Telling and Mines

[2010] FamCA 658

FAMILY COURT OF AUSTRALIA

TELLING & MINES [2010] FamCA 658

FAMILY LAW – CHILDREN – Application for parenting orders – Allegations of sexual assault by the father – Where authorities concluded these allegations to be unsubstantiated and unfounded – Considerations of M & M requirements – Section 60CC factors

APPLICANT: Ms Telling

RESPONDENT: Mr Mines

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 11542 of 2008

DATE DELIVERED: 23 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 21 and 22 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr T.A. Nielsen

SOLICITOR FOR THE APPLICANT: Carswell & Company

COUNSEL FOR THE RESPONDENT: Ms Farr

SOLICITOR FOR THE RESPONDENT: Bell Dixon Butler Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Selfridge

INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. That the Father and Mother shall have equal shared parental responsibility for the children S born … February 1999, K born … February 2006 and T born … September 2008.

2. That the parents are to consult with each about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   2.1They shall inform the other parent about the decision to be made;

   2.2They shall consult with each other on terms that they agree;

   2.3They shall make a genuine effort to come to a joint decision.

3. The children shall live with the Mother.

4. That the Father spend time and communicate with the children at all times as agreed between the parties but failing agreement as follows:

   4.1With K:

   a)each alternate weekend after school / kindergarten Friday to before school / kindergarten Monday; and

   b)in the following week and each alternate week thereafter from after school / kindergarten Wednesday to before school / kindergarten Friday;

   c)For half of all school holidays being the first half in even numbered years commencing 2010 and the second half in odd numbered years commencing 2011, with any other time that the children spend with their Father pursuant to these orders to be suspended during these holiday time periods.

   4.2With T but to coincide with the times that the Father is spending time with S and K as follows:

   A.From Saturday 31 July 2010:

   i.from 12 noon to 5 pm Saturday and Sunday each alternate weekend; and

   ii.in the following week from 12 noon to 5 pm Thursday;

   B.From 31 October 2010 onward:

   iii.from 10 am to 5 pm Saturday and from 10 am to 5 pm Sunday each alternate weekend; and

   iv.in the following week from 10 am to 6 pm Thursday;

   C.From 12 December 2010 onward:

   v.from 5 pm Friday to 10 am Saturday and from 9 am to 5 pm Sunday each alternate weekend; and

   vi.in the following week from 9 am to 5 pm Thursday;

   D.From 31 March 2011 onward:

   vii.from 5 pm Friday to 5 pm Saturday and from 9 am to 5 pm Sunday each alternate weekend; and

   viii.in the following week from 5 pm Wednesday to 5 pm Thursday;

   E.From 30 June 2011 onward:

   ix.from 5 pm Friday to 5 pm Sunday each alternate weekend; and

   x.in the following week from 5 pm Wednesday to 5 pm Thursday;

   F.From 30 September 2011 onward:

   xi.from 5 pm Friday to 5 pm Sunday each alternate weekend; and

   xii.in the following week from 5 pm Wednesday to 9 am Friday.

   4.3With S as for K save for each alternate weekend and to commence after school on Thursday.

   4.4All changeovers shall be at school / kindergarten where possible but in default then the Mother or her nominee shall be responsible to deliver the children to the father’s residence at the commencement of the Father’s time with each of the children and the Father or his nominee shall return the children to the Mother’s residence at the conclusion of the time.

   4.5The children shall be at liberty to telephone the parent whom they are not currently with in private on each Wednesday between 6 and 6.30pm and each party is to facilitate this by supply of a landline or mobile telephone number.

5. The children shall spend time with and communicate with the Father on special occasions as follows:

   5.1For Christmas Day the children shall spend time with the Father and Mother in alternate years;

   5.2On each of the children’s birthdays which do not fall on a day the children are spending time with the Father then the Father shall spend time with the children from 3.30 pm to 5 pm if it’s a school day and from 2 pm to 5 pm if its non school day;

   5.3On the Father’s birthday if does not fall on a day the children are spending time with the Father then the Father shall spend time with the children from 3.30 pm to 5 pm if it’s a school day and from 2 pm to 5 pm if its non school day;

6. That T’s surname be changed to MINES and the Father be recorded on her birth certificate as her father and both parents shall sign all such necessary forms as may be required by the Registrar of Births Deaths and Marriages to give effect to this Order.

7. Each parent shall keep the other parent informed of their current residential address and contact telephone numbers including mobile telephone numbers and shall notify the other parent within forty-eight (48) hours of any change to their residential address or contact numbers.

8. Each parent shall notify the other parent immediately in the event the children require urgent medical treatment or hospitalisation while in that parent’s care and further each parent shall advise the other as soon as reasonably practical of any other serious health issue affecting the children, most particularly any illness or injury suffered by the children for more than twenty-four (24) hours.

9. Each parent shall keep the other parent informed of the names and addresses of any treating medical or health practitioners who treat S, K and T and the parents authorise by this Order any medical practitioner, specialist or hospital who provide treatment to S, K and T to give to each parent information about S, K and T’s health and wellbeing.

10. That the parents authorise by this Order any educational institutions attended by S, K and T the subject of these Orders to give each parent information about S, K and T’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by S, K and T (at that parent’s cost).

11. Neither party shall denigrate the other in the presence or hearing of the children nor allow other persons to do so.

12. Neither party will discuss these proceedings with the children.

13. In tandem with the Independent Children’s Lawyer, the Family Report Writer Mr F is to ensure that S has the full effect of these Orders explained to her.

14. The Father is to make provision in his time with the children to ensure that he spend time with the other two children apart from S when she is at school.

15. Matter be re-listed in 12 months time to ascertain how the Father’s time with the children is progressing and for a short report by Mr F to be prepared prior to 1 July 2011.

16. The Mother be permitted to provide copies of all the reports prepared by Mr F and/or Dr M to her professional counsellor.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 11542 of 2008

MS TELLING

Applicant

And

MR MINES

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Telling for parenting orders in relation to three children of a relationship between herself and the respondent father, Mr Mines. 

2. The parties formed a relationship in 1997.  They lived together for a period until 1998.  They separated in 1999, and they got back together again in 2004.  Began living together again in 2005, finally separating in February 2007. 

3. Of the relationship as aforesaid, three children were born:  S, in February 1999;  K, born in February 2006;  and T, born in September 2008.  There was some query about the parenting of T, but that has been resolved, and there is no question that the father is, in fact, the father of all of the children. 

4. As I have said, they separated in about 2007.  The mother, I think, was still pregnant – was pregnant at that time with T –

RECORDED   :   NOT TRANSCRIBED

Or T was very, very young, and she moved out of the house. 

1. In August 2008 a consent order was made in the Hervey Bay Magistrates Court making certain orders.  Further orders were made, and in December 2008 the order of – the federal magistrate’s order that the – any contact that the – any contact the father had with the children was to be supervised by either of Ms W, I think it was, and Ms J.  I think it was E Contact Centre was also involved as a backup, if necessary.  That final order to which I have referred was brought about as a result of matters which loomed very large in this case, and I will be touching upon it in some detail at a later stage. 

2. I believe that Murphy J, I think, subsequently made an order varying the order of December 2008, and in –

RECORDED   :   NOT TRANSCRIBED

and I understand that the parties have been enjoying contact ordered under that order, and that, in fact, little trouble has occurred between the parties, notwithstanding that it would be inconvenient, as it has been said by the respondent that his contact had to be supervised. 

1. Basically, since an order of Watts J, it appears that the supervisor is, in fact, the respondent's mother, whom I have seen in this court, and I am pleased to say that the applicant mother, notwithstanding her views in relation to the father and initial caution in relation to the paternal grandmother, is now of a view that she is doing a good job, and she has a deal of confidence in her, and I compliment the mother for that but also, of course, compliment the paternal grandmother who gave me the impression of being a person of some note.  She is a registered childcare carer.  She is entitled to care for seven - four under and three over, and she has converted her house into a place where she can look after children overnight.  I commend her for that.  It would not be an easy job. 

2. The brief history that I have touched upon is in itself unremarkable, but in or about the month of October 2008, K, who was then two years, and I think the mother told me two years and six months – about that, two and a half years of age approximately – made what she says were certain disclosures about a person who was unknown or was unidentified by the mother.  This was brought about as a result, as it appears, of the child suffering a night terror and making certain statements to the mother about things which allegedly happened to her. 

3. The mother was gravely concerned about this, believing that the child had been sexually abused by someone.  At that stage, she had no view and did not wish, if I may put it that way, to believe that the father may have been involved in the abuse or abused whilst she was in the father's possession.

RECORDED   :  NOT TRANSCRIBED

I refer to the exhibit of the mother's handwritten letter which was handed to the father and is contained at annexure C to the affidavit of the father filed 3 February 2009.  In that letter dated 22 October, the mother says inter alia:

My reason for not continuing with the orders is because our daughter, [K] (born […] February 2006) has disclosed to me in detail that she has been sexually abused whilst in her father's care. 

This was an endeavour to explain why she refused to comply with the orders indicating, as perhaps may be understandable, that she did not trust the child to be adequately protected whilst in the possession of the father.  I think it is understandable, particularly as K was quite distressed at the time, but it may be that the - an explanation for her stress was that she was suffering from a night terror. 

1. Now, the mother quite properly took what I considered to be adequate steps to protect her child.  It was not until about a month later that the child disclosed the fact that it was the father who perpetrated these acts upon her.  I do not wish to dignify the acts by referring to them in detail in my reasons.  They are quite clearly set out in the material before me, the exhaustive material. 

2. I must also compliment, I think it was probably the independent children's lawyer who organised the exhibit book which I have been trying to get people to do for the last 30 years instead of having exhibits all over the affidavits, which costs an enormous amount of money to everybody.

3. As a result of what the child said, and if my memory serves me correctly, she said when asked ‑ perhaps it was led a little bit - as to who carried out these acts upon her, she said “my friend [E]”.  No, first of all “my friend”, and then “[E], my friend”, and E, of course, referred, as it is quite clear, to the respondent father. 

4. The mother made the necessary complaints, and the complaints that she has referred to have been investigated as I consider quite thoroughly, even though she is not terribly satisfied with it, quite thoroughly by the respective authorities including the police and the Department of Children's Services.  They have come to the conclusion that any complaint by the mother in relation to alleged sexual assault upon her child by the father is unsubstantiated and unfounded. 

5. I am fully aware that the prime decision to be made in this case is whether or no the child has been sexually abused, and if so, by whom.  If I am unsatisfied - if I am not able to find that either one or two - that is, the abuse and/or, two, the perpetrator, then I should be satisfied that on the material before me, the requirements of M & M have been satisfied and that there is an unacceptable risk to the child which far outweighs the benefit which the child may receive by having contact with her father. 

6. Whilst I am, I think, reasonably well‑known for comparative shortness of my reasons for judgment, I make it quite clear here that I have considered the enormous amount of material which has been put before me.  I do not say the material is in any way irrelevant. 

7. I must also touch upon the fact that in the Sunshine Bay Health Service report which appears to be dated 18 December “2888” which Selfridge has pointed out quite correctly is wrong, but I prefer it to be referred to as it being dictated on 24 October 2008, and this appears at page 49 of the exhibit book, that the Queensland Government and perhaps the police became confused. 

8. I think it is possibly common ground now that that report which is also dignified by Dr D at page –

RECORDED   :   NOT TRANSCRIBED

page 232, a report by a Dr D.  He seems to just refer to and incorporate, in effect, the initial findings of this report.  As I have said, I am satisfied ‑ I don’t think it is suggested to the contrary that there is confusion about that, that in fact there was another situation which concerned the mother in about July of 2008 when there was evidence to her that, in fact, the child whilst in the possession of the father had, in fact, had her nappy changed by a stranger.  She at that time accepted, I think perhaps grudgingly, the statement by the father that if it took place - it did not take place in his house, and it was not carried out by a person known as N, who was a friend of the father.  She did that, as I said, grudgingly, and it appears that this report, as well as what Mr D – Dr D has picked up is an amalgamation of both of them. 

RECORDED:   NOT TRANSCRIBED 

1. It appears to me that it is a combination of both, because if it hadn’t been, there would have been a particularly – a reasonable explanation for what took place and what has been reported by K.  I think that really it is a combination of both, but has there, in fact, been an explanation for what took place with K? 

2. As it has been pointed out by Nielsen of counsel for the applicant, that if, in fact, it has - an explanation has been forthcoming, it was not forthcoming until about February 2009, and it is contained basically in the father's affidavit of 3 February wherein he indicates he has agonised over what could have caused K to complain about what has taken place, and at paragraph 20 of that affidavit, he indicates what he considers to be an explanation of why she said that. 

3. The mother does not accept his explanation. But to me, having seen the father, it appears to me that it may be too complicated an explanation to not be true.  Attempting that he has set out that he considered that it may have been as a result of the child applying some form of Avon cosmetics to her body and making a dreadful mess which he says that he was cross about, that he had to undress her, that he referred to it as being yucky, and this is a word which has concerned the mother, as with other things, has concerned the mother particularly, as being yucky, and as a result, he had to wash all the clothes.  I think he said he took her down to show her all the clothes that he had to wash. 

4. On the face of it, that is a reasonable explanation, but do I have to have a reasonable explanation to come to the conclusion that no sexual abuse has taken place?  I do not think so.  To me it makes it easier for me to determine that no sexual abuse has taken place by K, either by the father or, as far as I am concerned, by anybody else. 

5. The mother points once again as perhaps corroborative of the fact that in March of ‘09, the child complained to her of some injuries to her genitalia, that she observed the genitalia was red, and that the anus was contracting uncontrollably.  She, however, notwithstanding the fact that S, when K said that it was caused by a seesaw, said she was lying, has come to the conclusion, I commend her, that that is very difficult for her, that probably the father had nothing to do with it, but the child was injured by some form of bouncing machine which appear to be all too prevalent at public playgrounds for children.

6. What, then, are we left with?  We are left with, as has been pointed out by Mr F, a very experienced family consultant and psychologist and a Dr H, of a mother who has an intractable belief that, in fact, the child was abused by the father. 

7. I have indicated on several occasions during this trial that I can understand the mother's feeling.  I can understand any mother being particularly protective of her girl child or any child from the predations of a cowardly bully as she believes has happened. 

8. I regret to say that I cannot support her belief.  I have made it quite clear it has concerned me; it has concerned Mr F; it has concerned Dr H.  I refer particularly to Dr H, who is a psychiatrist, where he says in his report, which is exhibited to an affidavit of 2 September 2009, that - see page 20 of 23, and I wish he would number his paragraphs:

   I share the Department of Child Safety's concerns –

   I should touch on that, too -

   about her posing a risk to her children's emotional wellbeing as a result of her fixed views regarding a risk of harm posed by the father, and I have –

   and he underlines this or emphasises this –

   significant doubts about her emotional ability to support their relationship with the father despite her intellectual acknowledgment of the necessity of this for the children's optimal development. 

9. I have already referred to the fact that the Department of Children’s Services investigated this and found it unfounded, but also in their reports they have indicated they are somewhat concerned that the children are suffering emotional abuse by the mother because of her intractable views in relation to the alleged sexual assault perpetrated upon K. 

1. Mr F is particularly concerned, a similar thing to what Dr H has said, but also the affect it may be having on S.  S I think is 10 or 11 now, is she not?  It’s 11 – yes, she is 11.  S appears to be - have taken upon her the very difficult task of being a supervisor of K, and I expect T to a lesser extent, and that she is – what’s the word I’m trying to think of – spying, perhaps, upon the father and his relationships with the children in an endeavour, as I infer, to protect her.  Now, this may have either overtly – either covertly or probably overtly been brought about by the mother. 

2. I am quite satisfied that the mother has discussed or allowed the children to be involved in this application, and I am not for one moment saying the father hasn’t, but unfortunately I believe that her justified concern, as I find wrong, but justified concern is causing her to project a fear to the children, and the eldest one, being S:  she has been put upon her, perhaps, as I say, covertly and not overtly, put upon her the responsibility to ensure that her siblings are safe.  That in itself is unfortunate.  It is much too strong for a child of her age to be put in that invidious position of being a supervisor of her father, and that’s what it is. 

3. If the mother was right - and I make it quite clear that she is not - but if she was right, perhaps there may be an excuse for it. I doubt even in those circumstances there would be an excuse for it, because it has been supervised up until now, but she must stop that.  She must stop involving the children either intentionally or unintentionally.  It must stop not only for her sake, in particular, but for the sake of the children. 

4. It has been explained by Mr F on several occasions in his three reports that I have referred to and incorporate in these, my reasons for judgment, the reasons why he said it is essential that the pressure be taken off, in particular, S, but generally. 

5. If, in fact, the mother has intended by that pressure to alienate the children, as has been feared by the father, she has failed, because the children still have a warm, loving, and affectionate relationship with their father.  So if she has - and that makes me feel as though she hasn’t done this intentionally, but as I have already said, a lion is protecting her cubs - that it’s failed, and nothing more she can do will change it now.  The children have a good relationship with their father. 

6. They like their grandmother, and I think that the children should be encouraged to be allowed to develop this without any emotional pressure upon them.  If that emotional pressure continues, they’re going to be emotional wrecks by the time being – well, particularly S – very soon.  She is coming into womanhood;  she’s under terrible pressure at this stage.  Girls of about 11 or 12, as I asked Mr F, do have this mothering feeling, but he said, and I think the paternal grandmother, who is a childcarer, said, “Yes, she understands that, but this is worse;  this is too much,” and I think there is much in what she says. 

7. The parties have put before me what they desire in this case, and if I might point out that the mother is seeking that the current orders be extended:  in other words, that the father has contact.  She does not object to the children having contact with their father at all, but she says they must be protected, and it must be supervised and continue to be supervised in accordance with the present and existing order. 

8. As has been pointed out by Mr F, long‑term supervised contact is not in the best interests of anyone:  not the mother, not the children, and not the father.  He has explained it, and I am sure the mother has heard what he has said, as has the father, that children think, “Why is the person whose contact being supervised having to be supervised?”  There may be something in it, not that they know about it, but there may be something in it, and it tends to build up a resistance towards a natural, warm, loving, and affectionate relationship between the children and the person who has to be supervised. 

9. I am generally against lengthy supervision at contact centres.  However, on many occasions we are very fortunate that we do have contact centres which allow perhaps in some way undeserving parents - and I don’t say fathers;  I say undeserving parents - to have contact with the children where the court would not be able to grant it otherwise, particularly insofar as sexual abuse is concerned and the second leg of M & M. 

10. I say in passing once again, perhaps for both of the parents, that what the children want insofar as abuse is concerned, whether it is emotional, which can be the worst, physical, or is sexual, is it – for it to stop, and in this case, I am satisfied it hasn’t started.  So at least we have got that step to go ahead with. 

11. The father wants the children to be placed in his care because he says of the mother's, for example, intractable belief in something which he says never took place, her highly volatile and emotional state, the fact that he believes that she’s suffering from some mental disorder.  That does not gel with Dr H, who says that she may be emotionally sensitive more so than is normal, but she is not suffering from any psychiatric disorder.  He does say – I’m sorry;  I can’t find it for the moment.  However, he is quite clear that she may have some fragility in her emotions, but she does not suffer from any psychiatric disorder. 

12. Equally, the father does not either.  He perhaps is in a stronger position mentally than the mother is.  I would think that the father may have a bit of a short fuse on occasions, and I would sincerely hope that if, in fact, he has, that he controls it, particularly in the presence of the children.  There is no evidence that that has in any way affected the children, but there is some complaints from the mother that he does drink alcoholic liquors to excess and also has a bad temper.  If that’s the case, we will try and keep them away from each other so they are not able to see each other and have blood immediately start into the eyes. 

13. If I accepted everything the father had said which is not supported by the evidence, I would be in the same position as Mr F.  Mr F was cross‑examined quite properly on this point.  The father's case was put to him, and I think Ms Farr of counsel, who was on behalf of the father, indicated assuming all these things were right, why wouldn’t you recommend the change, and he said that the relationship between the mother and the children is more important than what the mother's attitude towards the father is and general attitude, and I refer, I think, to his last report and also to his evidence where he after strenuously - I say strenuously advisably - strenuously recommend that there be no change in the primary living conditions of the children.  He said there are three things, in particular, which the courts could look at. 

14. S:  I have already touched upon S.  As the father realises, I am not going to change the residence of the children. S has a lot of pressure on her. Her shoulders, perhaps, aren’t very broad, but it should be stopped, as I have already indicated, and also he indicates that there should be clear and definite communication to S that, in fact, she is entitled – that she is entitled to love and respect her father without any fear of child abuse allegations being proved.  I do that. 

15. Mr F is also of the opinion that there should be some form of counselling for S and further is of the opinion, and this is his second point, that S should be able to spend time with her father without the other two.  She is different in age;  she is, what, some six years older or thereabouts than K;  she is coming, as I have already said, to a very important and difficult part of her life.  She loves her father, and she does wish to spend more time with him, and you will note in my orders for contact which I will be making very soon that I have, in fact, allowed her to have an extra night with her father so she can enjoy that without the responsibilities as she sees it of looking after and supervising K and T. 

16. He has also suggested this matter should be brought back about a year from now so I may consider how the mother is taking it.  I think, and I am very confident, that notwithstanding her view that the mother is going to be able to encourage, not greatly, but she’s going to be able to encourage the relationship between the children - she sees it, that it’s there;  she’s recognised that she must not and will not, and I’m sure she won’t, put any obstacles in the way of that relationship improving and getting better and better.  She is not going to lose by it by any means.  The children will respect her for not pushing but encouraging them to go to their father.  They know.  They are not stupid. 

17. It has been suggested that it be just a mention, but I think it would be important that there be a short report from Mr F about 11 months from now so it can be brought back, and if, in fact, the report, once published by myself, in no way causes any concern, there will be no necessity for the parties to return.  I am very confident that there will be no necessity for them to return, but I do feel as though the mother must be given the opportunity of working through this difficult period she will have. 

18. She has indicated one thing which I think is quite impressive:  that she was receiving some support from Lifeline by way of telephone and counselling.  This was a matter which I think Mr F agreed to.  He said it’s a good idea, but she must do it on her own, and she has done it.  She is undertaking to attend upon Relationships Australia for counselling in relation to her accepting the judgment of this Court.  It will be very difficult for her, but we’ve had the opportunity of having a good look, and it has been investigated very thoroughly, and I think there’s much in what that explanation is at page 20, and so it is used otherwise too as well, but I think it’s quite - seems to me to be quite a reasonable explanation. 

19. As I said, Mr F’s big worry was that he thought that there may be a chance that the mother won’t comply with the order.  She’s told us she will, but perhaps she may have told us she will grudgingly.  She is not dumb.  She recognises that the counselling is going to be – that she needs the counselling;  she is going to do it.  I will not be making an order for counselling, and that, naturally, of course, will be investigated by Mr F when he completes his short report by next year.

RECORDED   :   NOT TRANSCRIBED

1. Insofar as a foreshadowed application on the part of the father by his counsel that the children should be allowed to have passports prepared in their names for the purpose of some stage in the future journeying to the Philippines to meet relations, it was not investigated by myself to any extent at all.  I don’t believe the mother has been given the opportunity of considering it in depth, but now that the more important matters have been cleared, I am sure that the mother would realise that if, in fact, she is given adequate information concerning when the children are going, where they’re going, that there is telephone numbers or places where she can contact them, if necessary, that she would not oppose it, but that’s a matter which will come back before me, if necessary, and also, there must be sufficient notice.    

RECORDED   :   NOT TRANSCRIBED

ORDERS DELIVERED

1. I had overlooked, when giving my ex tempore reasons in this matter, the requirements of the division dealing with the matters which have to be set out clearly by any Judge determining matters of this nature.  I am of the opinion that it is unnecessary to go through each of the factors other than to emphasise those factors which I consider in these circumstances are reasonable.

2. These matters that I will particularise have, in my opinion, arisen during my Judgment but I have not, as I have said, particularised them.  Initially, there is the question of shared parental responsibility and it appears to me the orders that I have made, in effect, quite clearly do not in any way rebut the presumption as set out in the relevant sections.

3. I am more than satisfied that the children have and require a meaningful relationship between both of their parents and I believe that the orders which I have made will, in fact, encourage that.  There is some concern, in my view, as to the psychological harm that one of the children, and that is S, could be subjected to but I am satisfied that once the mother has heard the case as it carried on and my Reasons for Judgment that she will come to the conclusion that S is, at this stage, under enormous pressure to, in effect, be the supervisor of K and this must stop and once it has stopped I am sure that S will be relieved immensely herself.

4. The relationship of the child with either of the child’s parents is good and the evidence is that the mother has a good relationship with the children who reside with her, equally the father does.  I believe that there has been some concern about the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the child ie. K and the father. 

5. Once again, I am more than satisfied that the mother has seen the difficulties under which she has been labouring, and K, and will stop any disencouragement of a warm and friendly relationship between the child and her father.  Insofar as the attitude to the child, I am of the belief that now the responsibilities of parenthood will be demonstrated by each of the child’s parents.

6. Section 60CC(4) does to a certain extent concern me, once again insofar as the attitude of the parents in that they have not recognised, but do so now, the difficulties under which S is labouring, and in a way whilst I am once again sure that this will be overcome, there has been a failure to fulfil the responsibilities as a parent.  I must also take into consideration, the fact that this order being for substantial time after taking into consideration whether or not the orders are reasonably practicable. 

7. The parties live close to each other – I think some 20 minutes apart – consequently I am more than satisfied that the arrangements which have been made will be reasonably practicable in all the circumstances. 

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date:  3 August 2010