Simons & Anor and Simons & Ors

[2015] FamCA 9

FAMILY COURT OF AUSTRALIA

SIMONS AND ANOR & SIMONS AND ORS [2015] FamCA 9

FAMILY LAW – CHILDREN – Grandparents and aunt apply for contact where their daughter and sister (the wife) is in prison – Contact refused as being contrary to the children’s interests.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Aldridge & Keaton (2009) FLC 93-421

APPLICANT WIFE: Ms Simons

2^ND APPLICANT: Ms M Simons

RESPONDENT HUSBAND: Mr Simons

2^ND RESPONDENT MATERNAL

GRANDPARENTS:

Ms C Sanna and Mr E Sanna

3RD RESPONDENT MATERNAL AUNT:	Ms F Sanna
INTERVENER:	Department Of Human Services
INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2476 of 2010

DATE DELIVERED: 16 January 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7, 8 January 2015

REPRESENTATION

THE APPLICANT WIFE: Mr Duncan (Excused)

COUNSEL FOR THE RESPONDENT: Ms Paull

SOLICITOR FOR THE RESPONDENT: Esser Legal

THE 2^ND RESPONDENT MATERNAL GRANDPARENTS: In Person

THE INTERVENOR: Department Of Human Services

COUNSEL FOR THE INTERVENOR: Ms Buchanan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McCreadie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bowlen Dunstan & Associates Pty

Orders

1. That the children D and B born … 2008 live with the husband.

2. That the husband have sole parental responsibility for the said children.

3. That the husband has leave to remove the children from the Commonwealth of Australia to travel internationally without consultation or notice to the wife and to apply to renew passports for the children (or either of them) without the consent of the wife.

4. That the wife MS SIMONS, the maternal grandfather MR E SANNA, the maternal grandmother MS C SANNA and the maternal aunt MS F SANNA and the child MS M SIMONS are restrained by injunction from:

   (a)       Attending at any school at which the children attend;

   (b)Attending any extra-curricular activities of the children without an express invitation written by the husband; or

   (c)From spending any time with or communicating with either of the said children without the written permission of the husband.

5. Save as to issues of costs, all extant applications are otherwise dismissed.

6. That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 16 February 2015 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 2 March 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

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

8. That a copy of this order and the reasons for judgment this day be made available to Family Consultant Mr A.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2476 of 2010

Ms Simons

Applicant Wife

And

Ms M Simons

2^nd Applicant

And

Mr Simons

Respondent Husband

And

Ms C Sanna and Mr E Sanna

2^nd Respondents Maternal Grandparents

And

Ms F Sanna

3^rd Respondent Maternal Aunt

And

Department Of Human Services

Intervener

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The maternal grandparents and the aunt of D and B (aged 6) seek the opportunity to spend time with them.  That application is opposed by Mr Simons (to whom I shall refer in these reasons as “the husband”), as well as the Independent Children’s Lawyer appointed by the Court and the Department of Human Services who have intervened.  Their united position is that there should be no contact.

2. For the reasons that will hopefully become clear, this case was limited to the one issue.  Although during the gestation of the litigation, residence issues were anticipated, no other parenting orders were ultimately pursued by any party other than the contact orders.

The framework

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the various provisions to which the Court must turn in deciding the issue. Section 60B(1)(b) sets out as an object of the Act that the Court is to ensure that the best interests of children are met by protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. That becomes relevant when contemplating orders to protect the children from psychological harm.

2. Section 60B(2)(b) provides that the principles underlying the objects in s 60B include, amongst other rights, that children have a right to spend time on a regular basis with and communicate on a regular basis with people significant to their care, welfare and development. So important a role did the legislature consider people such as the applicants have in the lives of children that it specifically included the words “such as grandparents and other relatives” as part of the principles underlying the objects of the Act.

3. Section 60B(2)(e) also provides that children have a right to enjoy their culture including the right to enjoy the culture of other people who share that culture. There was no evidence led in respect of that issue here but there is an unmistakable Country Z heritage for these children of which the grandparents and their maternal aunt are a very significant part. In this case however, absent any evidence, I see no reason why I should not accept that the husband would not fulfil the role of involving them in their historical culture. He too has a Country Z background.

4. Section 61C(1) provides that each of the parents of a child who is not 18 years of age has parental responsibility for that child and that means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.  In this case, all of those matters fall to the husband by virtue of the orders that I made on 5 February 2013 paragraphs 1, 2 and 3 of which read:

   1.That the husband have sole parental responsibility for [D] and [B] … born … 2008.

   2.That the children live with the husband.

   3.That the children have leave to travel internationally with the husband without consultation or notice to the wife.

5. Section 65C sets out who may make an application for a parenting order and again, the legislature has specifically referred to grandparents. 

6. Although it was not a matter of submission or argument, it is important to understand (particularly for the grandparents) that the focus of the Court’s attention is on what is in the best interests of the children. When determining the best interests, the Act does distinguish between parents and those who are not (see s 60CC) and I shall deal with that below. However, there is no presumption that because the applicants are not the parents, their arguments should be somehow seen as having less weight than those of the husband or that their role in the lives of the children has less significance; that is, there is no “hierarchy” of applicants (see Aldridge & Keaton (2009) FLC 93-421 at 83,819-83,826).

7. In Aldridge, the Full Court referred to the Explanatory Memorandum to the amendments to the Act. That is, the explanation given to the Parliament when the legislation was considered. The Full Court noted as an example, the place of non-parents in the consideration by the Court of s 60CC(3)(b). What the Memorandum said was:

   New paragraph 60CC(3)(b) replaces existing paragraph 68F(2)(b) with a modification. Existing paragraph 68F(2)(b) provides that where the court is determining the best interests of the child, it must consider the nature of the relationship with each of the child’s parents and with other persons. This provision has been modified to include an explicit reference to grandparents or other relatives of the child. This change further ensures that the court recognises the importance of the relationships that the child has with their wider family, in particular grandparents.  (emphasis is mine)

8. As to the approach that a Court should take to determine an application for parenting orders such as that brought by the grandparents and the aunt, the Full Court said:

   a two step approach is appropriate in dealing with an application for parenting orders brought by a person other than a parent, a child, or a grandparent. In other words is the applicant a person concerned with the care, welfare or development of the child (step 1) and if so, what order should be made in the best interests of the child. This consideration may lead to an order for parental responsibility, an order a child live with, spend time and or communicate with the person, or that no such order be made (step 2).

9. To the extent that it is necessary therefore to say so, I am satisfied that the applicants are concerned about the care, welfare and development of the children but for the reasons set out, this is a case where no order for time or communication should be made.

10. When the Court is faced with a factual determination based upon conflicting versions of events as well as conflicting views about what should happen in the future, the Court applies the provisions of s 140 of the Evidence Act 1995 (Cth). That particular provision requires the Court to find a party’s case “proved” if it is satisfied on the balance of probabilities. The Court is obliged to take into account the nature of the proceedings and its subject matter as well as the gravity of what is alleged. Here, there are conflicting views about what happened between the parents as well as the nature of the relationship between not only all of the parties but also as between the maternal family and the children. Determining those disputes will be done in these reasons on the basis of what probably happened and what will probably happen. In determining that, I will take into account that this is a parenting matter where the importance of the balance of probabilities lies in the fact that such determinations will affect the lives of the children and as a result, any outcome must be in their best interests. Accordingly, I have taken into account the gravity of the outcome for the children by any such determination. The facts such as those relating to what the wife did and how that has been viewed by her parents and sister are highly contentious but because of the objective evidence from sources to which I shall refer, I am able to find what probably did happen. That finding significantly affects the children’s future relationship with the maternal family so I have then taken a very cautious approach about being satisfied on the balance of probabilities in respect of the future for the children in having any relationship with the maternal family.

11. As to the type of parenting orders this Court can make, relevantly, s 64B(2) sets out the matters that a parenting order may deal with.  Included are the time that a child is to spend with another person or persons and the communication that the child is to have with another person or persons.  It is interesting to note that at the foot of s 64B(2) the following words appear:

    The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

    There can be little doubt therefore that the applicants for the orders have been contemplated by the legislature as having a significant role to play if other parts of the legislation are fulfilled.

12. Initially, there was an issue about the grandparents and the aunt providing the children with presents, cards and letters if there was to be an order for no face to face communication.  That was the opening position of the husband, the Independent Children’s Lawyer and the Department of Human Services.  Section 64B(4) provides for that the sort of communication. 

13. Section 65D sets out that in proceedings for a parenting order, the Court may (subject to certain issues to which I shall turn) make such parenting order as it thinks proper.  “Proper” is not defined. 

14. Section 61DA(1) directs the Court’s attention to the fact that when making a parenting order, 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.  The unusual feature here is that no application was pursued about parental responsibility nor was any order ultimately sought by the children’s mother.  Again, I refer back to the orders that were made in 2013.  It is important however to deal with the provision because of the wording of s 61DA(1).  For reasons that are set out below, it is not in the best interests of the children that their parents have equal shared parental responsibility.  Section 61DA(4) provides:

    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. 

    The children’s mother does not seek involvement in their lives and there is not only no communication between the mother and the husband but also between the children and their mother.  The presumption must therefore be rebutted.

15. Section 60CA provides that in deciding whether to make a particular parenting order of the type described earlier, the Court must regard the best interests of the child as the paramount consideration. Whilst that means that it is clearly not the only consideration, when the Court has to contemplate the involvement of grandparents and extended family, ultimately, it is to the best interests of the children that the Court must turn as the paramount consideration. In turn, s 60CC of the Act provides the matters that must be specifically considered by the Court when it is working out what is in a child’s best interests. I turn to those matters at the end of these reasons.

The best interest principles

1. This dispute is about the involvement of the extended family of these children in their lives.  Because of the legislative pathway, for the Court to deny the children the opportunity to enjoy the benefits of knowing, loving and being cared for by their grandparents in particular, but also by their aunt, there must be evidence to show not only that it is not in their best interests but also that it is not proper to make the order.  This is such a case.  I am so satisfied on the balance of probabilities.

2. To understand how that balancing of competing interests produces such an outcome, it is sadly necessary to traverse the relationship of the husband and Ms Simons the children’s mother (to whom I shall refer to in these reasons as “the wife”) and how all of that came to a violent end. 

The facts

1. The husband is aged 49 years and the wife 48 years. 

2. In 1994, the husband and wife married and in 1996, their first child Ms M Simons was born.  There was to be a gap of 12 years before the birth of the children the subject of these proceedings. 

3. Somewhere around 2006, the wife met up with a man with whom she was acquainted in her earlier years.  Their relationship was rekindled and it became intimate sometime in 2009.

4. In 2010 the husband and wife and some friends attended a restaurant.  After they left the restaurant the husband was attacked by the wife’s boyfriend.  But for the immediate attendance of two off-duty medical professionals, it seems the husband would have died.  The husband was rushed to hospital where he survived.

5. What followed in an historical sense is not relevant to these proceedings because ultimately, the wife and her boyfriend were independently and separately charged with offences.  The boyfriend pleaded guilty to a serious assault and was given a reduced sentence on the basis of his willingness to give evidence for the Crown.  Notwithstanding that the wife had made a confession to police about her involvement, she pleaded not guilty before a jury and over a series of weeks, her trial proceeded.  It culminated in the jury finding her guilty. 

6. Curtain J in the Supreme Court of Victoria sentenced the wife to 12 years imprisonment requiring that a period of nine years be served before eligibility for parole.  Her Honour’s sentencing remarks were attached to the affidavit of the husband and they make chilling reading.

7. The significance of these facts lies in the position of the grandparents.  Throughout the proceedings before this Court, they have, albeit unrepresented by lawyers, articulated that the husband “set up” the wife by an arrangement with the boyfriend who they said was to have been paid so that he could divorce (if not get his wife to go to prison) and end up living with his now adult daughter Ms M Simons in some sort of sexual relationship.  Bearing in mind the conviction delivered by the jury and the clear remarks of Curtain J in the sentencing of the wife, it is hard to adopt any other position in relation to the grandparents than that they are bitter and have an intense dislike for the husband.  They produced no evidence to form the foundation of what is a serious allegation, albeit inconsistent with the finding of the jury.  Importantly, it must be noted that none of these allegations appear to have been put to the husband during the wife’s criminal trial nor indeed that of the boyfriend but if they were, no such evidence was led before me of them having been so raised. 

Ms M Simons

1. I have made reference to the allegation by the grandparents that the husband wanted to get rid of the wife for the purposes of having a relationship with his daughter.  That needs exploration.

2. Ms M Simons is now an adult.  The Department of Human Services became involved with her at a time after the wife was charged by the police with the crime against the husband.  Ms M Simons was living with her maternal aunt who is an applicant for orders in these proceedings.  The twins were then having supervised time with the wife.

3. In February 2010, Ms M Simons accused her father of having sexually abused her.  That accusation was made in a statement to the police and the Department acted upon that information.  The police however did not charge the husband in relation to any of the allegations and the Department indicated it could not substantiate that the sexual abuse had occurred.  On the contrary, the Department had serious concerns for the emotional and psychological wellbeing of all of the children. 

4. The Department of Human Services was of the view (and remains so) that Ms M Simons was and is a highly vulnerable individual who is subject to the influence of her maternal family.  Ms M Simons has had problems with suicidal ideation and made other allegations against the husband.  One of those allegations was that upon what I am satisfied was an accidental contact, Ms M Simons said that her father told her he would kill her and made a sign with his hand across his neck.  The Department viewed the CCT footage of that incident and has indicated no such statement or threat occurred.  Ms M Somons’ evidence therefore (if given) would have to be questionable.

5. More significantly in relation to Ms M Simons, as a result of the sexual abuse allegations made in February 2010, there was a protracted Children’s Court proceedings because she was under the age of 18 years.  The evidence is that over a hearing which took 16 days, the learned magistrate accepted that of the two grounds for the Department’s protection application regarding her (sexual abuse being one and emotional abuse being the other) the Department’s view that there was no evidence to support the former and it should be withdrawn but there was sufficient evidence to find the application proved in respect of the latter.  Although it was not significant in the proceedings before me, it is important to note that Ms M Simons’ allegation against the husband also included an allegation that he had sexually abused D.  The magistrate must have accepted there was no foundation for that to permit the Department to withdraw that ground.

1. When these proceedings first commenced in 2014, Ms M Simons was having supervised time with her siblings.  On becoming 18 years of age, she intervened as an applicant in her own right and sought orders.  She supported her grandparents’ written position (but ultimately that was not their position at trial) that the twins should live with the grandparents.  Represented by lawyers, Ms M Simons appeared at directions hearings throughout 2014 in anticipation of the trial to commence in January 2015.  Only days prior to the trial commencing, her lawyers ceased acting and Ms M Simons filed a Notice of Discontinuance.  She did not attend at the hearing.

2. It is also important that I record that Ms M Simons provided the Notice of Discontinuance but also an application to attend by electronic means with a covering letter addressed to me.  I indicated at the time that it was not appropriate that such a letter be written in circumstances where it was not copied into other parties where she was a party herself.  No notice was apparently given to the other parties of Ms M Simons’ intentions.  It seems from the correspondence that she took the view that she should give evidence remotely but if that was not permissible, she would discontinue the proceedings.  The discontinuance notice had at that point, been filed, and I have taken the view that Ms M Simons could not have it both ways.  At all times, she knew that the issue was controversial but remarkably, her time with the children was never seriously in dispute providing it was to be supervised.  With the discontinuance notice having been filed, along with her absence, I took the view and still hold that view, that it is not necessary for the Court to consider her position and she can make whatever arrangements she so desires in the future.  I say that in the knowledge that the husband, Department and Independent Children’s Lawyer all seek injunctive relief to preclude Ms M Simons spending time with her siblings.  That will not prevent her bringing a proper application in the future if she so desires.

3. To the extent that Ms M Simons would have desired to have given evidence remotely, little in her affidavit which was filed in July 2014 and obviously read for the purposes of the final trial well beforehand, added much to the case.  There was even a dispute between counsel for the Department of Human Services and the extended maternal family as to where she was living.  The affidavit filed on 24 July 2014 was prepared by the same solicitor who filed the Notice of Ceasing to Act shortly prior to the Notice of Discontinuance.

4. Ms M Simons’ absence from the proceedings both as a party and a witness was also significant in circumstances where the maternal grandfather reiterated his view that the husband had sexually abused Ms M Simons.  He gave evidence about matters that had never been raised before in any other proceedings.  The allegations of the grandfather and indeed the grandmother therefore, can only have come from what they were told by Ms M Simons.  Time between Ms M Simons and her siblings on an unsupervised basis was opposed by the Department and the Independent Children’s Lawyer.

The wife

1. Returning then to the wife’s position.  Curtain J in the sentencing remarks noted a number of matters about the nature of the wife’s relationship with her boyfriend.  They had purchased specified assets together.  Her Honour noted that in the remand section of prison, the wife had written to the boyfriend whom she knew at that stage had been charged with the crime against the husband and professed her love for him for all eternity.  Having regard to the sentencing remarks of Curtain J and the finding of the jury, the protestations of the grandparents that their daughter remains unjustly convicted and is an innocent person, have no merit.

2. I have already mentioned the orders of February 2013.  It is important to observe that the wife was represented by a solicitor at that hearing so she could not be said to have been denied natural justice and to the extent she did not agree with the orders, she did not appeal against them.  She subsequently filed an application seeking parenting orders and her affidavit of evidence in chief was filed by her lawyers on 18 July 2014.  In addition to the affidavit, she filed an application in which she sought orders that the children live with her parents.  In the alternative, she sought that the children live with her sister.  That obviously conflicted with the grandparents’ position when the trial began because they did not seek that the children live with them but rather that they have the opportunity to spend time together.  Immediately prior to the commencement of the final hearing, the wife changed solicitors.  Mr Duncan, the solicitor who had immediately prior to the commencement of the hearing obtained instructions from the wife, requested an opportunity to get firm instructions and ultimately, indicated that if the husband agreed to an order that he be restrained from living overseas permanently without leave of the Court, the wife would not pursue any of the other parenting orders that she sought.  Indeed, Mr Duncan quite appropriately described the application as otherwise abandoned.  As the husband consented to that order, the wife asked for her solicitor to be excused and for her connection by video link from the prison be terminated.  She took no further part in the proceedings and it was not suggested that she would be called as a witness by any of the parties.

3. The Court was therefore left with the evidence of the grandparents, the aunt and the other parties.  The Independent Children’s Lawyer relied upon the evidence of the family consultant Mr A.  The Department of Human Services relied upon its case worker Ms G.

4. Because the application for orders had changed radically as a result of the last minute changes, I directed that the grandparents and aunt be the applicants and the other parties respond.

The grandmother

1. The grandmother gave evidence first.  She was assisted by an interpreter.  She had filed on her own behalf, an affidavit in July 2014.  When I pressed her for some indication as to what was her evidence, she acknowledged that the document had been signed but she knew nothing about it.  It was distinctly noticeable that it bore no interpreter clause on the jurat.  Having questioned her a number of times about what the matter was all about from what was in the affidavit, I ruled that she was not to be permitted to use it as her evidence.  I then asked her why it was that she should be permitted to have contact with the children bearing in mind she had not seen them for a number of years.

2. The grandmother’s evidence was that she had raised these children and looked after them but she conceded that she had not seen them for five years.  That being so, the children were under two years of age when they last saw their grandmother.  She indicated that she thought that they would remember her and especially B.  I reject that.  Mr A to whose evidence I shall turn in a moment, indicated that it was most unlikely that the children had any real recollection because when he pressed them in that area, they gave no signs of recognition. 

3. The grandmother was cross-examined.  Her position was unequivocal.  She believed her daughter was innocent and was wrongly imprisoned.  She thought that the husband and the boyfriend had organised for her daughter to be placed in gaol and she would do anything to help her get out of that predicament.  She believed emphatically that the husband sexually abused Ms M Simons.  She knew very little about the nature of the relationship between the husband and the children.  In relation to what she would do about her views if there was contact ordered, she said she would simply avoid any controversial issue by pretending that she had not heard a question put by the children about what had happened to their mother and father.

4. It is very sad to see a grandmother so entrenched in a position such as this.  She clearly believes her granddaughter Ms M Simons.  She clearly believes her daughter, the wife.  None of the objective evidence in the form of the sentencing remarks of Curtain J nor of the Children’s Court supports her view.  It must also be taken into account that notwithstanding she pleaded not guilty, the wife confessed to the whole affair including the conspiracy against the husband.

5. I find that I could have no confidence that the grandmother would simply ignore a question by the children.  It is one thing to be question-avoidant but it is another to be positive in supporting one’s views.  The grandmother was vocal about the husband having done wrong in the face of overwhelming evidence to the contrary.  The grandmother’s family is united in their views and they will tell anyone who will listen.  They told the family consultant their views.  They had ample time to reflect on their views as a result of what was also the publicly expressed views of the Victorian Court of Appeal.  They are implacable in their belief.  To say that the grandmother would not mention this to the children is implausible because they believe their daughter has been wronged, the husband is a criminal and the children have a right to be a part of the maternal family.  In this case, I am quite satisfied that the grandmother would have little hesitation in telling the children that their mother is innocent and that their father is a sexual predator.

The grandfather’s evidence

1. In respect of an affidavit filed by the grandfather, it had the same problems as that of the grandmother.  I could have no confidence that the grandfather understood what affidavit document he was looking at and he had no recollection of signing it.  Even if I allowed the evidence to be so led by him, it advanced the case no further.  I rejected the possibility of him being allowed to rely upon it and asked him why I should allow him to have time with his grandchildren.  He said he was 77 years of age and his health was not good.  He said the reason why an order should be made was because he loved the children and his wife had raised them at their daughter’s house.  Even on the subject as simple as that, the evidence was controversial.  Whilst the “daughter’s house” was the description he gave, it seems that he lent the husband money and complained that he did not get it back.  Just who owned the house remained obscure.  He complained bitterly that he had been “kicked out” of the house and as a consequence, had lost the children.  He joined with his wife in indicating that his daughter was innocent and that her imprisonment had been orchestrated by other people whom he named as the husband and the boyfriend.  When asked whether he was aware that his daughter had confessed to the police, his answer was that she was “crazy” at that time.  To the extent that this was a reference to the wife being mentally unwell, the comment has no foundation and no merit.  The wife’s mental health was a serious issue in her criminal trial and one of her grounds of appeal ultimately rejected by the Victorian Court of Appeal.  His explanation for the specific event on the night of the crime was that the killer would probably have killed his daughter as well had others not intervened.  That view has also no merit.

2. The grandfather was a loquacious witness.  The interpreter did a valiant job in articulating what he said but much of it was a plea for his own position rather than anything of assistance to the Court in relation to what was good for these children.  Just what he would have to offer the children remained obscure.

3. The grandfather was questioned about a number of his own prior brushes with the law.  It was suggested to him that he had convictions for indecent assault in 1993, earlier convictions for handling stolen goods in 1977 and was fined for theft in 1987.  All of those he denied.  In relation to the indecent assault in 1993, he said he did not do anything but that it was “just a woman who sued him” and she told lies.  These matters were all put to the grandfather in cross-examination obviously as to credit.  No other evidence was produced by way of formal record to show that the denied convictions were indeed correct.  I would not normally take those into account but they were referred to by the witness from the Department of Human Services who said inquiries had been made from police and these results were produced.  It is conceivable that there is an error in the name, birthday or recording system but the maternal family had months to consider that evidence and did not rebut it.  It was raised again by the family consultant and they did nothing about it. 

4. The grandfather was also asked about conviction for the possession of a firearm and whilst he seemed to deny the allegations, he confirmed that there had been a gun incident but that he had had an appropriate licence.  His explanation was that it was just used for scaring birds.  That ignores the breach of the law confirmed by the conviction.

5. The grandfather had been on notice from early in 2014 of the allegations.  He made no effort to produce the records.  He knew at all times that the Department of Human Services had investigated his criminal background and the evidence was before the Court.  I find that he was so convicted.  It makes little difference to the determination that I have to make here.  I find that the grandfather is so obsessed with the innocence of his daughter and the allegations that the husband sexually abused Ms M Simons, that I could have no confidence he would not try to influence the children.

6. Whilst the finding just made could lead a court to contemplate some form of restricted time, the more important issue seems to be that the children do not know their grandparents at all (see Mr A’s evidence below).  These children were less than two years of age when there was last contact.  I have no concept of what benefit the children would receive from having a relationship with the grandparents in circumstances where the relationship between the husband and his former parents-in-law is so bad.

The evidence of Mr A

1. It is not necessary that I deal with all of the matters that Mr A raised all of which were largely unchallenged.  But it is important that I raise two matters at this time. 

2. The first issue relates to the inquiries of the children by Mr A as to the nature of the relationship they had with the maternal extended family.  He indicated that he saw no sign of any recognition or understanding.  When he asked the children about their mother, they replied that she was in gaol for having broken their father’s leg.  Whilst that may sound like a curious answer, I find it is consistent with the husband’s position of having kept the children away from a lot of this conflict.  The children do not appear to have been manipulated.

3. It must also be remembered during the period of the last twelve months or more that the children have been having contact under supervision with Ms M Simons.  Whilst, as counsel for the Department of Human Services pointed out, this time was all supervised by a department representative, it must also be concluded that the children have not sufficient understanding about their mother to even query where Ms M Simons fitted into the picture or who else might be in Ms M Simons’ life.

4. Mr A made a clear recommendation that it was not in the best interests of the children that they have contact with their paternal grandparents having regard to the embittered position those people hold.  Because of my earlier findings about the grandparents, I agree.  He did however initially recommend that the grandparents be given the opportunity to send cards, letters and presents.  Fortuitously, Mr A was sitting in the back of the court during the cross-examination of the grandparents.  He indicated that having heard that evidence, he wanted to rethink his position.  He indicated in response to a question I asked that sending communications would be confusing for the children if they did not know of the existence of the grandparents.  I agree.

5. Thus, even indirect communication for these children at the age of six is problematical.

The evidence of the aunt

1. Ms F Sanna is the wife’s sister.  She described herself as retired.  She relied upon an affidavit that she prepared and filed on 27 August 2014.

2. Ms F Sanna’s evidence was very short.  She began by requesting that her sister be granted visitation with the children through the prison system but as that was no longer the wife’s application, it was of no relevance.  She then added that she felt that both the wife and the children had a right to establish a loving relationship with one another during the wife’s imprisonment.  Again, having regard to the nature of the wife’s position, that is of no significance.

3. The aunt supported her parents’ position but wanted the time of Ms M Simons so that the family could be together.  Her position had been to include the wife as having contact.

4. In respect of her own situation, she described herself as having been employed in the education field and that she felt she had a lot to offer the children in their educational and personal development.  She said she had been involved in their lives since the day they were born.  I again note that any such time must be seen to have been limited and, as was evident from the evidence of Mr A, the children had no recollection of that period of time.  There was otherwise no evidence from Ms F Sanna that would enable me to get a sense of how any time between she, let alone the extended maternal family, could be implemented.  She made clear that like her parents, she believed her sister to be innocent and she disputed that she or her family members would influence the children in any way.  She confirmed that Ms M Simons was no longer suicidal although she conceded that Ms M Simons’ self-mutilation had occurred in the extended family’s care.

5. Ms F Sanna was asked about her father’s hypothesis that the husband had conspired with the boyfriend to ensure that the wife was gaoled so that he could have a relationship with Ms M Simons.  Ms F Sanna distanced herself in cross-examination from that position and in final address, commented that people said things that they did not really mean and that everyone had been traumatised.

6. It was put to Ms F Sanna that she had been the complainant to the Director of Public Prosecutions about a refusal to charge the husband with sexual abuse offences relating to Ms M Simons and she thought that that was not the case.  The correspondence attached to the file of the Department of Human Services suggested otherwise but in my view, it does not matter here.

7. Thus, I have no evidence as to how any relationship between the aunt and the two children who do not know her, could be implemented.  I am satisfied the aunt is polarized.

8. In final address, I asked Ms F Sanna how I could distinguish between the family members bearing in mind they all seemed to have similar views about the wife, the sexual abuse of Ms M Simons and the poor view of the husband.  She responded by shrugging her shoulders and confirmed that it would be difficult for me.  I asked her if I took the view that her father had no insight into the problems that these children would face exposed to the sorts of allegations that he was making, what I should do and again, she had no real response.

9. It is important therefore to observe that much of the evidence of the aunt and the grandparents was really about their wishes to satisfy in particular, their needs, rather than what was good for the children.  It is simply not sufficient to say that they had had a good relationship up until the time of the tragedy involving the wife.  These children were entirely different then to what they are now.  That can be seen from the evidence of Mr A.  The absence of the maternal family from the lives of the children for the majority of their lives, makes the reintegration of the maternal family, very difficult.  When no proposals were put as to how any of these suggestions would work and where the disdain for the husband was palpable, I could not distinguish between any of the adults involved.

1. Accordingly, the evidence of the grandparents and the aunt was largely unhelpful.

The husband’s evidence

1. The husband relied upon an affidavit filed on 20 August 2014.  Thus, the maternal family members had access to that affidavit material for many weeks.  Much of the affidavit although purportedly drawn by a solicitor, was a stream of consciousness.  It contained comment and opinion.  Be that as it may, it relayed the history that I have already outlined.

2. The husband noted that the wife had not written to the children or given them anything in the last four years since her imprisonment.  He said the same about his daughter Ms M Simons over the last two years.  He pointed to the fact that I had made final orders in 2013.

3. The husband then set out that the allegations that had been made against him were false.  He observed that there had been a media report involving a woman who had been a cellmate of the wife along with his daughter Ms M Simons.  The appropriateness of that report is not a matter about which this Court needs to comment.  Its purpose seemed to have been to suggest that the wife had done nothing wrong and had been victimised in some way.  As I have set out elsewhere in these reasons, there can be no justification for any such assertion having regard to the findings of the jury and the comments of the Victorian Court of Appeal.

4. The husband referred to the fact that the grandfather had convictions and was consequently inappropriate around children.  In my view, the grandfather’s character is of little assistance in this case.  What is relevant is the grandfather’s obsession with the position that he articulated such that I have little confidence he would not try to manipulate the children in some way and confuse them unnecessarily.  I am satisfied that the children are settled, based on the evidence of the husband and they do not deserve to have their structured routine altered. 

5. The husband gave unchallenged evidence that he had worked hard with professionals to re-establish the children’s lives and that they had done well in their academic journeys.  He pointed to the fact that they were playing sport and undertaking relevant activities in music and arts.  He observed that he had re-partnered and there was a good relationship between the children and his new partner.  That relationship was extended to his partner’s family as well.  None of that evidence was challenged by the maternal family members.  It is also supported by the observations of the family consultant.

6. The husband was required by the maternal family members for cross-examination.  He was asked what he thought of them.  He described them as despicable.  He said he had heard some terrible things about him on the previous day of this hearing and it was all untrue.

7. The husband was plaintively asked by each of the family members why he refused to allow time between them and the children.  His answer was simple.  He said that after professional advice and all of the evidence that he had heard, he did not consider that it was in the best interests of the children.  In my view, there is little more that he can say.  The matters about whether contact should take place are those for the Court to decide.  In my view, the maternal family gave little indication of what they had to offer these children.  I have previously referred to the evidence of Mr A and I shall return to that and that of Ms G from the Department of Human Services below but on any view, their professional advice supports the position of the husband.

8. Mr A raised some concerns about the husband’s views and it was evident from the hearing that he was at times agitated and at others, distressed.  As none of the evidence I heard supports a conclusion that he has done anything wrong, there is nothing that I can criticise him about as an individual.  The concerns raised by Mr A were of a minor nature.  The best evidence to support a positive finding about the husband was that the children had nothing critical to say about anyone.  They have lived their lives apparently oblivious to most of the problems that have gone on around them.  Whilst there was a clear criticism by the maternal aunt that the children made reference to their mother being in gaol, I am quite satisfied that nothing can be made of that bearing in mind the developmental ages of the children and their lack of understanding of what it was all about.

9. I shall return to the s 60CC factors required of me below but there is nothing that I heard or could find that would make me doubt the husband’s evidence and indeed, nothing upon which I could reject it. I find the evidence of the husband to be plausible. He was restrained in the witness box and in my view, gave honest answers.

The evidence of the Department of Human Services

1. The Department of Human Services principal practitioner is Ms G.  She is one of the divisional principal practitioners for the Department of Human Services and she holds the degrees of Master of Clinical Family Therapy, Master of Psychology, Graduate Diploma in Applied Child Psychology and she has been a registered psychologist since 1998.  She is a member of the Therapeutic Treatment Board and has been so since 2009.  Her employment history is impressive commencing from 1990 to date.  No-one required Ms G for cross-examination.

2. The evidence of Ms G regurgitated the position of the Department of Human Services that the maternal family should not have any time in the lives of B and D.  Ms G set out the various reports that had been given to the Children’s Court and she said that in respect of the allegation against the husband of sexual impropriety, the learned magistrate had made a finding that the father had not sexually abused his daughters.  After discussion with counsel for the Department, it was conceded that that was not correct.  At its highest, there seemed to be agreement that the Department did not proceed with its protection application in the Children’s Court based upon a risk of sexual abuse for Ms M Simons but rather a risk for emotional harm.  On any view, the grandparents were a party to the Children’s Court proceedings and were therefore present when the Department indicated that it was not pressing for a finding that Ms M Simons and D were at risk of sexual abuse based on conduct of the husband.  It is also clear that the police took the view that no prosecution could succeed against the husband.  The aunt took the issue up with the Office of Public Prosecutions who indicated no interest.  Whilst that might be understandable in relation to evidentiary matters concerning D, I am conscious of the fact that at that time, Ms M Simons was a teenager.  She would have been capable of giving evidence having regard to her age and the nature of the allegations that she was making.  However, for reasons that are not clear, both the Department and the police took the view that there was no basis for a prosecution.  As I have indicated, the Director of Public Prosecutions was requested to review the decision that there be no criminal prosecution and Ms G produced a letter dated 18 May 2011 which reads as follows:

   The Director has completed his review of the matter, and is of the view that there is no reasonable prospect of conviction.  Accordingly, there is no basis for the Director to recommend that criminal proceedings be instituted.  Ms [F Sanna] (the aunt) and Ms [Simons] (the wife) have been notified in writing of this decision.

3. Ms G also said that she had read the report of Mr A and she supported his recommendations.

4. Ms G then said that the Department had no protective concerns about the husband but was very conscious of the considerable animosity between the families.  She said that Ms M Simons was aligned with the maternal family and estranged and terrified of her father.  She added however in respect of that:

   This reflects the maternal family’s attitude to (the husband).  [Ms M Simons] has made a number of allegations against her father, all of which have been unsubstantiated.  I am concerned that if the time spent with [B] and [D] is not supervised that [Ms M Simons] may advocate against their father with whom they have a loving, secure and stable relationship.  That is likely to occur if [Ms M Simons] continues to be influenced by the maternal family and is unable to separate her own issues from those of her mother and maternal family.

5. Ms G went on to confirm Ms M Simons’ admission to a psychiatric unit.  Ms G then said that she was concerned that the wife was persisting with the claim that Ms M Simons was sexually abused by her father notwithstanding the Children’s Court and police rejection of the allegation.  Ms G then said:

   I do not support the maternal family’s applications for the twins to be removed from their father.  They are well settled in his care.  There is no reason to marginalise his role in their lives.  Moreover, the maternal grandparents and maternal aunt have not seen the twins for four years.

   Ms G said that she did not support any time between the children and that family.  As I observed, that evidence was not challenged.

Mr A (again)

1. I have already dealt with the evidence of Mr A in a number of ways.  He made a number of observations about each of the parties whom he interviewed.  He was criticised both directly and indirectly for the amount of time that he spent with each of the parties and how he could possibly have come to understand the dynamics bearing in mind that time.  He said that he understood the criticism but he had to factor in the time and resources of the Court.  I am not convinced that he did not do an accurate job.  I too had the opportunity to observe each of the parties and nothing that Mr A saw, heard or indeed said, was inconsistent with my observations of the relevant parties.

2. It is important that I return to the opinion of Mr A.  Notwithstanding what I have just said, it was clear at least from the aunt’s perspective that she challenged his expertise to make the opinions that he did.  For example, she asked him whether he had an answer as to how the children should be told of the trauma that had occurred and he indicated that he had no simple answer.  He prefaced that by saying that he was not the parent of the children.  There is much sense in that.  Each parent would have to make a determination as to how to answer a child’s question depending upon the timing, the nature of the question and the development of the child.  It is clear from my reading of the evidence and by questioning of Mr A that he was impressed that these children have not been embroiled in the dispute notwithstanding the current loss of their mother and their maternal family.

3. As Mr A said:

   All the parties to this dispute appear locked in a never ending battle fuelled by their fixed and rigid beliefs, which have over the years been reinforced by real or imagined acts further cementing their stance and further fuelling the fire.

   I agree entirely but having now heard all of the evidence, I am satisfied that objectively there is no foundation for the allegations promulgated and perpetuated by the maternal family.  The grandfather’s position about the husband was unrealistic and in my view, fanciful.  The grandmother’s view was based entirely upon what she said Ms M Simons told her about sexual abuse but the aunt also indicated that there was an observation made by the grandmother outside of that but it was not led in evidence.  There is no foundation for me to make any criticism about the husband’s conduct with Ms M Simons.  Ms M Simons has not given evidence in these proceedings. To the extent that it is necessary to say so, in preliminary hearings leading up to the trial, I raised with counsel then appearing for Ms M Simons whether she understood that having made the allegations, she would possibly be facing cross-examination about them.  Counsel at that time said Ms M Simons did not want to continue to make the allegations.  In the end, Ms M Simons did not participate.

4. Mr A gave very clear and cogent evidence about how the children are coping.  There is no reason for me to doubt that his observations were accurate.  I accept his evidence.  In relation to his opinion, Mr A said that the families were so dysfunctional and polarised that there was no capacity for any meaningful dialogue or trust between the adults.  That observation was made in May 2014 and some nine months later at the hearing, the position was even more entrenched.  So bad was the view of the grandfather relating to the husband that he wanted to expand on the allegations in the witness box that had clearly not been referred to in any previous material either in affidavit form in this Court or in any hearing in the Children’s Court.

5. As Mr A observed, there was an unshakeable belief in the grandparents’ view that the wife was innocent but he went further and confirmed the view that those parties unjustifiably held was that there was imminent danger of the children remaining in the husband’s care.  He said that in the face of the adjudicated outcomes and the evidence to the contrary of other professionals, that persistent view of the maternal family was concerning.  I have to agree.

6. Mr A finally said that the children would suffer irreparable harm if exposed to bitter, caustic and relentless dispute of the adults.  As he cryptically said:

   This is indeed a very sad, and real Greek Tragedy.

7. Mr A’s position was that there should be no contact and he resiled from his original recommendation that there should be communication by cards, letters and gifts.  He thought that that would also be inappropriate.

Is there any basis for the maternal family view about the wife’s innocence?

1. To the extent that it may be argued by the family that the wife was set up by the husband, I emphatically reject that proposition having regard to the ultimate determination of the Victoria Court of Appeal in dismissing the application by the wife for leave to appeal out of time. 

2. At the Victorian Court of Appeal, the wife was represented by experienced senior and junior counsel.  Her original grounds of appeal were amended.  The two significant grounds relevant for my purposes were that the supposed confession to the police should not have been put to the jury on the basis of its involuntary nature.  The trial judge had rejected that and so did the Court of Appeal.  It was observed by the Court of Appeal that the wife had voluntarily attended police and made the confession even to the point where she was not a suspect.  There could therefore be no suggestion that at the time she made the statement, it was of no probative value.  The Court of Appeal carefully examined all of the psychiatric evidence that the trial judge had considered and came to the view that there was no suggestion that the wife did not know what she was doing and saying.

3. Thus, to the extent that there is a distinction in this case between fact and fantasy, there can be little doubt that the facts are that the wife committed an atrocious crime with her boyfriend, was found guilty by a jury and appropriately sentenced by the trial judge.  The fantasy lies with the maternal family but in particular, the grandfather.  For him to be of the view that there was a conspiracy of the like that I have already mentioned, cannot sit with any of the objective facts recorded by the Victorian Court of Appeal. 

4. Accordingly, I find that the evidence of Mr A is very powerful and it is supported by a very experienced practitioner from the Department of Human Services who has expressed serious concerns about any contact occurring between these children and the maternal family.  That evidence combined with the unashamed position of the family must mean there is a real risk of emotional harm for these children even to the extent of simple confusion if there was any contact commenced at this time. 

What is in the best interests of these children?

1. The Independent Children’s Lawyer submitted that there should be no contact between the children and the maternal family and that this was about risk minimisation.  There was nothing ideal about the involvement of these grandparents.  She observed that the husband was the uncontested primary carer and his sole parental responsibility position was not challenged.  As she observed and I agree, the impact on the husband of any such orders as proposed by the maternal family is a matter that a court should consider on the question of what is proper.  As I earlier observed, when making an order, the Court must consider the best interests of the child as the paramount consideration.  It is therefore not the only consideration but that the children’s best interests must hold sway.  In this case, bearing in mind the position of the husband in caring for the children and the responsibilities he has undertaken and taking into account how he is held by the maternal family, it is a legitimate matter for the Court to take into account. 

2. The Independent Children’s Lawyer submitted that there was no basis for the family’s position about the innocence of the wife and in the circumstances, to have the environment of these children disturbed, could not be seen to be in their interests.

3. In respect of cultural issues, as I have already observed, the husband is of Country Z background.  I am satisfied on all of the evidence that the children’s cultural entitlements will not be ignored.

4. The Department of Human Services supported the position of the Independent Children’s Lawyer.  Ms Buchanan of counsel for the Department asserted on the evidence the Court could find that the maternal family’s influence on Ms M Simons was “poisonous” and as a consequence, Ms M Simons could not have a relationship with the children.  It is not necessary for me to make that finding and it may be that Ms M Simons has an opportunity in the future to make a proper application for time with her siblings.  For reasons that are not necessary to regurgitate here, that did not occur in this hearing.

5. Counsel for the Department indicated that the family was enmeshed and matters were now beyond repair.  The Department supported the position as outlined by Mr A.

6. Ms Paull of counsel for the husband pointed to all of the evidence of Mr A which was largely unchallenged.  The husband’s position was identical to that of the Department and the Independent Children’s Lawyer.  Counsel for the husband pointed to the family’s position in relation to the wife’s innocence and as was observed in discussion, the position was untenable bearing in mind the objective factors articulated by Curtain J and the Victorian Court of Appeal.

7. The grandparents had little to say in final submission.  The grandfather however made clear in his inimitable style that everyone was wrong.  He said that Ms M Simons knew better than anyone else what had happened and that regardless of all of that, if there was no contact between he and the children, he and his wife would lose touch with them.  He then accused the husband of not loving his children but adopting the position that he had on the basis that he wanted to “antagonise” the maternal family.  He ended his submissions by saying that there were lots of lies.  It goes without saying that I reject all of that.

8. The maternal aunt was by far the more rational of the maternal family members.  She has a background in the education field but she too acknowledged the difficulty in distinguishing her position from that of her parents.  She said that the Court could not conclude that the maternal family would adversely affect the children if contact occurred under an order.  I am not at all convinced that the evidence supports such an assertion.

Section 60CC factors

1. These proceedings were begun before the amendments to the Act in June 2012 and as such, the earlier provisions apply. As earlier indicated, the Court is obliged to determine the best interests of the children by reference to the matters set out in s 60CC (as they then stood).

1. It is important to observe that s 60CC(2)(a) and s 60CC(3)(c), (e) and (i) all refer to parents. Notwithstanding the absence of the wife, the Court should contemplate those factors that are relevant to husband and wife anyway. Thus, I find there is no prospect of the children benefiting from a relationship with their mother as she is currently imprisoned and will remain so for some years. The children have no understanding of who she is. That must be so having regard to the age of the children at which she was removed from their lives. It was said that Ms M Simons claimed the children were asking for their mother and were missing her but there is no reliable evidence of that. I refer again to the fact that Ms M Simon’s time has been strictly supervised and it is hard to imagine that if things did so occur, some evidence from an objective source such as the supervisor would have been called. I have commented already on the nature of the benefits the children receive from the husband and his new family. That cannot be disturbed without destabilising the children.

2. Each of the other matters in s 60CC(3) just mentioned are all dependent upon the wife making the move to reintroduce the children into her life. She did not do so despite her extended family’s apparent willingness to assist. There are clearly practical difficulties with parents in prison spending time with their children but as all parties were close to Melbourne that may not have been a problem. It is difficult to find otherwise than that the wife has not been a responsible parent. She put the future of the children’s stability at risk by her conduct with her then boyfriend.

3. The other matters in s 60CC requiring consideration because they do extend to the maternal family are s 60CC (2)(b) and s 60CC (3) (a), (b)(ii), (d), (f), (j), (k), (l) and (m). Then there is s 60CC(4) and (4A).

4. Dealing with s 60CC(2)(b) first, the Court was obliged to give as a primary consideration, the need to protect children from various forms of harm set out in the section. That included abuse and family violence. The definition of “abuse” concerned sexual abuse. I am satisfied that is not an issue here. “Family violence” as it was then defined concerned inter alia conduct whether actual or threatened by a person towards a member of a person’s family such as to cause the recipient to reasonably fear for his or her safety. Whilst the evidence from the husband was modestly scant, it is hard to ignore the fact that he was assaulted at the instigation of the wife and has been having counselling. There is no doubt that he fears contact with the family. That is a relevant factor in working out whether it is in the best interests of the children to have contact with those family members. That same point arises in relation to s 60CC(3) (j).

5. In respect of the other matters, there is no relationship between the children and the maternal family (s 60CC (3)(b)) but there is a sound relationship with the husband and it is that relationship that must not be disturbed. I am satisfied that it would be so disturbed if the maternal family had contact. The husband justifiably cannot be in their presence nor does he have anything positive to say about them.  The prospect of the children watching that is concerning. The prospect of the husband having to explain the details to the children about who the maternal family is in a positive and objective way is not plausible. His position in evidence was unequivocal and it is hard to argue with his position as the primary carer of these two children.

6. Section 60CC(3)(d) requires the Court to consider what would happen if the children did have to start building a relationship with the maternal family.

7. I find that these children would be exposed to the prospect of hearing things that could only confuse them and destabilise them.  They do not need to know that their mother is in prison and the circumstances under which she is currently there.  They do not need to know that their grandfather believes that their father has orchestrated that for prurient purposes associated with their older sibling.  They do not need to be confused when they have not had any contact with the extended family members for many years.  They do not need to have their life turned upside down by the possibility of being told that the maternal family believes that their mother whom they know little about is innocent of any wrong doing and that the whole process under which the law took its course, was simply wrong. 

8. The children are too young to express any views at this stage so I have not given that issue any weight.

9. The Court is obliged to consider the extent to which there are likely changes in circumstances of the children or the parents and grandparents or the practical difficulty of having an opportunity to maintain relationships.  None of those matters is of any assistance here.

10. The Court is also obliged to consider the capacity of the various participants to provide for the needs of the children.  Notwithstanding the grandparents and the aunt had ample opportunity to present evidence as to what they could provide in terms of the emotional and intellectual needs of the children, they failed to provide anything.  Their whole case revolved around the fact that they were the relatives and therefore they should have some sort of right to have a relationship with the children.  On the other hand, there is nothing in the evidence of the husband to indicate that he is doing anything other than an admirable job in relation to all of those same matters.  I have already dealt with the cultural issues and do not intend to reiterate that. 

11. The Court is also obliged to take into account the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents.  I have dealt with that issue clearly in the evidence set out above.

12. Insofar as it relates to the wife, family violence in this case needs no further consideration.  I am satisfied on the findings of the jury that the wife was a perpetrator of the crime against the husband.  The State has taken its position clearly by refusing the wife her liberty.  With that, comes the loss of her right to do what parents would normally do.  The children have suffered as a result of that but have been adequately compensated by virtue of the role that the husband has played and that of his new partner.  As I earlier indicated, the grandfather’s position is fanciful having regard to the objective evidence.  Nothing I could see would indicate that I could trust him to keep his views to himself.  The children are therefore at risk in the grandfather’s care but not the father’s.

13. Section 60CC(4A) prior to the amendments to the Act required the Court to consider the role that each parent had played having regard to the circumstances of the separation. I do not need to deal with that here having regard to the facts of the particular case to which I have referred.

14. Having considered all of the other matters in s 60CC, I am satisfied that it is in the best interests of the children that there be no contact between the maternal family members and each of these children. In simple language, notwithstanding their protestations, the children have nothing to gain but much to lose at their current ages from such contact.

15. Initially in the recommendations of Mr A, reference was made to keeping the lines of communication open with the maternal family by the sending of presents, cards and gifts. In my view, he having resiled from that position, it bears further consideration. In my view also, having regard to the fact that these children are very settled and have no concept of who the maternal family members are, it would be folly for the Court to expect that the children would not start to ask questions and become confused in circumstances where after all of these years, they have begun to settle. They have a family life and at their ages, much to lose by having that destabilised. No doubt the children over time will grow and begin to challenge who their family members are but they are currently enjoying the most important things that children can have. That is, they enjoy security, material needs being met, love from two adults and the provision of an environment in which they can simply be children. Whilst a careful examination of the objectives set out in s 60B of the Act would show that the children are not having all of the aspirations that the legislature intended met, on the evidence before me, they are at least having an opportunity to be kept away from what is otherwise a very ugly conflict between two families. The children deserve better than that. In my view, for an order to be made even of a simple nature such as sending cards, gifts and presents, there would be a destabilisation of the current arrangement and in my view, the children do not deserve that. It would not therefore be in their best interests for such an order to be made.

16. For those reasons, I propose to make orders in terms of the orders at the commencement of these reasons.

I certify that the preceding One Hundred and Fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 16 January 2015.

Associate: 

Date:  16 January 2015