularly why a parent should not have the opportunity to seek to have supervision relaxed in the future.  On the other hand, there is the question that if only permanent supervision can mitigate the risks, what benefit is there to the child of the relationship.

4. On a practical level, supervision in this case is problematic.  So long as the mother remains living in G Town, the only available supervision is in B Town, some considerable drive away.  Therefore not only would the children be required to travel there and back, but the amount of time that could be offered by the Contact Centre is likely to be limited to two hours a fortnight.  Effectively that would require the children to lose an entire day in order to enjoy two hours of time with their father.  Further, Mr E was troubled that strict Contact Centre supervision does not provide an organic experience between the child and the parent, and is particularly unsuitable in relation to teenage children.  That seems nothing more than common sense, and I accept that evidence.

5. Perhaps with these concerns in mind, Mr E recommended a regime of interim orders, with a further Family Report being prepared at the conclusion of the interim period.  Particularly he thought that, in that interim period, the father should be required to undertake psychological counselling, and specifically that he “urgently seeks psychological assistance and participate in psychotherapy to help him develop insight into his own needs and the needs and best interests of his children.”  However this Court does not have the power to impose such orders without the consent of the parties: see L v T[1999] FamCA 1699; (1999) FLC 92-875; 25 Fam LR 590.

6. I have grave doubts that the father will ever avail himself of the sort of psychological assistance which Mr E contemplated.  The father perceives that his view is right, and that the children should not have a relationship with the mother.  Therefore there is some real prospect that the father will never move beyond Contact Centre supervision, unless he is able to make the sorts of changes which Mr E suggests he should undertake.

7. Although far from an ideal solution, ultimately I am satisfied that there should be a period of moratorium of the children spending time with the father of two months, at the conclusion of which Contact Centre time should commence.  I am further satisfied that after ten months of Contact Centre time, the father should have the capacity to seek, pursuant to liberty to apply, to review his time with the children, and particularly the requirements for supervision and the circumstances and extent of any time.  However in saying that, I should make it plain that so long as the father remains an unacceptable risk of harm to the children, by seeking to undermine their relationship with the mother or otherwise alienating them, in my view the prospects of him succeeding in lifting the strict requirement of supervision are slight.  However that will depend upon the view of the judicial officer who ultimately determines the matter.  That need not be me.

8. There will therefore be orders that the father neither spend time nor communicate with the children for two months, and that at the expiration of 12 months’ time, he have liberty to apply to seek to remove the requirement of supervision, and otherwise review the extent of, and the circumstances in which he spends, his time with the children.

9. The Independent Children's Lawyer should remain for a period of 18 months to cover the eventuality that the father brings such an application, and in the event that the father does so, only be discharged by further order of the court.

10. I should return to the question of the prospect of the father running into the children in G Town.  Whilst I am satisfied that the father should be restrained from spending time with the children at their school, it does not seem to me that there is any practical means by which orders can be crafted so as to restrain the father from accidently coming into contact with the children in G Town.  It would be quite potentially upsetting for the children if the father were required to ignore them in the town should they chance upon him, and probably impossible to enforce on the day in any event.  I am therefore unpersuaded there should be any other further restraint upon the father, other than restraining him from coming into contact with the children at their school.

OTHER ORDERS

1. Otherwise I am satisfied that there should be orders in terms substantially as proposed by the Independent Children's Lawyer, and mother, and will make them.

2. To facilitate the father being able to seek the appropriate psychological assistance as contemplated by Mr E, I am persuaded that he should have leave to publish to any therapist engaged by him from time to time, these reasons together with both the Family Reports of Mr E and will so order.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 May 2018.

Associate:

Date: 10 May 2018