Slavkov & Slavkov
[2025] FedCFamC1F 62
•24 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Slavkov & Slavkov [2025] FedCFamC1F 62
File number(s): SYC 9334 of 2021 Judgment of: ALTOBELLI J Date of judgment: 24 January 2025 Catchwords: FAMILY LAW – PARENTING – Where the Court was required determine if the children ought to spend four, six or twelve supervised visits with their father each year – Where the risk to the children that could only be mitigated by permanent supervised contact – Where the safety of the mother and children outweigh the impact of substantial change – Where the Court made orders for six periods of supervised contact annually. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Oram & Lambert (2019) FLC 93-886; FamCAFC 4 Division: Division 1 First Instance Number of paragraphs: 54 Date of hearing: 20 – 22 January 2025 Place: Sydney Counsel for the Applicant: Ms Bromberger Solicitor for the Applicant: Marsdens Law Group Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Caldwell Martin Cox Counsel for the Independent Children's Lawyer: Mr Schroder Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd ORDERS
SYC 9334 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SLAVKOV
Applicant
AND: MS SLAVKOV
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
24 JANUARY 2025
THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged, and the matter is removed from the list of cases awaiting finalisation.
Spend time with
2.The children shall spend time with the Applicant (“the Father”) on six (6) Sundays each year, as nominated by the Respondent (“the Mother”) no later than 28 January each year, provided that the Sundays occur in March, June, July, September, December and Easter, with the Sundays being reasonably proximate to the children’s birthdays, Father’s Day in September, Easter and Christmas. The said time is subject to and conditional upon the following:
(a)Such time is to be supervised by a qualified Supervised Contact Service as may be nominated by the Mother;
(b)The time is initially to take place at B Contact Service at D Street, Suburb E, NSW, if it is available (or such other reasonably local contact service centre as may be nominated by the Mother if it is not available);
(c)The parties shall do all things and sign all documents necessary to complete any intake or enrolment process within seven (7) days of the date of the supervision service being nominated by the Mother;
(d)Such time shall be for not less than three (3) hours on each occasion;
(e)The parties hereby authorise the contact centre service to provide both parties with copies of reports at the Father’s expense;
(f)The Father shall pay all fees charged by the said service associated with arranging intakes and attending each contact visit and all contact summary reports as and when such payments fall due AND including any fees charged to the Mother; and
(g)Should the father desire to invite members of the paternal family to attend with him at supervised visits with the children, he will notify the mother via Our Family Wizard at least seven (7) days in advance of a visit and seek her approval. Any such approval is in any event subject to the policies of the supervised contact centre.
Communication
3.In relation to each of the children, the Mother shall inform and provide copies of the following to the Father via Our Family Wizard:
(a)14 days notification of overseas travel including country and dates.
4.The Father shall only communicate with the Mother about matters relating to the children in accordance with these Orders via Our Family Wizard.
5.The Father is at liberty to send to the children or any of them, cards and/or gifts for the purposes of their birthdays, Easter and Christmas, and any other special occasions for the children.
THE COURT FURTHER ORDERS BY CONSENT AND ON A FINAL BASIS THAT:
Parental decision-making
6.The Mother shall have sole decision-making responsibility for the children:
(a)W born in 2012;
(b)X born in 2014;
(c)Y born in 2016; and
(d)Z born in 2018.
(hereinafter collectively referred to as “the children”) provided that:
(e)The Mother shall give the Father 21 days’ notice of any long term decision she proposes to make;
(f)The Father may provide the Mother with his input or views on that decision no later than seven (7) days after receiving notice from the Mother of the proposed decision;
(g)The Mother must take into account the Father’s input;
(h)The Mother must then notify the Father of the proposed decision no later than seven (7) days thereafter; and
(i)The Mother may make the decision and act upon that decision-making seven (7) days after giving the Father the said notice.
Live with
7.The children shall live with the Mother.
Communication
8.In relation to each of the children and in addition to order 3 herein, the Mother shall inform and provide copies of the following to the Father via Our Family Wizard:
(a)School reports;
(b)Medical reports; and
(c)Notification of any serious medical issues.
9.The parents are to ensure that all communication between them is polite and courteous.
Injunctions
10.Both parents be and are hereby restrained by injunction from:
(a)Audio or video recording any communication or interactions with the other parent and from permitting any other person to do so;
(b)Denigrating the other parent or member of the other parent's family or household (inclusive of partners) in the presence or hearing of the children or from permitting the children to remain in the presence or hearing of any other person doing so;
(c)Discussing any changes or potential changes to these orders with the children or within their presence or hearing and from allowing any other person to do so;
(d)Sending messages to the other parent through the children; and
(e)Discussing the contents of any material filed in these proceedings, including but not limited to allegations raised by either parent, contents of professional reports or other filed reports.
11.Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) the Father is restrained by injunction from:
(a)Approaching, or contacting the Mother or the children (or causing any third party to approach or contact the Mother or the children) in any way (including but not limited to telephone calls, messages, video calls, social media, attendance at school, attendance at sports games and training and other extracurricular activities the children participate in) except in accordance with these Orders;
(b)Attending any of the children’s school events, sports training, sports games, sports presentation or any of their extra-curricular activities;
(c)Intimidating, harassing or verbally abusing the Mother or the children;
(d)Denigrating the Mother and the maternal family to the children or in front of the children or permitting or allowing any third party from doing so;
(e)Taking any steps to prevent or hinder the Mother from applying for and obtaining an Australian Passport for the children; and
(f)Taking any steps to prevent or hinder the Mother or the children from travelling overseas.
Travel
12.The mother shall have sole authority to obtain Australian passports for the children and the Mother shall hold any Australian passport issued to the children until the children attain the age of 18 years of age.
13.The Mother is hereby permitted to take the children out of Australia to a place outside Australia.
14.The children are hereby permitted to travel internationally as provided by s 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) (“the Passports Act”) and for this purpose the Mother is permitted to apply for the issue or renewal of any Australian travel document to and for the children under the provisions of s 11(1)(b)(i) of the Passports Act, AND IT IS REQUESTED that the Department of Foreign Affairs and Trade provide whatever assistance is necessary in relation to the issue or renewal of any such passport or travel documents.
15.Pursuant to s 65DA(2) of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are as set out in the Family Law Courts Fact Sheet: Parenting Orders – obligations consequences and who can help, and these particulars are included in these Orders.
Promotion of relationship
16.Each parent shall do all things necessary to promote and encourage the children's relationship with the other parent, within the framework of these orders.
THE COURT NOTES THAT:
A.As and when a child attains the age of 13 and thereafter expresses a view about spending time pursuant to these Orders, the parents will respect that child’s views.
B.Section 65DAAA of the Act provides the circumstances in which a Court would reconsider final parenting orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Slavkov & Slavkov has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
ORAL REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
This case is about four children. W, born in 2012 (“W”). She is twelve years old. X, born in 2014 (“X”). X is ten. Y, born in 2016 (“Y”). Y is eight. Z, born in 2018 (“Z”). Z is six (collectively “the children”).
The Court had to decide how often and under what circumstances the children would spend time and communicate with Mr Slavkov (“the father”). The father is the applicant. He is 38 years old. Ms Slavkov (“the mother”) is the respondent. She is 37 years old (collectively “the parents”). The parents commenced cohabitation in 2008, married in 2009 and separated in 2021. The parents were represented by experienced lawyers. The children were represented by a very experienced Independent Children’s Lawyer.
The matter came before me for final hearing on Monday of this week regarding both parenting and property. By lunchtime on Wednesday, the parents had managed to settle their property dispute, and some important parenting issues as well. As regards the latter, the parents agreed that the children should live with the mother and that she should have sole decision-making responsibility for the children, subject to her giving the father notice of long-term decisions and taking into account his input.
THE PROPOSALS
The competing final proposals on which the Court had to decide were as follows:
·The father proposed that he spend time with the children for up to six hours once a month supervised by a professional supervision service, on the first Sunday in each calendar month between 10:00 am and 4:00 pm. He proposed that the mother deliver the children to his home at the commencement of time and collect them from his home at the conclusion of time. In closing submissions, it was clarified that the proposed changeover would be supervised. The father sought an order that he be at liberty to send the children gifts, cards and letters.
·The mother proposed that the father spend time with the children four times a year on a supervised basis, on dates nominated by her, for between two and three hours only.
·The Independent Children’s Lawyer adopted the orders as proposed by the mother, with the following amendments:
·The father would spend time with the children six times each year on predetermined Sundays in March, June, July, September, as well as coinciding with Easter and Christmas; in each case, for a maximum of three hours.
·The Independent Children’s Lawyer adopted Order 4 of the father’s revised minute which became Exhibit A1 (“the father’s proposed orders”), save for, leave to send letters and suggested limiting the spend time arrangements in frequency to coincide around the children’s birthdays, Christmas and other special occasions.
·The father’s proposed Order 5(d) was adopted, save that, the notification of time to be given for impending travel be fourteen days’ notice.
·There are other minor divergences between the proposals which, when necessary, will be discussed below.
There seemed to be an agreement between the parents that the Court make a notation to the effect that, as and when a child turns thirteen years of age, the parents will respect any view they express about attending time with the father.
The parents had previously agreed, and Order 3 of the orders made on 22 January 2025 requires, the Independent Children’s Lawyer to explain the orders made about the children, to the children, at the earliest convenience of the Independent Children’s Lawyer.
BACKGROUND
As this case is about the children, the Court sets out the following information about them.
Firstly, W. Ms C, (“the Single Joint Expert”), described W to be a friendly and earnest child, who appeared anxious and sad at the time of the interview. W was excited about school and spoke with pride about her achievements. W had good leadership and public speaking skills.
W’s psychologist, (“Ms G”), was also interviewed by the Single Joint Expert, and she reported that W presented to her with anxiety and panic attacks relating to spending time with the father. Ms G notes that W is preoccupied with the safety of her siblings and feels the need to act in a protective manner when spending time with the father. Further, it was reported by both W and Ms G at paragraph 213 of the Family Report dated 4 July 2023 (“the Family Report”) that, despite a supervisor being present when spending time with the father; whether it be a professional supervisor or a paternal family member, he would still become angry and aggressive towards the children.
In relation to X, the mother reported to the Single Joint Expert that he has been diagnosed with autism spectrum disorder level 2, attention deficit hyperactivity disorder of the combined type, a sensory processing disorder, obsessive-compulsive disorder (“OCD”), generalised anxiety disorder and oppositional defiance disorder. At the time of the interviews with the Single Joint Expert, the mother reported that X took medication once per day in the morning, another medication each day, and a third medication at night.
X’s responses to the Single Joint Expert were short and non-descriptive. He reported that school is “going good” and that he does not have a favourite subject but has a particular dislike for mathematics. Mr F, who was X’s psychologist, was also interviewed by the Single Joint Expert. He reported that X’s most pressing problem is his OCD, as he has developed various ritualistic habits which impact upon his everyday life. Mr F further noted that it took longer than usual to develop an appropriate level of therapeutic rapport with X as he is “quite guarded”.
At the interviews with the Single Joint Expert, Y presented as a shy and quietly spoken child who responded with short sentences. Like X, Y also commented that school was “going good”, that her favourite subject is writing, and that her least favourite is mathematics. Further, Y reported that she is good at making friends and that they all enjoy playing together at lunchtime.
The Single Joint Expert reported that Z presented as a cheerful and chatty child who reported having fun at day care. The mother reported to the Single Joint Expert that Z tends to be a “sensory avoider” and does not like the texture of some foods or loud noises. Further, the Single Joint Expert was advised by the mother that Z has a medical condition that she will likely grow out of and that she has suffered from various recurrent infections; which has led to some disabilities.
It is clear to the Court that the older two children present with special characteristics and needs that the Court must take into account in framing orders in their best interests. The older two children appear to have been most affected by the safety issues in this case that will be described below.
The issues between the parties are narrow in scope, but very important to both the children and the parents. Both parents, but particularly the father, are commended by the Court for so dramatically narrowing the issues for determination by the Court. The Court acknowledges that it must have been difficult for him. He may have received good legal advice and acted on it.
Whilst the Court will be critical of the father for his lack of insight in these reasons, the narrowing of the issues is an example of a tentative step towards greater insight. The father would be well advised to seek out and act on good advice, especially from his treating professionals.
THE EVIDENCE
The evidence of the parties is outlined below.
In support of his case the father relied on the following documents:
(a)Outline of Case Document filed 25 November 2024;
(b)Further further Amended Initiating Application filed 31 October 2024;
(c)His affidavit filed 31 October 2024;
(d)His affidavit filed 21 November 2024;
(e)Affidavit of Mr H filed 22 November 2024; and
(f)Financial Statement filed 31 October 2024.
In support of her case the mother relied on the following documents:
(a)Outline of Case Document filed 20 November 2024;
(b)Further Amended Response filed 11 November 2024;
(c)Her affidavit filed 11 November 2024 (“the mother’s affidavit”);
(d)Affidavit of Ms J filed 11 November 2024;
(e)Affidavit of Ms K filed 11 November 2024;
(f)Affidavit of Ms L filed 11 November 2024; and
(g)Updated Financial Statement filed 11 November 2024.
In support of their case the Independent Children’s Lawyer relied on the following documents:
(a)Amended Outline of Case Document filed 14 January 2025; and
(b)Family Report of Ms M dated 4 July 2023.
For present purposes, it is important to recognise that the evidence of the Single Joint Expert was not challenged and she was not required for cross-examination.
The mother was cross-examined, but nothing that she said undermined any of her evidence about what the Court will generally describe as the safety issues.
The evidence of the father’s treating psychologist, Mr H, was not challenged in the sense of being required for cross-examination, but was quite substantially undermined as a result the father’s cross-examination.
The father was extensively cross-examined with consequential findings that will be discussed below. None of the corroborating witnesses in the mother’s case were required for cross-examination, and thus their evidence is accepted in full.
THE APPLICABLE LAW
The applicable law is contained in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The relevant section is s 60CC of the Act:
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
(Emphasis in original)
DISCUSSION
Even in a case where the ambit of the dispute is so narrow in compass, the main issues remain as follows:
·The safety of the children and the mother;
·The views expressed by the children and the mother;
·The capacity of the father to provide for the children’s needs; and
·The benefit to the children of having a relationship with the father.
The safety issue was self-evident. Even the father’s proposed orders involved supervised time on a permanent, ongoing basis. The Court is satisfied that no other alternative would have satisfactorily managed the safety issues that the children confront in having a continued relationship with the father. A permanent supervised contact order may be viewed as somewhat unorthodox, but in this case, it is in the best interests of the children (Oram & Lambert (2019) FLC 93-886 at [162]). It is the desire of the parents, and it is supported by the Independent Children’s Lawyer. The cost will be borne, not by the public, but by the father.
It is important to acknowledge that in closing submissions, the father’s counsel conceded that the following safety issues were established by the father’s evidence in cross-examination, as well as the other material before the Court:
·Firstly, that findings about family violence by way of surveillance were available to the Court. Indeed, the father’s counsel described it as “irresistible”.
·Secondly, that, likewise, findings about the father’s drug abuse were available to the Court. Again, the father’s counsel described this as “irresistible”.
·Thirdly, it was conceded that the Court would have concerns about the father’s mental health. Counsel for the father acknowledged the submissions made against him about lack of insight but submitted that the evidence about this lacked weight.
The Court observes that the three concessions made by counsel for the father were entirely appropriate, given that the evidence before the Court would inevitably lead to a conclusion that the father’s time with the children would need to be supervised. Whilst some detail is needed about these three issues, as this evidence informs the determination of which of the competing supervised contact proposals is in the best interest of the children, it is, nonetheless, unnecessary to do so other than to summarise the evidence.
In relation to the family violence by way of surveillance. The Court accepts the submissions made by counsel for the Independent Children’s Lawyer, that the surveillance was coercive and controlling behaviour for which the father was charged, convicted, and was able to demonstrate no insight about when given the opportunity in cross-examination. Counsel for the Independent Children’s Lawyer, who is a very senior and experienced family law counsel, described the father’s conduct in this regard as “disgusting” and “horrifyingly perverted”. The Court agrees. The father video-recorded the mother, the maternal grandmother and, according to the mother in her affidavit, the children whilst naked. The Court finds that the father’s motive was control.
The mother’s counsel submitted that there were probably deep-seated mental health issues underlying the father’s behaviour. No such finding is available to the Court, as plausible as that submission might be. What it does illustrate, however, is the likely interrelationship of the father’s mental health, drug abuse and antisocial behaviour. About which, the father showed little insight, until his own proposed orders were provided which acknowledged the need for supervised contact.
In relation to the father’s drug abuse, it is the father’s own evidence in cross-examination that satisfies the Court that his drug use was and, arguably, continues to be, chronic drug abuse. It appears that there was a time when the father was trying to get his hands on any drug that he could including methamphetamines. The mother’s counsel’s submission on this was not exaggerated. Again, counsel was correct in suggesting that the chronology establishes that this occurred at a time when the father was spending time with the children. Indeed, the father’s own evidence concedes drug use after the release of the Family Report which clearly articulated to him the dangers to the children of his drug use.
The father’s failure to undergo drug testing is extraordinary in the circumstances. Nothing that he said in cross-examination provided a plausible explanation for his failure to do so. Indeed, from the Court’s perspective, the father could offer no reassurance whatsoever that he does not continue to use drugs presently.
The totality of the evidence clearly establishes that the father has in the past, and as the Court finds, currently experiences untreated and unresolved mental health issues. Both the Single Joint Expert and Mr H acknowledged, for example, that the father needed dialectical behaviour therapy, which he has not undertaken. In 2021, for example, he had a mental health admission following a self-harm attempt. He acknowledged this to the Single Joint Expert, including that he discussed feeling suicidal.
At paragraph 239 of the Family Report, the Single Joint Expert summarises Mr H’s records, to the effect that, the father had been diagnosed with major depression and anxiety which affected the father in the various ways described. The father’s engagement with Mr H was inconsistent, with an unexplained lengthy gap between visits, which only resumed, the Court finds, because the father was once again confronting criminal charges arising out of his behaviour.
The Court acknowledges that it is likely that the Court does not have a comprehensive understanding of the nature and extent of the father’s mental health issues because of the father’s limited disclosures, as became evident in cross-examination. Indeed, his own treater, Mr H, experienced the same difficulty. The father, in his evidence, sought to minimise these issues. It was his duty to properly disclose this to the Court and, certainly to his treating professionals.
There is sufficient information before the Court, however, for it to comfortably conclude, as properly conceded on his behalf, that his mental health issues were such as to present safety issues for the children which could only be managed by permanent supervised time.
Even though the Court observes this case could be determined solely on the basis of the concessions made by the father, it is appropriate to briefly address the submissions made on behalf of the Independent Children’s Lawyer and the mother about the other bases for the Court to conclude that the safety concerns require supervised contact on a frequency less than that contended by the father.
Counsel for the Independent Children’s Lawyer, supported by counsel for the mother, submitted that the Court would find that the father had sexually abused the mother during the relationship by way of non-consensual sex. This allegedly resulted in the conception of one of the children.
In cross-examination, the father sought to explain this non-consensual sex based on his belief that he suffered from a medical condition. A belief entirely unsupported by any expert evidence. If the father, in fact, suffered from any form of medical condition, he sought no treatment for the same or certainly, none known to the Court.
The Court accepts the mother’s evidence about this, noting that the evidence was unchallenged in cross-examination. The Court accepts counsel’s description of the father’s purported medical condition defence as “fanciful”. He sought to externalise responsibility for his actions and minimise the impact of what he did. The Court finds that the father did perpetrate sexual violence on the mother during the relationship.
Given the seriousness of the findings made against the father, partly based on concessions quite properly made in his case, the Court concludes that the father’s time with the children must be supervised on a permanent basis. This evidence also informs the frequency of such time and brings into focus several other associated issues.
For example, the father’s proposal for monthly supervised time minimises the seriousness of the emotional safety issues for both the mother and the children. The father’s proposal requires the mother, the victim of his violence and sexual abuse, to deliver and collect the children from the father’s house once a month. It is a proposal that manifests a singular lack of understanding about the potentially retraumatising impact of this on the mother and thus, indirectly, on the children. He fails to understand how the mother could, quite understandably and reasonably, experience this proposal as yet another attempt to coerce and control her life years after the relationship ended, and to repeat it every month.
When the Court commented in submissions about the potential inappropriateness of the father’s proposal and counsel explained that his rationale was to maximise his time with the children. That is, the Court observes, shifting the burden of travel onto the mother so that he gets more time. The father justified his proposal for monthly supervised time on the basis that the children clearly loved him and that is an undisputed fact in this case, and further, that it would be a dramatic and unacceptable change in their lives to shift from the current arrangement of regular supervised weekend time to only four or six times a year.
The Court accepts that the Family Report contemplated supervised time as frequently as weekly, but not even the father suggested that. The father didn’t require the Single Joint Expert for cross-examination. The Single Joint Expert was not appraised of the concessions about safety issues for the children made by the father himself. Further, she was not appraised, but does refer to in the Family Report, the evidence suggesting that the children, especially W, was struggling with supervised contact at times because of the father’s inability to manage his affect regulation.
The Single Joint Expert was unaware of the Court’s findings about the father’s drug abuse and mental health issues. She was unaware that the father had minimised to her, indeed, and to Mr H, the nature and extent of his drug abuse and mental health issues. Moreover, there is evidence about the children’s resistance to spending time with their father because of his level of disorganisation and, at times, emotional dysregulation. The two younger children also had trouble separating from their mother at times. For these reasons, the Single Joint Expert’s recommendations hold little weight in this Court when it comes to the frequency of supervised time.
The Court accepts, nonetheless, as a general proposition that the orders proposed by the Independent Children’s Lawyer and the mother would bring about a substantial change to the children’s lives. In reality so would the fathers.
In any event, this is a case where the safety of the children and the mother, particularly the emotional and psychological safety, is an issue that the Court weighs as being more determinative of the decision to be made than the impact on the children of this change.
Moreover, the Court has serious doubts about the father’s capacity to sustain the level of supervised contact that he himself proposes. The evidence of his disorganisation and inconsistency within the current arrangement suggests that even what he now proposes would be unsustainable, especially in circumstances where he manifests no understanding of the need to address his own unresolved mental health and drug abuse issues. Especially their potential impact on the mother and children.
There is already evidence of the children’s disappointment about their father letting them down at contact visits. The Court’s concern is that setting the frequency too high merely creates the opportunity for this to occur more often. How, then, is the difference in proposals between the mother being four times a year, and the Independent Children’s Lawyer being six times a year, to be resolved? The issue was described as one of dosage.
The Court prefers the Independent Children’s Lawyer’s proposal. It more closely balances the need for the children to have a relationship with their father and the need for safety for both the children and their mother. The mother’s parenting has been nothing short of exemplary in the circumstances of this case and she should be able to sustain six visits annually. Her reasons for proposing four are completely understandable and beyond any criticism. Nonetheless, six times annually is assessed by this Court to be not only sustainable for the mother but also for the children.
The focus of the Court now turns to the precise orders that need to be made, a task rendered slightly more complex by different minutes of order for the mother and father and oral submissions indicating modifications thereto. As there is a high degree of similarity between the Independent Children’s Lawyer and the mother’s proposal, the mother’s proposed orders (“the mother’s proposal”), which became Exhibit R9, will be the starting point. The Court notes that the father proposed other variations to the mother’s proposal, including, for example, input into the choice of supervised contact centre.
In the circumstances of this case, the Court considers the father’s variations inappropriate. There is no evidence before the Court to suggest that the mother will act arbitrarily. Contrastingly, the evidence suggests the mother will act only in the best interests of the children.
The mother’s proposal reflects a desire for the children to continue to have some relationship with their father.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 10 February 2025
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