v and R

[2010] FamCA 136

FAMILY COURT OF AUSTRALIA

V & R [2010] FamCA 136

FAMILY LAW - CHILDREN – With whom the children spend time – Time spent with the Father where all contact has previously been supervised – Where the Full Court found the Father was not an unacceptable risk – Where the mother will not foster a relationship between the children and the Father – Time with the Father to be once per month unsupervised and as otherwise agreed.
APPLICANT:	Mr V

RESPONDENT: Ms R

FILE NUMBER: BRF 7903 of 2001

DATE DELIVERED: 26 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 24 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appearing in person

COUNSEL FOR THE RESPONDENT: The Respondent Mother appearing in person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Brasch of Counsel appearing for the Independent Children’s Lawyer

SOLCITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Harrington, Solicitor of Harrington Family Lawyers

Orders

1. All previous orders are discharged.

2. The children, A born … December 1993 and B born … November 1996 live with the Mother.

3. The Father is to spend such times with the children as may mutually be agreed in writing between the parties but in particular the Father is to spend unsupervised time with the children on the first Sunday of each month from 9.00 am until 5.00 pm commencing on Sunday 7 March 2010.

4. For the first six (6) contact visits for the period from March 2010 until August 2010 inclusive with the consent of the paternal grandmother, the Father agrees that she will be in attendance with him at all times the children are in his care pursuant to these orders.

5. The changeover for such contact is to take place at the C Children’s Contact Centre or in such manner or at such other venue as the parties may mutually agree in writing.

6. Any costs associated with the changeover at a Contact Centre are to be shared equally unless otherwise determined by the Co-Ordinator of the Contact Centre.

7. The Mother have sole responsibility for the long term, care, welfare and development of the children.

8. Each parent have responsibility for the day to day care, welfare and development of the children whilst the children are in that parent’s care.

9. The Father is authorised at his own expense to approach any school the children may attend to be given such information as is available to any parent of a child at such school.

10. The Father is authorised to obtain any information in relation to any medical treatment the children may at any time receive.

11. The Mother is required within forty-eight (48) hours of the children receiving any significant medical treatment to notify the Father in writing with full particulars of the nature of such treatment, the place of such treatment and the treating medical practitioner.

Telephone Contact

1. The Father is to be at liberty to telephone the children between 6.00 and

   
   

   6.30 pm on Tuesday and Thursday of each week or such other times as the parties may mutually agree in writing.

2. The children are at liberty to telephone their Father at any time.

Communication Generally

1. The children are at liberty to communicate with the Father by post or email at any time.

2. The Father is at liberty to forward letters or emails to the children.

3. The Mother is to keep the Father informed in writing of the children’s postal address including any change of such address.

4. The Mother is not to change the children’s school unless she has given the Father twenty-one (21) days notice in writing of her intention to do so together with full particulars of the new school and the reasons for such move.

5. It is requested that the Manager, Child Dispute Services of the Brisbane Registry of this Honourable Court request a Family Consultant to forthwith arrange a time to speak to the children to explain to them the orders made by the court on this day and the reasons for the making of same.

6. Six (6) months from the date hereof unless otherwise ordered the Independent Children’s Lawyer is discharged.

7. All parties given liberty to apply on forty-eight (48) hours notice to the other parties to relist this matter in relation to any enforcement or other issue which may arise.

8. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF7903/2001

Mr V

Applicant

And

Ms R

Respondent

REASONS FOR JUDGMENT

1. The parties are the parents of two boys, A aged sixteen – he will be seventeen in December of this year and B aged thirteen – who will turn fourteen in September this year.

2. The parties separated in March 1999 after a period of co-habitation of about six and a half years.

3. During the course of the relationship the parties principally resided in North Queensland although they spent a period of a little over twelve months in Brisbane.

4. The parties have been litigating over children’s issues for just on ten years.

5. The Father filed an application for contact with the children on the 13 February 2000.  This application I believe was filed in North Queensland.  It is noted that that application was filed ten years and ten days ago from the date of hearing of this matter.

6. There was a trial before Carmody J in March 2004.  His Honour found that the Father presented an unacceptable risk to the children and ordered no communication of any kind between the Father and his sons.

7. The Father instituted an appeal which was supported by the Independent Children’s Lawyer.  The Full Court (Finn, Kay and Holden JJ) allowed the appeal.  In the course of a detailed judgment the Court observed (paragraph 96):

   96.We are obliged to examine the evidence to determine whether or not the welfare of these children is going to be advanced by having a relationship with their father and, if so, what form that relationship should take, given all of the matters involved in the complicated relationships within this family.

   97.      Our conclusion is that the evidence did not permit the trial judge          to find that an ongoing relationship with their father by regular        contact posed an unacceptable risk to the children.  In our view           the probability that he had done anything sexually to them      seemed remote given his unshaken denials and by his own          contemporaneous explanations. In those circumstances the         suggestion that contact would be adverse to their interest because      they believe their father had acted inappropriately towards them      and their beliefs needed to be respected seems strange.  The      evidence suggesting the children might be disturbed if    compulsorily brought into contact with their father whom the   children might now believe to have sexually abused them was at            best equivocal.  What they needed was an opportunity for a non-  abusive relationship with both parents.  This could only occur if         they were given the chance to develop such a relationship with their father.

8. The orders of the Full court provided:

   3.The contact orders that were operative immediately prior to
   25 March 2004 remain in full force and effect.  At the conclusion of 12 months hereafter the parties attend upon a counsellor nominated by the Manager, Mediation of the Brisbane registry for the purpose of preparing a report as to how the children and the parties are coping with contact and as to the desirability of extending contact on a non-supervised basis.  Each party then be at liberty to apply for such further orders as to contact as they may be advised.

   4.That each party and the Children’s Representative be at liberty to file and serve within 14 days, submissions as to what if any orders should be made by the Full Court regarding orders 6 and 7 of the orders made by Carmody J given our conclusion that there should be a reintroduction of contact based upon there being no finding implicating the father in having abused the children.

9. Unfortunately for the Father the previous orders made by Jordan J on the

   
   

   20 March 2003 provided for the Father spending only three hours every two months at the L Contact Centre, a total of some eighteen hours a year.

10. It is not clear what other orders were made subsequent to the decision of the Full Court but at the latest on 4 July 2008 I ordered that the Father have two hours every four weeks at the C Contact Centre.  In recent times that time has been spent “off site” with the consent of the Contact Centre.  The paternal grandmother has been present for the majority of the outings.

11. The records of the C Children’s Contact Centre are before the court as exhibit 1.

12. A is currently in grade twelve at P College.  B is at the same school in grade nine.  The boys’ report cards are annexed to the Mother’s trial affidavit.

Issues in Dispute

1. The issues in dispute in this matter relate to a relatively minor area.

2. The Father’s position is to be found in a handwritten document filed on

   
   

   29 January 2010.  He asks for an order that he see his sons on one Sunday a month on an unsupervised basis.  He is agreeable to his mother accompanying him for the first six visits.

3. The Father had filed an application in 2006 in which he sought unsupervised time gradually increasing to weekend and school holiday time.  The Father does not press for orders in these terms.

4. In relation to his mother being present for the first six visits the Father does not accept that this is necessary but it is done more to assuage the ongoing concerns of the Mother.

5. The Mother seeks orders as set out in an amended response document filed on 12 February 2010 as follows:

   - - 1.That until 31 December 2010, the children (sic)

   [A] born … December 1996

   spend time with the father as follows:

   a.At the [C] Children’s Contact Service at such times and for such duration, but not less than 2 hours every 4 weeks, as can be arranged by the father with that Service;

   b.That the father meet the costs of use of the [C] Children’s Contact Service for the contact specified in Order 1 (a) and in addition the father is to pay to the mother the sum of $30.00 as contribution towards the mother’s travel costs to be left at the Contact Centre and if not paid, the next visit is forfeited;

   c.That the father’s time with the [C] Children’s Contact Service be, at the discretion of the Service, either conducted at the [C] Children’s Contact Service’s premises or offsite supervised outings;

   d.That, subject to the [C] Children’s Contact Service rules, the father be permitted to invite his paternal family members to accompany him to the [C] Children’s Contact Service or any supervised outings;

   e.That the father provide to the mother by text message to … at least 24 hours notice of his inability to attend the Contact Centre in accordance with order 1 (a).

   2.That from January 2011, the Father spend time with the children at such times as may be requested by either or both of the          children.

   3.That in order to facilitate any such time pursuant to Order 2 hereof, the following provisions shall apply:

   a.The children shall be at liberty to telephone or email the Father to arrange a time and place for them to meet with him;

   b.The Father shall keep the children and the Mother informed of his current address, landline and mobile telephone number and if he has one an email address at which the boys can contact him;

   c.The Father shall advise the Mother of any changes to the information in Order 3b within 24 hours of any changes to those details;

   d.The Mother shall keep the Father informed of the children’s postal address, a mobile telephone number and an email address at which the Father can email her with the details of any arrangements made with him by the children to spend time with him;

   e.The Mother shall advise the Father of any changes to the information in Order 3d within 24 hours of any changes of those details;

   f.The Mother shall ensure that an internet, an email account and a current mobile telephone account are maintained for the children at all times;

   g.The Father shall email the Mother with the details of any times and places arranged by the children for them to spend time with him;

   h.The Mother shall be responsible for any transport of the children between their home and any place where it has been arranged, between the children and the Father, for them to spend time with him;

   i.The Mother shall not prevent or disrupt the arrangements made by the children with the Father to spend time with him.

   4.That the mother advise the father of the name and address of the children’s schools and keep him informed of any changes to the children’s education within 24 hours of such a change occurring.

   5.That this order serves as Authority for the children’s schools to provide to the Father, at his expense, with any information the father may request about he children’s academic or other performance at school and copies of the school’s report cards for each child, together with newsletters.

Family Reports

1. Three family reports were prepared by the Family Consultant, Mr F in 2005, 2007 and 2009.  Mr F gave oral evidence in the proceedings on 24 February 2010.

2. I have no difficulty in accepting the observations made by the report writer in his three reports. 

3. Where he has recorded conversations I accept it is likely he has accurately recorded same.

4. I accept his oral evidence particularly to the extent the views expressed therein may be seen to be in conflict with the views expressed in the reports.

5. At the commencement of the hearing Counsel for the Independent Children’s Lawyer submitted this court was bound by the findings of the Full Court in relation to the allegations the Father had abused his sons.  I accept this is an accurate statement of the law and neither parent contended otherwise.

6. In a ruling given on 18 February 2005 the Full Court observed:

   Given our conclusion that there should be a re-introduction of contact based upon there being no finding implicating the Father in having abused his children - -.

   The Full Court discharged orders of Carmody J that the Mother take the children for therapeutic counselling for child sexual abuse.

7. It is clear enough for all to see from the lengthy detailed reasons of the Full Court there is no finding the Father has abused his children.

8. Sadly the Mother refuses to accept the court’s ruling.  She was adamant in the course of oral evidence that the Father had sexually abused his children and nothing would convince her otherwise.

9. It is always a concern to a trial judge when a litigant fails to concede the slightest possibility of error or mistake on his or her part.

10. I had the distinct impression the Mother has no appreciation just how hurtful and how destructive it is to accuse a parent of abusing his/her own children.

11. Normally, in proceedings in this nature, I would raise the possibility of an apology by the accuser.  Most times in my experience such an apology is forthcoming.

12. I do not intend to raise the issue with the Mother.  I am confident an apology to the Father would not be forthcoming.  The court is not in a position to force her to do so.  I simply observe if she had one ounce of objectivity or one ounce of insight into the harm she has done to the father’s life and the lives of her children, she would apologise.

13. Professor N in his report of January 2002 details the various allegations.

14. At paragraph 23 of his report he records the Father’s statement that the children’s conduct is attributable to the behaviour of a neighbour’s child.  I would have to observe that the Father’s explanation is at the very least plausible.

15. I stress the Father does not have to prove his innocence.  The Full Court has established that there is no blemish on the Father’s character.  There is no evidence to support the allegations that the Mother has consistently made.

16. I mention these matters in passing because, notwithstanding the Full Court’s ruling, dealing with this matter without reference to the Mother’s fixation that abuse has occurred is to ignore the elephant in the room.

17. I have no confidence that what I say or do will have any impact on the Mother’s attitude but it may assist a Family Consultant to explain the court’s reasoning to the boys.

18. I have no reason to doubt the evidence of the Father and his mother.  He made concessions that the mother was a good parent.

19. Whilst the matter has been in my docket the Father withdrew a contravention application.  I accept that this was a gesture of good will on his part.

20. Counsel for the Independent Children’s Lawyer submitted that this case is all about section 60CC(2) focusing on a consideration of the primary issues with the most significant aspect being the need for a “meaningful relationship” with each of the children’s parents.  I accept the force and accuracy of the submission in those terms.

21. On the available evidence I am more than satisfied the Mother places no value whatsoever on a relationship between the boys and their father.  To the extent she at times says she wants the boys to have a relationship with their father it is a platitude uttered with no sincerity.

22. My reasons for so concluding are as follows:

    ·She has at all times sought to grant to the Father the bare minimum of supervised time.  I am satisfied Jordan J in March 2003 would not have made the order he did unless sought or supported by the Mother.

    ·I accept the abuse allegations were serious but by that stage the report of Professor N was available.  In Professor N’s report (paragraphs 32 to 35) he notes:

    32.I found this a difficult case to evaluate.  Both parents impressed me as substantially truthful, give or take some leeway for minimization and embellishment.  [The mother] appears to have had a rebellious adolescence and young adulthood, perhaps as a result of conflict with her mother, and to have drifted into a bohemian lifestyle in the course of which she formed a relationship with [the father] to whom she was initially drawn by their mutual interest in spiritual matters.  In the period during which she lived with [the father], her partner did not work other than for brief periods, saying that he suffered from carpal tunnel syndrome.  Even though she had two children to him, her interest in her partner waned.  When he was eventually imprisoned for scofflaw offences she formed a relationship with a family friend, leading to a number of altercations after
    [the father] was released from prison   During one of these altercations [the father] threatened [the mother] and her lover in front of the children.

    33.During the latter part of the relationship, both parents agree that [the father] was seriously involved in the taking of illicit drugs.  Whereas both parties had made liberal use of marihuana, [the father] began to use intravenous heroin and amphetamines, together with oral sedatives.  It is likely that, because of [the father’s] substance abuse, [the mother] became further alienated from him.  His imprisonment for scofflaw offences precipitated the termination of the relationship.  I believe [the father] when he says that he never stopped loving [the mother], although her increasing coldness toward him caused him to move further in the direction of substance abuse.  He seems to have been devoted to the children.  He wanted to marry, but she did not.  She never initiated love-making and became less and less demonstrative toward him.  At times, reportedly, she told him that she hated him, although she gave no reason for doing so.

    34.I did not find that [the mother] suffers from a psychiatric disorder.  She undoubtedly had a rebellious adolescence, presumably because of conflicts in her family of origin and perhaps because of the undisclosed sex abuse to which she was exposed at the hands of a grandfather.  Her rebelliousness led her to an “alternative”, bohemian lifestyle and thence into a relationship with [the father].  Gradually, however, she became disillusioned with [the father], as a result of his chronic unemployment and substance abuse.  She currently lives in Brisbane, works consistently, but has no close relationship.

    35.[The father] describes a stable childhood in an intact family.  He dropped out of school in Grade 12 and had a number of jobs before moving to North Queensland.  It is not clear why he has not been more assiduous in searching for employment or seeking further education.  It is only in the last eight months, reportedly, that he had given up drug-taking and excessive alcohol intake.  There is nothing about him that suggests that he might be an incestuous homosexual paedophile, and frankly I find this hard to believe.

    ·I note at paragraph 17 of Professor N’s report he made an observation that towards the end of the interview when the Father contemplated his loss of contact with his two boys he burst into tears. 

    ·In my experience paedophiles don’t cry over their victims.  Paedophiles have no empathy with their victims.  If they could express empathy they wouldn’t act as they do.

    ·The Father strikes me as an emotional, compassionate man which is inconsistent with the profile of a paedophile.

1. Further reasons why I find the Mother would not at any time foster a meaningful relationship between the Father and his sons include:

   ·She did not comply with the order made by me on 4 July 2008 that the Father spend time with the children every four weeks.  She cancelled the time in December 2009 on the basis she was taking the boys up to see their maternal grandmother.

   ·Prima facie this would appear to be a contravention of the court’s orders.  The Mother’s non-compliance does not end there.  It extends to misrepresentation in the course of her oral evidence.  The Mother says she was not offered make-up contact and she added the Contact Centre did not offer make-up contact at any time. 

   The records of the Contact Centre may be interpreted to reveal that not only does the Centre offer make-up contact but they offered make-up contact in relation to this visit.

   In late April/early May after the Centre made arrangements for the Father to see the children off site the Mother cancelled the next two visits.

   I am prepared to conclude that she did so for no reason other than her opposition to the Father spending supervised time with his sons off site.

   ·When the subject of off site visits was raised the Mother wrote a two page typed letter dated the 16 April 2009 to the operators of the Contact Centre.  The Mother raised at paragraph 2 of that letter as her first concern:

   “- - a risk of abduction.”

   She refers to an incident which occurred back in 1999.  The circumstances as I understand them, is that the Father was serving a period of three months imprisonment for unpaid traffic fines.  Whilst he was in prison the Mother visited him with the boys.  Without informing the Father the Mother commenced a relationship with a neighbour a

   
   

   Mr T.  When the Father was released from prison and was confronted with the fact that the Mother was in a relationship with his neighbour he became angry and took the children with him for one night.  He engaged in conduct which, with the benefit of hindsight, he accepts was regrettable and for which he has fully apologised.  It has to be borne in mind that there were no court orders in place at the relevant time and the Father had equal rights to the children.

   Shortly after this incident the Mother left the area and moved to where her mother was residing in the Mackay region.  The Father did not know where she was.  Was that an abduction?  It seems the Mother’s position was that she could do with the children as she wished without regard to the rights of the Father but if he wanted on one occasion more than ten years ago to take the children for one night it is said to be a telling reason why he should not spend off site time with his sons more than ten years later.

   I find such reasoning to be completely fatuous.  The Mother’s assertion in the course of cross examination that she could not be satisfied the boys would be safe, even with the paternal grandmother present, bordered on the bizarre.  She constantly endeavoured to avoid answering the questions but it was quite clear that she would not give an unequivocal answer to the proposition that the paternal grandmother would not in any way stand by and allow the children to be harmed by their father.

   ·There is an abundance of evidence in the contents of Mr F’s reports of how the Mother has influenced the boys in their views.  The boys have been so indoctrinated by the Mother it is quite possible they believe the Father did commit abusive acts.

   ·The Father said B compared him to Ivan Milat.  I accept that it is highly probable that such suggestion emanated from the Mother or someone in her household.  When asked what she did when she heard B make such statements the Mother replied, “Nothing.”

   ·In summary it is abundantly clear the Mother will do nothing to foster an ongoing meaningful relationship with the Father.

2. I turn to consider the three reports from Mr F.  The first report was completed in November 2005 at paragraphs, 27, 28 and 29 of that report the Mother was asked what her attitude to unsupervised contact was:

   27.[The mother] opposes an extension of contact for three reasons.  Firstly she believes that the boys are at risk of sexual abuse in the hands of their father.  With this she believes that the boys, while having had some protective advice on issues of sexual abuse, are not of an age where they can protect themselves against the behaviour of an adult.

   28.Secondly, [the mother] believes that without the supervision and restraints of the contact centre, [the father] will expose the boys to his views about the history of the separation and the allegations of sexual abuse.  She believes that this would be confusing and quite overwhelming for the boys and would create risks to their relationship with her and [the father].  She believes that the boys currently have independent views about their father.  Whilst she does not doubt that they are aware of her negativity she believes that their personal understanding of their father is as a result of their own recollection of events and history.  She believes their “independent” views would be at risk.

   29.Thirdly, [the mother] sees a risk to [X].  She would be most concerned if the boys were to recommence sexualised behaviours as a results of their exposure to their father and she believes that [X] would be an obvious target for the boys.

1. I find the Mother’s three justifications as inherently implausible.  I see no basis whatsoever for any of the reasons advanced by her why the Father’s time with the children should be supervised at a Contact Centre. 

2. At paragraph 30 of the 2005 report when queried whether she would be compliant with court orders the Mother was recorded as saying:

   30.With some prompting, [the mother] stated that if the Court were to order that contact become unsupervised she would want the regime to be subject to monitoring and review by the Court.  She was reluctant to offer any alternative position.  [The mother] made it clear that she would have considerable difficulty observing an order which allowed unsupervised contact. 
   [The mother] states that she would in all likelihood not follow the order and would refuse to hand over the boys.  She stated, “I would not be there.  I would not follow it.”  [The mother] states that has (sic) considered the legal consequences of such an action and the possibility of sanction by the Court.

3. The Mother’s stance appears to have altered somewhat.  In the hearing before me she was indicating that she understood the necessity to abide by court orders.

4. I accept the submissions by Counsel for the Independent Children’s Lawyer that whilst the Mother may abide by the court orders she would not encourage the boys to spend time with their father in accordance with the requirements of the court orders and would facilitate the implementation of the orders in an unwilling fashion.

5. I simply caution the Mother that if court orders are not complied with there are consequences and such consequences can be serious.

6. At paragraph 47 of the same report when B was asked what it would be like if he saw his father in other places he replied:

   - -“Mum wouldn’t like it.  She would get angry.”

   I accept the submissions made by Counsel for the Independent Children’s Lawyer that this is the primary explanation for the type of statements that the boys have made to the report writer.  There is an obvious disconnect between what the children are saying to the report writer and what the report writer observes.  For example at paragraph 44 of Mr F’s third report he writes:

   44.An observation was conducted between the boys and their father.  They willingly followed me into the observation room.  [A] was more affectionate and receptive to his father.  [B] appeared quite relaxed and focussed on the various things in the room.  [A] chatted to his father about things and volunteered information.  He appeared quite genuinely interested in talking to his father.  [B] appeared responsive to questions from his father and engaged with him around playing Quoits.  The interaction was pleasant, boyish and humorous.

7. I unhesitatingly accept the Father’s account corroborated as it is by the paternal grandmother that he has been having enjoyable times off site during the all too brief periods that he has been seeing the boys.

8. At paragraph 56 of the first report Mr F observes:

   56.There are limitations however to supervised contact.  It does not allow a relationship to develop between the boys and their father in such a manner that they recognise or trust him as someone who can meet their basis needs and emotional needs.  For the father, it also involves a considerable level of travel and expense.

9. I am firmly of the view the boys are at a sufficient level of maturity that they can deal with the negativity emanating from the Mother’s household. Nonetheless, to ensure the Mother does not undermine the Father’s position further, it is important that there be orders in place and that times be stipulated. 

10. By the time of the second report, Mr F records that orders had been made in September 2007 which were not being followed.  The Mother had not taken any steps to register with the C Contact Centre (refer paragraph 7).  The Mother’s position was stated by Mr F at paragraph 9 of the report:

    9.[The mother] is opposed to face to face visits at this stage.  She seeks that the Order allows the boys to have telephone and written communication with their father only.  She seeks to have sole parental responsibility for them.

11. In the third report at paragraph 22 the Mother concedes that B’s behaviour has improved in recent months.

12. The interview for this occurred in August 2009.  The first off site visit as I read the records of … occurred on 26 July 2009 as the Mother had cancelled the two previous monthly visits.

13. I am unable to conclude that the off site visits were responsible for the improvement in the behaviour of B but I can observe with some degree of confidence that the off site visit did not lead to a deterioration in his behaviour.  If it had, I am more than confident the Mother would have been stressing this to Mr F in the interview in August 2009 but she seems to be informing him to the contrary.

14. Under the Mother’s proposals the effect of the orders is that for the remainder of this year the children would only see their father at a Contact Centre.  As of next year they would only see their father if they wished to.  I accept the force of the submissions made by Counsel for the Independent Children’s Lawyer that without a court order the boys would not wish to offend their mother by actively seeking time with their father.

15. At paragraph 34 of the third report in the course of an interview with A

    
    

    Mr F notes:

    34.I asked what makes him feel insecure and he said, “Just this.  Him”.  With the word “this” he was alluding to the fact he was at Court.  I asked him whether or not he considered how his mother might feel.  He said he did and his misgivings about spending unsupervised time with his father were about half his own and half his concern or (sic) how his mother would feel about it.

16. At paragraph 35 he expressed the possibility that he may regret not having a more natural relationship with his father when saying:

    - -“I don’t really know.  They must know what they’re doing.”

17. I would interpret this as likely to be a reference to the ongoing court orders and the recommendations of the report writers.

18. The situation has changed dramatically in recent times given the boys maturity and the strong recommendations by the Independent Children’s Lawyer and the report writer that the Father’s time with the children should be unsupervised.

19. I do not propose to canvass in any detail the other factors set out in section 60CC(3).  The Mother will be the primary parent.

20. I propose to accede to the Father’s application and order that he have unsupervised time on one Sunday each month from 9.00 am until 5.00 pm.

21. In summary form my reasons for so ordering are as follows:

    ·It is in accordance with the recommendations of the experienced Family Consultant.

    ·It is in accordance with the recommendations of the Independent Children’s Lawyer and Counsel acting on her behalf.

    ·It will allow the Father to have greater freedom to interact with the children.

    ·It will enhance the prospects of the children developing a meaningful relationship with their father.

    ·I dismiss out of hand the assertion by the Mother the children would somehow be at risk in seeing their father on an unsupervised basis.

22. In my view the greatest risk to the emotional wellbeing of the children is in the fixated view of the Mother that the children have been subjected to abuse by their father and the prospect that directly or indirectly the Mother will continue to imbue the children with her beliefs.

Parental Responsibility

1. The orders of Carmody J of March 2004 provided in paragraph 3 that, “the Mother was to have the sole responsibility for the care, welfare and development of the children”.  It would be a reasonable inference to draw that his Honour made such an order based on his findings that the Father had engaged in serious sexual abuse with each of his sons. 

2. Somewhat strangely the Full Court on 25 November 2004 only discharged paragraph 4 of the order of Carmody J.

3. There has been no variation to the orders for parental responsibility since that time. 

4. Neither party seeks a change to the order for parental responsibility in the limited proceedings before me.  The issue of parental responsibility particularly as the boys are in their teenage years is a very important one.

5. When delivering these reasons I propose to call for further submissions on this aspect.  At the very least I would be minded to give the Father full authority to approach schools, medical practitioners and other sources to be fully informed of the children’s progress.  The Mother would need to be required by court order to inform the Father in writing of any medical treatment the children have received, the name of the medical practitioner and the date.  The Mother would also need to be responsible to inform the Father of any significant changes in the boys’ situation such as any proposed change of schooling, change of address or major change of circumstance.

Costs of the Contact Centre

1. Previously the Father has had to subsidise the Mother for petrol expenses in attending at the C Contact Centre.  I do not propose to continue an order in those terms.  The view that I take is the children are of an age where they could be delivered by the Mother to a police station or a railway station or some other public site and the Father could collect the children as sensibly arranged between the parties.  So long as the Contact Centre is to be the changeover site then it is reasonable in my view for the costs of the Contact Centre to be shared equally.

2. The Father has agreed that his mother will attend with him for the first six visits.

3. I do not propose to make a formal order that she supervise.  There will be a notation to the order that with the consent of the paternal grandmother the Father agrees that she will be in attendance at all times for the visits occurring in the period from March 2010 until August 2010.

4. This is not to say the paternal grandmother cannot be present at subsequent times but it is a matter for the Father.  The Father is of course during the periods the children are in his care at liberty to take them to such venues and to introduce them to family members and friends as he deems appropriate.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  26 February 2010