Vigano & Desmond - [2012] FamCAFC 79

FAMILY COURT OF AUSTRALIA

VIGANO & DESMOND

[2012] FamCAFC 79

FAMILY LAW – APPEAL – CHILDREN – with whom children spend time – best interests of children – benefit to children of meaningful relationship with both parents – appellant father in prison – children had previously undertaken regular prison visits for face-to-face contact with father – first instance judge ordered cessation of face-to-face contact – held on appeal that first instance judge appropriately weighed positive and negative aspects of continuing face-to-face contact – appellate interference not warranted – appeal dismissed.

FAMILY LAW – CHILDREN – with whom children spend time – best interests of children – children’s views – consideration of children’s best interests broader than just their views as recorded in family report – disruption to family life caused by face-to-face contact – importance of supporting mother as sole provider of physical, emotional and financial support – lack of certainty as to whether children would be adversely affected by continuing face-to-face contact.

FAMILY LAW – CHILDREN – family consultant – recommendation of face-to-face contact in report – additional evidence available at trial – views more equivocal under cross examination.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
H v W (1995) FLC 92-598
House v The King (1936) 55 CLR 499
Lambert & Lambert [2002] FamCA 537
Marvel v Marvel (2010) 43 FamLR 348
McCall & Clark (2009) FLC 93-405
Napoli & Napoli [2004] FamCA 706
Newlands v Newlands (2007) 37 Fam LR 103
R v R (Children's Wishes) (2002) FLC 93-108

APPELLANT:

MR VIGANO

RESPONDENT:

MS DESMOND

FILE NUMBER:

MLC

10076

2008

APPEAL NUMBER:

SOA

2010

DATE DELIVERED:

13 June 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Strickland & Murphy JJ

HEARING DATE:

4 May 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

24 September 2010

LOWER COURT MNC:

[2010] FMCAfam 1018

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Duckett

SOLICITOR FOR THE APPELLANT:

Lewenberg & Lewenberg

COUNSEL FOR THE RESPONDENT:

Mr Hutchings

SOLICITOR FOR THE RESPONDENT:

Altavilla Vessali

COUNSEL FOR THE INDEPTENDENT CHILDREN’S LAWYER:

Ms Buchanan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kenna Teasdale

Orders

The appeal be dismissed.
There be no order as to costs.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 85 of 2010
File Number: MLC 10076 of 2008

MR VIGANO

Appellant

And

MS DESMOND

Respondent

REASONS FOR JUDGMENT

Introduction

In this matter the father appeals against orders made by Hartnett FM on

24 September 2010. The point in the appeal is a discrete one but the issue is of some substance. The appellant (“the father”) has been in prison for serious sexual offences from 1994 to 2001 and then from late 2003 to the present time and continuing. During some of that time since 2003 the two children,

child X
and child Y, aged 8 and 7 years respectively at the time of the appeal hearing, visited their father in prison but particularly from May 2008.
The visits were made pursuant to an undertaking by the mother to the Children’s Court and subsequently pursuant to interim orders made by consent in the Federal Magistrates Court. The visits had been occurring each fourth Sunday at the prison.
The father’s application for final orders filed on 6 November 2008 sought a number of orders for various forms of communication, but the order relating to the central issue was Order 3:
3.That the children spend time and communicate with the [f]ather as follows[:]
a.Each alternate Sunday for a period of 1 hour
b.Reasonable telephone contact to be initiated by the [f]ather as agreed between the parties and in default of agreement
i. Wednesday each week
ii.Each alternate Sunday that the [f]ather is not spending time with the children
It is fair to characterise the father’s application as essentially one in which he sought to maintain face-to-face contact with the children on a regular basis at the prison whilst he remains incarcerated.
Although she had previously consented to an interim order, the mother’s position at the final hearing was that face-to-face contact at prison was not in the interests of the children and it was opposed by her.
The father’s application was heard by Hartnett FM on 13 and 14 May and 29 July 2010, and judgment was delivered on 24 September 2010. Her Honour found that it was in the best interests of the children that they not have face-to-face contact with the father and that instead there should be communication by correspondence in the form of cards and letter, and by gifts.
The relevant orders made by her Honour were:
(1)The father spend time and communicate with the children
[X] born … May 2002 and [Y] born … March 2004 by correspondence in the form of cards, letters and gifts at all reasonable times. The mother to provide same to the children save the mother is at liberty to return same to the father if such correspondence contains matters that would not promote the best interests of the children.
(2)In the event the children express a wish to see the father or telephone the father, the mother take all reasonable steps as may be necessary to ensure the children spend time with and/or telephone the father.
…
The father appeals those orders and seeks orders that the children spend time with him at a correctional facility one Sunday for at least three hours every six weeks or such time as the Full Court deems appropriate, and that the paternal grandfather facilitate all changeovers and transport the children from the mother’s residence to the correctional facility and home again.
At the final hearing the children were represented by an Independent Children’s Lawyer (“ICL”). The ICL supported the father’s application to spend face-to-face time with the children and submitted that the children should spend time with the father at the correctional facility one Sunday every six weeks. The ICL supports the appeal and appeared before us and made written and oral submissions.

Factual Background

The background to the matter can be stated very shortly as the significant facts are not in dispute.
The parties met in 2000 and cohabited on and off between 2001 and 2003. Child X was born in May 2002 and in March 2004 child Y was born.
The father was convicted of rape in 1994 and he was released in 2001 after serving a full term. In late 2003 he was arrested for rape and in October 2004 he pleaded guilty. He was imprisoned for 12 years with a minimum period of 10 years before being eligible for parole. Subsequently the father was tried in relation to a number of other serious offences committed in July 2003 and received an extension of his total sentence with a new non-parole period of

11 years and 3 months. As a result the father will not be eligible for parole until 2018.
In September 2004 the father was diagnosed as having an anti-social personality disorder not amenable to treatment.
In 2003 and 2004 the mother voluntarily visited the father in prison, sometimes with child X. In late 2004, the mother ceased visiting the father in prison, citing her acquiring knowledge of the severity of his crimes as the reason.
In 2008, in proceedings in the Children’s Court where it was found that the children were in need of protection in their mother’s care, the mother gave an undertaking providing for the children to spend time with the father in prison.
The mother’s undertaking expired on 5 November 2008 and on

6 November 2008 the father filed an application for final orders in the

Federal Magistrates Court seeking the orders referred to above.
Interim orders that the children spend time with the father at the prison were made by consent on 15 December 2008 and continued on 14 April 2009.
The mother has three older children from a previous relationship. These children were aged 19, 17 and 14 years at the time of final hearing. The father’s sister, Ms G, was at the time of the final hearing in a relationship with the mother’s ex-partner who is the father of her three older children. In addition the mother has a sixth child with her current partner with whom she does not live. The child was aged two years at the time of final hearing.
Throughout the father’s incarceration, his sister and the paternal grandfather have been willing and able to transport the children to the prison.

The reasons of the Federal Magistrate

Before addressing the grounds of appeal it is useful to provide some context to her Honour’s decision from findings by her Honour in her judgment.
At paragraph 12 of her reasons for judgment, her Honour said:
The father has not participated in a sexual offenders program in the prison. He claims that is not available to him until he enters the last three years of his sentence. Nor has he engaged in any drug rehabilitation program. He commenced using drugs at about 12 years of age and described in his past as being addicted to marijuana and using amphetamines, heroin and, after meeting the mother, ice. He has completed whilst in jail an “exploring change” program and a “cognitive skills” program. The father did not recall the crime for which he was first sentenced to imprisonment. In fact he had very limited recall of his criminal history, which is extensive and which commenced in 1986. His offences include a rape conviction in 1994 with a release in 2001 having served a full term. He did not, during that time, complete a sex offenders course, despite being offered same. On
14 October 2004 the father pleaded guilty to one count of rape committed on 17 November 2002. He was ordered to serve 12 years imprisonment with a minimum of 10 years to be served before becoming eligible for parole. He was subsequently tried in relation to a series of serious offences committed in July 2003 and received an extension of his total effective sentence with a new, single, non-parole period of eleven years and three months. The father is a serious sexual offender as defined in s.6B(2) of the Sentencing Act 1991. He does not consider he needs treatment in relation to this offending. He omitted a description of the nature of his offending from his affidavit material. It was placed before the Court in exhibits tendered including the judgment of the Supreme Court of Victoria Court of Appeal… Also in evidence was an earlier report by Dr [J] a psychiatrist who examined the father in relation to his criminal proceedings and who diagnosed the father in September 2004 as having an anti-social personality disorder not amenable to treatment.
In relation to domestic violence which the mother alleged was perpetrated upon her by the father, her Honour dealt with this at paragraph 13 of her reasons for judgment:
The mother gave evidence in the proceedings of horrific domestic violence perpetrated upon her and the children by the father. In one part of her affidavit filed 8 April 2009 she said as follows:
“13. I refer to paragraph 8 of the father’s affidavit and deny the allegations therein. I say that the reason was because of violence perpetrated against me by the father. On one occasion in 2001, the father punched me in the stomach when I was 11 weeks pregnant with our first child, [child X]. He almost killed me by strangling me and beating me. As a result I had a blood clot in my eye and bruises on my neck. My 18 year old daughter, who was 10 at the time, called the … Police who attended and I believe saved my life. I applied for an intervention order after this.
14. I say further that the father is an extremely dangerous man. On various occasions, the father bit me on my back, held a knife to my throat, and a cricket bat to my head. On one particular occasion when I tried to stop the father from removing [child X] from my care, he punched me in the ribs, fracturing 2 of my ribs.
15. On another occasion, the father had climbed into my house through a window and was hitting me. [Child X] was present in the room and he demanded I give her to him. When [child X] was alone with her father in the bedroom, she suffered a bite on her face. I and my 3 older children saw she had teethmarks and a large bruise on her right cheek. She was younger than 12 months at the time. I did not leave, as I was alone with no family, no friends and had no support what so ever. I was also extremely afraid of the father. The father also raped me during the relationship. On another occasion the father asked me if I had learned to gargle. He then said “After I slit your throat and your mouth is full of blood”. The father was holding a knife to my throat at the time.”
The father denied being physically violent to the mother and denied punching her, biting her and/or attempting to choke her. Further the father denied biting the child [X]. I accept the evidence of the mother and her evidence of the trauma it still occasions her. A more detailed description of that violence and its effects is set out in her affidavit of 13 January 2010 and I accept the contents of that affidavit, including its expression of the wishes of the children. The father was convicted in 2002 for recklessly causing injury in an assault upon the mother with his sentence being wholly suspended for three months. He then entered prison in June 2003 when [child X] was just over 12 months of age.
As to the mother’s present relationship with the father’s sister, Ms G, who together with the paternal grandfather had been transporting the children to the prison, her Honour found, at paragraph 14 of her reasons for judgment:
Ms [G’s] relationship with the mother is now poor. They were, previously and for some years, very good friends. Ms [G] resides with Mr [M] and there have been episodes of domestic violence between them necessitating police intervention. Mr [M] has seriously physically assaulted Ms [G]. Ms [G] considers the mother to have destroyed both her life and that of her brother by introducing them to the drug, ice. She claimed the drug destroyed her and caused her to lose everything including her marriage and home. Ms [G] was not a reliable witness. She denied current drug use other than marijuana which she described as occasional use. She nevertheless tested positive to both cannabinoids and methylamphetamine (“Ice”) on a drug screen produced in evidence in the proceedings. Ms [G’s] evidence as to the abuse allegations made by [child Y] was that at the time her father did not understand and she translated (what [child Y] had said) to her father in Italian. She claimed her father was shocked and said nothing further. Her evidence was that she also was shocked and that [child Y] was very serious when telling her. She gave evidence that she told her brother of these allegations on the day they were made and during the prison visit. Ms [G] claimed she could not recall how her brother reacted when informed that his son had been digitally penetrated by his mother’s partner. Her brother gave contradictory evidence. He claimed that at no time were the allegations ever repeated to him by Ms [G] or their father. He discovered the allegations were made subsequently and from a third party. Ms [G] did admit that she slapped the mother at a change-over of the children and otherwise I prefer the evidence of the mother and Mr [P] as to what occurred on that day.
Her Honour set out the evidence of Dr W, the independent expert who had prepared the family report, at paragraphs 15 and 16 of the reasons for judgment:
15.Dr [W’s] evidence was that as contact has occurred and a relationship commenced, the children, in the absence of knowledge of their father’s crimes, would be quite confused as to why it had suddenly stopped. She observed [child X] to enjoy her father’s company but also to be uncomfortable with him. She expressed the view that in ceasing to see her father [child X] would have a more negative view of him as she is unable to see the positive sides of him. She conceded however that she could not be reasonably certain that the children would not be adversely affected by continuing to see their father.
16.Dr [W’s] recommendations as contained in her report that the children spend an overnight period with the paternal aunt and paternal family altered in the witness box after her hearing evidence as to Ms [G’s] drug use and evidence as to her de facto partner, whom Ms [G] described as a “changed man”, not sufficiently changed in that he battered her “black and blue” in 2009.
In concluding that the best interests of the children militated against an order for face-to-face contact with the father at prison, at paragraphs 17, 18 and 19 of her reasons for judgment, her Honour noted the following matters:
·The nature and frequency of the father’s crimes has resulted in him being registered as a serious sexual offender.
·The mother, as a consequence, and at this stage in her life, can see no benefit to the children – or herself – in their pursuit of any relationship with their father until his release, and even then it will be problematic.
·She queries how they can have a meaningful relationship with their father when he is incarcerated for such a long period, almost their entire childhood.
·The reason for her consent to earlier orders was a combination of her ongoing friendship with Ms G, the paternal aunt, and her feeling of having no choice in her dealings with the Department of Human Services.
·The reality is that she has not thought it in her children’s best interests to visit their father in jail for the entire time that they have done so.
·The prison environment at the correctional facility is a satisfactory one, conducive to family meetings.
·The prison itself is some distance from the children’s home and thus the day requires a commitment on the part of all concerned, the children, their mother, their paternal aunt and their paternal grandfather.
·The elder child would have little or no recall of her father outside prison and the younger child has never known him save as a prisoner.
·The children have moved on with a family life as structured by their mother to include a step-father and four other siblings, and which their mother describes as a now-secure and loving environment, and so the imposition of prison visits is destructive of that environment.
·The mother’s new home environment is one the father would never be invited into.
·The father claims to want to see his children, although interestingly he on one occasion declined a visit when child Y was to go alone.
·He acknowledges he can play no real part in their lives but the visits have enabled them to see him and know he exists.
·The children do not wish to go or at times are ambivalent.
·The children have no real understanding of their father’s crimes save what their mother has told them. As comprehension dawns on them they may become afraid of him and have no desire for any form of communication and yet such communication and/or contact may be imposed upon them by the ongoing operation of an order of the Court.
·The mother’s anxiety levels are rising as a consequence of the forced visits. They are now a form of trauma for her.
When determining that it was not in the best interests of the children to have face-to-face contact with their father, her Honour concluded that, whilst the father may gain some benefit from seeing his children, the usefulness of the visits for the children is questionable. Her Honour found that the visits are not supported by their mother and that the children are aware of that. The visits disrupt the family life established by the mother and her new partner, and the mother would not be willing to take the children to the prison. The task was left to those of the father’s family members who had made an allegation of abuse against the mother’s partner, which her Honour found on the balance of probabilities to be unsubstantiated.

Her Honour concluded on the evidence that with the assistance of her partner, the mother was the sole provider of physical, emotional and financial support to the children and that she needed to be supported in that role so that she functioned optimally.
For those reasons, her Honour dismissed the father’s application insofar as it sought to continue face-to-face contact by prison visits to him.

The grounds of appeal

There are two grounds of appeal:
1.Her Honour erred in according insufficient weight to:
(a)the primary consideration contained in section 60CC(2)(a) of the Act, namely the benefit to the children of having a meaningful relationship with both of the children’s parents;
(b) the submissions of the Independent Children’s Lawyer at trial, namely that it was in the overall best interests of the children to spend time with their father at [the correctional facility] one Sunday every six weeks;
(c)the evidence of the Family Report writer at trial, namely the recommendation that the children spend time with their father at [the correctional facility] for one day every six weeks;
(d)the additional considerations contained in section 60CC(3)(a) of the Act, namely the views expressed by the two children via the Family Report dated 21 August 2009.
(e)the fact that the mother had previously consented to interim orders on both 15 December 2008 and 14 April 2009 that granted the children the ability to spend time with the father at [a correctional facility] for one hour a month.
(f)the fact that the paternal grandfather, Mr [V], has throughout, been willing and able to transport the children to and from prison.
2.Her Honour erred in according excessive weight to:
(a)the views of the mother at trial as to the the [sic] overall benefit of the children of spending time with the father;
(b)the ability for the children to maintain a meaningful relationship with their father without having face to face contact with him until his potential release on parole in 2018, when the children will be 16 and 14 years old.

The relevant law

Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the law applicable to the making of parenting orders and the framework for determining them.
Given that the father is incarcerated, he conceded that the children would live with the mother. The father’s application sought that the father and mother have joint parental responsibility for the children. The mother opposed the application and sought an order for sole parental responsibility for the children.
By the time of the hearing, the parties had agreed to orders which provided for the mother to have sole parental responsibility for the children and for the children to live with her. That left for determination by her Honour the question as to whether there should be an order requiring the children to visit their father in prison, and if so, what the frequency of and arrangements for such visits should be.
Her Honour was to be guided by the principle in s 60CA of the Act that when deciding whether to make a particular parenting order, the best interests of the child are the paramount consideration. The objects of Part VII of the Act and the principles underlying those objects are set out in s 60B, which provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

In determining what is in the child’s best interests the court is required to give consideration to the matters in s 60CC. The primary considerations are set out in s 60CC(2) as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are set out in s 60CC(3).
In addition the court is required to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their responsibilities as a parent: s 60CC(4).
This is the framework within which her Honour was required to consider the facts in this case, make relevant findings and come to a conclusion as to what orders would meet the best interests of the children.
The grounds, as relied upon, assert a failure in the exercise of discretion by

her Honour in according insufficient weight to important matters and excessive weight to others.
In determining an appeal against a decision involving a discretionary judgment, as this was, there is a strong presumption in favour of the correctness of the decision. Before an appellate court can reverse a decision of a trial judge founded upon the exercise of judicial discretion, it must be satisfied that the trial judge acted upon a wrong principle or the decision was plainly wrong so that the decision was no proper exercise of the discretion: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513.
Bearing those important considerations in mind we turn to the grounds in this case.

Ground 1(a) - Her Honour erred in according insufficient weight to the primary consideration contained in s 60CC(2)(a) of the Act, namely the benefit to the children of having a meaningful relationship with both of the children’s parents

The father contends, and we agree, that the primary considerations in s 60CC(2)(a) and (b) (set out at paragraph 34 above) are informed by the objectives and principles underlying Part VII of the Act (set out in paragraph 33 above), but as we have already indicated, the result of the consideration by a trial judge of the relevant matters contained in s 60CC(2) and (3) of the Act must lead the judge to the making of an order which is in the best interests of the children. Neither s 60CC(2)(a) nor (b) alone can be dispositive of the question of what is in the child’s best interests.
There could be no doubt that the legislature regards the benefit to the child of having a “meaningful relationship” with both of the child’s parents to be an important factor in ultimately determining what order is in the best interests of the child. This is because it is one of the two primary considerations in the Act, the second being protecting children “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
Before we embark upon a consideration of how this applies in this case, it is useful to observe that one of the objects and principles underlying Part VII of the Act
(s 60B(1)) provides that:
… the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child (emphasis added)
Counsel for the father relied mainly on his written submissions in support of this ground. In his written submissions he set out 11 factors that he identified as being matters which support a conclusion that the children would benefit from spending face-to-face time with the father. The contention of the father is that the first instance judge gave insufficient weight to these matters. The matters relied upon are as follows:
1.The children have a relationship with the father.
2.Prior to the final orders, the children enjoyed seeing the father despite the fact that it was in a [correctional facility].
3.The final orders granting contact via written correspondence does not sufficiently allow for a meaningful relationship to continue.
4.The children and father will be able to interact better with face to face contact.
5.Through spending time with the father, the children will be able to make their own assessment of their father rather than simply adopting the views of the mother.
6.The children will be able to experience for themselves that the offences the father has committed are not the totality of the man, that there are other parts to him.
7.The children will be better able to process and understand the events that have shaped their lives by spending time with the father.
8.The children will be better able to understand their family dynamics and their place in the world through spending up to three hours with the father once every six or eight weeks.
9.It is inevitable that the children will discover the full details of the father’s offending at some point in their life. The impact of this discovery would be lessened if the children had spent time with the father.
10.It is common for children to strongly identify with their parents, and for no contact to be imposed between the children and the father, this could manifest itself in the children forming the erroneous belief that a part of them is shameful and should be denied.
11.The children should see through spending time with the father that he has the potential to rehabilitate himself.
Her Honour had evidence from the parties and witnesses, and had the benefit of a family report prepared by a single expert who was cross examined. In addition an ICL had been appointed to represent the children.
As the relationship between the children and the father, and the benefit to the children from continuing prison visits, was pivotal, we set out in some detail relevant evidence of the single expert Dr W.

The evidence of the single expert

Dr W, who prepared the family report, had the opportunity to interview the mother, the father and the children, and to observe the children with each of the parents. Dr W noted at paragraph 5 of the family report:
… Ms [Desmond] is totally against the children spending any time with their father whilst he is in prison, as she believes it is not an appropriate place for them. She is therefore proposing that Mr [Vigano] remains in contact with the children through correspondence and phone calls only.
When considering the interaction between the father and the children,

Dr W reported at paragraphs 12 and 13:
12.Mr [Vigano] presented as being cooperative, and happy to help with providing information for this report. He also presented as being focused and intent on having regular time with the children, and also very focused on the children’s health and wellbeing, to the point whereby he made constant comments to the children and asked them questions about how and if their mother had treated the particular issue, which appeared to make the children a little uncomfortable at times. Similarly, he hugged the children a lot, and was quite affectionate with them, which would generally be a positive thing, however, it was noticeable that [child X] was a little uncomfortable each time her father touched her, yet he appeared completely oblivious to this and to their discomfort about his questions regarding their health too. To this end, it appeared that Mr [Vigano] may have been so focused on what he was wanting and what he was feeling, that he was unable or unwilling to recognise, adapt, or respond to the children’s cues and/or needs.
13.Mr [Vigano] was also quite defensive when asked why he felt it would be in the children’s best interests to spend time with him, telling the writer that it sounded like she was being negative by asking that question, although he did calm down once the writer took the time to explain that it was a standard question intended to illicit information to provide support for his proposal. He also tended to focus on what he wanted and how it benefited him rather than on the children’s needs and wants, since he talked only about it being good for the children because he was their father, and he did not seem to have considered or recognised the potential impact on the children of having to see him at the prison, and of having to travel so far each fortnight. For example, when asked how prison visits might impact the children, if at all, he stated “I wouldn’t have a clue … they are always happy when they come … and they don’t want to leave … so they must enjoy it … so no … I don’t think it would have any impact”.
Dr W recorded, at paragraph 15:
Mr [Vigano] also reported that he felt it would be beneficial for the children to know both of their parents. He stated that they shouldn’t be away from either parent no matter where those parents are. He stated that he wanted to show them he cares, and that he does love them and does miss them. …
Dr W reported the mother’s attitude towards contact at paragraph 18:
Ms [Desmond] therefore presented as being less than supportive of the children’s relationship with the father, and even admitted that “I was naughty… because I didn’t always send them when they didn’t want to go … I got them to tell [Ms G] (the paternal sister) … sometimes [Ms G] would persuade them … or I would just let one go … then [Ms G] started threatening [child X] … [Child X] didn’t always want to go … [Child Y] did … I just so want to forget him … I bought them up by myself … and now he wants contact after so many years … I have nightmares whenever all of this comes up … he destroyed my life … he nearly killed me … he strangled and beat me … often in front of the children … it has affected all of my children … he is a very violent and scary man”. Ms [Vigano] [sic] also admitted that she used to get upset when she had to send the children when they didn’t want to go, and this would obviously had an impact on the children too, especially since she admitted that she even punched a wall in the house on one occasion because “[Child X] was giving me a look”, namely a look that she didn’t want to go.
Reporting on the children, Dr W said of child X, at paragraphs 21 and 22:
21.[Child X] presented as an intelligent and sensitive girl who was happy to talk to the writer about her parents, and seemed very aware of and sensitive to her mother’s feelings and beliefs about her father, to the point whereby she appeared aligned with her mother, and she articulated that her mother didn’t want her to visit her father, and would in fact become upset and ask her not to go on some occasions.
22.[Child X] reported that although she liked spending time with her father because he was fun and nice, she no longer wanted to visit him because she didn’t like the long drive, and she felt it was boring and quiet when they got there. However, it was interesting to note that when she was asked if she would like to go if her mum wanted her to go, she was very quick to say yes, and she also appeared to enjoy her time with her father for the most part, except when he asked her lots of questions about her health and what her mother had done about it, and when he kissed and cuddled her, and she also reported that she missed him and wished that he could come home and live with them.
And when reporting on child X’s attitude, Dr W said, at paragraphs 23 and 24:
23.This contradictory behaviour seems to stem from the fact that on the one had [sic] she appears to love her father and enjoy his company, yet on the other hand she is very aware of what her mother thinks and feels, since she reported that her mother did not like it when they went to see their father, and she stated “my mum gets upset when we are going because she doesn’t want us to go … she misses us when we go there … she tells me she doesn’t want us to go … she says don’t go because I will miss you … I say … I have to go mum … she used to say this … but now she doesn’t”.
24.[Child X] also reported that her father often asks them to communicate messages to their mother, that he often asks them questions about her, and that he always asks lots of questions about their health and continually talks about all the things her mother should have done, but hasn’t. [Child X] admitted that she often feels uncomfortable when her father asks her questions or tells her to pass on messages to her mother, and she also told the writer that she feels uncomfortable whenever her father touches or kisses her, although she didn’t know why. However, I suspect that it might have something to do with the opinions she may have formed as a result of her mother telling her that her father was in jail for doing naughty stuff, and that her mother no longer liked him because of the naughty stuff he had done to some people. I believe that [child X] might also get confused about the mixed messages she receives; since her father reportedly tells her that he loves her mother and that she should pass this message on to her mother, whilst her mother allegedly says she doesn’t like him and she no longer wants to speak to him or have anything to do with him.
When reporting on child Y, Dr W said, at paragraphs 25, 26 and 30:
25.[Child Y] presented as a reasonably happy boy who was quite talkative with the writer, and happy to talk about his parents. Whilst [child Y] also appeared to have the same impression of his father as being naughty and bad, he did not seem to be as aware of or sensitive to his mother’s beliefs and attitudes about his father.
26.[Child Y] made it very clear that he really enjoys spending time with his father, that he likes going to the prison to see him, and that he would like to have more time with him. …
…
30.[Child Y] also reported that his mother often tells them not to go to see their father. After he made this stated [sic] he then stated he did not want to see his father anymore, but he soon changed his mind again and said he did, and he was certainly very happy and contented when he was observed spending time with him.
Dr W concluded, at paragraph 31:
Despite having spent only small amounts of time with their father, [child X] and [child Y] appear to have formed a positive bond with him, as well as their mother, interacting with them both comfortably and confidently for the most part. However, as already mentioned above, both children, but especially [child X], appeared to be quite uncomfortable when their father continually asks them questions about their health, and then criticises
Ms [Desmond] for not taking them to the doctor or getting a particular condition/issue attended to appropriately as far as he is concerned. [Child X] was also noticeably uncomfortable whenever her father kissed or cuddled her, as despite allowing him to do it, she did not respond back, but instead appeared to almost freeze in place, she often did not let him cuddle her fully, and she attempted to manoeuvre away whenever she could. Again this seems more about the beliefs she holds about her father because of what she may have been told, as opposed to anything her father has actually done, as she was reportedly only 18 months of age when he was incarcerated.

Dr W was critical of the mother’s attitude at paragraphs 43 and 44:
43.Whilst I understand why Ms [Desmond] may have concerns about
Mr [Vigano], given his alleged criminal behaviour, and whilst I understand her desire to teach the children right from wrong so that they do not follow in their father’s footsteps, and whilst I understand how negative she may feel about him, especially if it is indeed true that he has been quite violent towards her in the past, which seems likely based on what the parties both reported during interview; the reality is that this does not mean that Ms [Desmond] should actively sabotage the children’s relationship with their father, as they have a right to know him, and to experience the positive parts of his personality and life, and they also have a right to know the paternal family. Furthermore, one of the key components of being a competent parent is the ability to be able to support your child’s relationship with the other parent, and based on
Ms [Desmond’s] reports, actions, and behaviours, it does not seem she is able or willing to do this at this time.
44.Of significant concern to the writer is the fact that both children appear to be so sensitive to, and aware of their mother’s thoughts and beliefs about them spending time with their father, and [child X] in particular appears to be confused and torn since she appears to be aligning herself with her mother on the one hand, yet seems to enjoy her time with her father on the other hand, and Ms [Desmond’s] denigration of Mr [Vigano], and Mr [Vigano’s] constant focus on the children’s health and wellbeing and similar denigration of Ms [Desmond] is certainly creating and maintaining this emotional turmoil for [child X]. The fact that her parents continue to place her in this position is quite disturbing, as it suggests that they have no idea how damaging it is for her.
However, Dr W noted the difficult position in which the children are put by the father’s attitude at paragraphs 45 and 46:
45.It is also concerning that Mr [Vigano] appears to be so focused on his own needs and wants that he is unable to recognise or address the children’s cues and emotional needs, and appears unable to place their needs above his own. His tendency to over dramatise and find fault with everything is also concerning, as again it puts the children in a very difficult position, and again, he simply does not appear to be aware of this.
46.The children’s best interests are of paramount concern, and they must be elevated above all else. In this case it seems that both parents have acted in ways that have compromised the children’s emotional and developmental wellbeing, and certainly caused distress and anxiety in [child X], and potentially for [child Y] in the future as well, and certainly have placed them in a difficult position, whereby the [sic] may feel the need to choose between them or align themselves with one or the other. Moreover, Mr [Vigano’s] criminal history is concerning in the sense that it does not set a positive example for the children, and it has certainly resulted in him being unavailable to and for his children.
Dr W considered the value of the children’s relationship with their father at paragraphs 48 and 49:
48.Ms [Desmond] has made it clear that she believes it is not in the best interests of the children to spend time with their father whilst he is incarcerated, mainly because he has not previously had a relationship with the children and is limited due to his incarceration in being able to have a future relationship with the children until he is parolled [sic], when they will already be in their late teens. This is certainly a compelling argument in one sense, as it appears that there has not been a pre-existing relationship between the father and the children until recent orders, and we therefore need to look at the purpose and benefit to the children of spending time with their father, what the expectation of the children is, whether or not this is manageable for them, and even the purpose or motivation behind Mr [Vigano’s] apparently sudden interest in spending time with the children.
49.Based on what was seen of Mr [Vigano] with the children he appeared overly focused on them and the issue of their health, to the point whereby this made the children feel uncomfortable, and this obsessive kind of focus is quite common for incarcerated individuals, as their children and their visits can become a highlight and a source of comfort and excitement in their otherwise mundane lives because of the nature of incarceration, but the reality is that these visits need to be beneficial for the children and not just to the parent. Moreover, in general terms, it is the parent that is usually responsible for developing and maintaining the relationship with their children, and for doing the work involved in this, but in this case it will be the children that will become responsible and will have to do the work, since they will be exposed to an onerous schedule involving anywhere from three to five hours travel and processing time in order to see their father for either two or four hours, depending upon where he is incarcerated.
Dr W then concluded on this issue at paragraph 52:
… [I]t is therefore my opinion that the children’s relationship with their father should be maintained now, so that the opportunity of further development and more appropriate interactions early next year when
Mr [Vigano] is transferred to [another correctional facility] is capitalised upon…
Dr W then recommended that the children spend time with their father and their father’s family once every six weeks.

The oral evidence

In relation to the effect of the children not having an ongoing relationship with their father at the time when they ultimately learned of and realised the extent of their father’s offences, Dr W said:
I think there’s positives and negatives to both. If they’re seeing their father at least they will be able to see that that’s just not the totality of the man; that there is other parts to him. If they’re not seeing their father they may not, they will probably have their mother’s version of him and also whatever they already know about him and obviously, what’s in the papers. So I guess it depends on how it’s handled though, when they do find that out and whether they ask questions and who they ask questions and who, who talks to them about it but certainly, if they have a picture of their father in their mind already that he’s positive it will probably be less of an impact for them, but at the same time, they would still have a lot of confusion so it would have to be still very, like dealt with very appropriately.
(transcript 14 May 2010, page 137, lines 30 - 40)
As to the effect on the children if they stop seeing their father, Dr W said:
Now that they actually have a relationship with him - I think it’s a different story if they didn’t begin a relationship, I think that’s very different; can handle that in a different way but now that they have begun a relationship with him I think they would be quite confused as to why it has suddenly stopped. I think they might actually see him as worse than what he actually is because it’s stopped and see that as like a form of punishment for either themselves or for - that they might see him as a worse man than what they might have seen him previously because it’s been stopped, if that makes sense. Again, it depends on how it’s explained to them and why and, and, and at what level they can understand.
(transcript 14 May 2010, page 138, lines 17 - 25)
Counsel for the ICL then had the following exchange with Dr W:
My instructor, the independent children’s lawyer saw the children Tuesday just gone and they have presented as very - when asked about their family dad was part of their family. And they presented - they had no idea of her role and to the mother’s credit no understanding of these proceedings that are on foot?---Yes.
That’s a positive isn’t it? --- It is a positive, yes.
And they seemed totally unaffected by all this - not just the proceedings but all the issues that the adults are very concerned about?---I, I found that there was some affects when I interviewed them and when I observed, mostly it was, it was thinking dad was bad and wondering whether they should go or not. I found with the little girl she was more, not afraid of her dad but she, she was a bit more aware of that dad shouldn’t be near her, I suppose. That’s probably the sense that I got. At the time she really enjoyed his company and actually enjoyed being with him and enjoyed the time with him but she was also a little bit uncomfortable at times.
(transcript 14 May 2010, page 138, lines 33 - 47)
As to inappropriate behaviour by the father with the children which had been identified in the family report, Dr W said:
When Mr [Vigano] was inappropriate with the children and voiced those concerns about their mother’s care of them and you said, “This is inappropriate” and he stopped immediately. Do you hold that hope that he may take heed of that in future and refrain from - or talking to the children in that manner?---I hold out hope but I’m not sure that he will be able to do that to be honest.
If he’s allowed to do that what emotional affect will it have on the children?---It will cause them distress; it will cause them confusion; they will probably be anxious each time they go there and it will be, I suppose, you know, they will also have the happy times but they will still have that anxiety there. They did, they did enjoy their time with their father but there was still that anxiety there. So if there was some kind of supervision by a guard or something like that that might be a possibility but if he couldn’t stop saying those kind of things to the children well, I think the children would be quite distressed.
And probably be reluctant to go?---Yes. That’s a possibility.
(transcript 14 May 2010, page 139, lines 44 - 46 and page 140, lines 1 - 13)
As to the question of the effect of learning about their father’s crimes,

Dr W said:
I think having the contact actually just puts it more into perspective for her because you see the good side of him and she’s just not seeing that just the bad side of him. I think that will give her a better sense of self because she can then relate some of the good parts of her with him. But then, of course, there’s always going to be that confusion and, and uncertainty about the bad parts of him and how that relates to her. But I do think that if - it would be different if she didn’t already have a relationship with him, but the fact that she has a relationship with him now I really do think that if she stops she’s probably going to have a more of a negative view of him than - if she’s told that than if she sees those positive sides of him as well, yes.
(transcript 14 May 2010, page 140 lines 42 - 47 and page 141, lines 1 - 3)
Dr W identified other positive features of the contact, particularly for child X:
Yes. So basically, just, just the, you know, he was showing her affection and, and he was giving her attention and she was really, sort of, enjoying that, that focused attention, that contact, his enjoyment in her, just, just the general talk, you know, it was obvious that he loved and cared for her and she could - it looked like she could sense that. So they’re the positive things that I’m talking about.
(transcript 14 May 2010, page 141, lines 6 - 11)
Counsel for the mother cross examined Dr W and this exchange occurred:
And would you say that you can reasonably certain that the children, or either of them, will not be adversely affected by visiting their father?---I couldn’t say that, no. But from what I did see there was lots of positives as well as those negatives so they, they did get enjoyment; they did, they did enjoy being there so that’s what I was, I suppose, basing my opinions and recommendations on.
And then we’ve got the next issue of them discovering the nature of his offending and what impact that will have on them?---That’s correct. But I think that’s going to happen regardless.
Yes?---Yes. But as we discussed before it might happen in different ways or impact them in different ways.
And [child X], perhaps more so than [child Y], but, you know, she will face changes over the next however many years and she’s going to move from being a child to a teenager and her relationship with her father regardless is going to be fraught with uncertainties I would suggest regardless of whether she goes or whether she doesn’t?---I agree. The nature of his crime there’s going to be uncertainty there; there has to be and there will be. It’s more how it’s dealt with than, you know, whether it’s mitigated by a positive relationship by the father or no relationship and who’s telling her and, and what she’s being told. So yes, there’s definitely going to be some uncomfortableness anyway.
(transcript 14 May 2010, page 149, lines 22 - 43)
In answer to some questions by her Honour about the mother’s negative attitude to the contact, the following exchange took place:
They can’t live with their father. Their mother is sabotaging - to use the word in your report- their “relationship” so what - and from her perspective, or his violence to her; the nature of his crimes if that can’t be stopped where do you think that places the children in terms of them going to the prison?---Well, that came out, not so much for [child Y] but it certainly did for [child X] that all of that’s been there and she’s had all that already and yet despite herself she still kind of enjoyed herself. So I felt that, on balance, it was more positive for her than negative. But look, if neither of them can stop, sort of, denigrating the other and, and putting the child in these circumstances well, the child’s going to be - both children are going to be really emotionally distressed, anxious, they might, they’re likely to have a range of emotional psychological behavioural problems. They’re likely to have like, you know, problems with relationships themselves or social - later with their peers; with other adults. So there’s a range of negative, I suppose, consequences or possible consequences of both parents constantly denigrating the other. I mean, I said before, you know, both parents - the children have both parts, sorry, both parents as part of them and, you know, they tend to get confused if, if one hates the other and they, they tend to, kind of, hate that part of themselves, if that makes sense, so, and they get really quite confused if they’re, if they’re not, if one parent is not supporting the other. I don’t, I don’t know the answer, I don’t think that either one of them can be supervised that religiously, I suppose. I think it’s going to happen because of their attitudes.
(transcript 14 May 2010, page 150, lines 24 - 44)
In further cross examination by counsel for the mother Dr W said:
… I think that I covered that in my report that, you know, within the prison system there’s going to be positives and negatives for these children and, you know, looking at, based on what I observed of these children with their father they actually did get a lot of positives out of that as well as there was lots of negatives too so on balance - - -
Yes, lots of negatives?---On balance that’s what I was looking at. On balance do we or do we not continue with these positives and, I suppose, that’s something for the court to decide. I mean, I looked at the benefits and the negatives I think.
(transcript 14 May 2010, page 159, lines 33 - 41)
When asked about the anxiety for the mother, Dr W said:
Does it affect her parenting?---Well, obviously it does. I mean, my concern is, is what he’s projecting onto the children, her anxiety and her distress is being projected onto the children so that’s my concern. And I, I’d understand that she has obviously had a difficult time but, you know, she’s the parent, they’re the children, she needs to actually learn ways of actually keeping that to herself and not projecting that onto the children.
One way that I would suggest that that concern would be greatly reduced is if the children didn’t have to go to the gaol?---But who’s that for, for her or for the children?
It has both effects doesn’t it?--Well, but you’re suggesting that because she can’t control her anxiety that the children shouldn’t go to the gaol. I’m saying that yes, - - -
I’m suggesting that it impacts her parenting and that impacts the children?---It does impact her parenting, yes. And that does impact but that’s her not being able to manage her own emotions and manage, or get the help possibly that she needs to actually manage her emotions. That’s a different thing that I see anyway to whether or not the children have benefit from seeing their father. They’re two different issues for me.
(transcript 14 May 2010, page 162, lines 39 - 44 and page 163, lines 1 - 14)
Finally in response to questions from counsel for the mother, Dr W said:
Well, I think that, you know, when we’re looking at these family reports there’s the rights of the children which should come ahead of the rights of the parents to see their children. And I think I mentioned that in, in the report. Like basically the father wants to see the children but it needs to be about what’s good for the children and, and, you know, looking at whether it’s onerous travel and making sure that, you know, it’s for, I suppose, longer periods and less frequency and things like that so that it’s all about the children and not about the parents.
(transcript 14 May 2010, page 164, lines 14 - 21)
In an exchange with counsel for the ICL, her Honour characterised the mother’s evidence in this way:
I think her evidence is more than that. Her evidence is: I have never been happy for him to see them. It causes me distress. They do not wish to go. He is locked up for a serious offence. He bashed me and treated me dreadfully, and I can see no benefit at all in them having a meaningful relationship with him.
…
And he is locked up for a very long time, and why should the children be forced to attend at a place they don’t wish to attend, and if I consented in the past as I have, I felt put upon to so consent. I felt I had no choice. But I never thought it was in their interests. I think that’s – because of what he did to me, because of the nature of the offence, because of the time in which he’s incarcerated and other matters. That seems to be her evidence.
(transcript 29 July 2010, page 203, lines 45 - 46 and page 204, lines 1 - 11)

Discussion

The Act does not define “meaningful relationship” and as the Full Court said in McCall & Clark (2009) FLC 93-405 at paragraph 109, nor does it provide any criteria to assess how parents either have or should have a “meaningful” involvement in the child’s life.
In McCall & Clark (supra) the Full Court addressed in some detail a number of single judge decisions in which the question of “meaningful relationship” had been considered, and said at paragraphs 118 to 120:
118.It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of final hearing.
120.We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.

The Full Court concluded at paragraph 122:
In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
The matters raised by the father’s counsel in his summary of argument at page 2 detail the positive aspects of the relationship. However, there are negative aspects to the continuation of the relationship to which we have already alluded. The issue is whether her Honour gave sufficient weight to the positive aspects of the interactions between the father and the children in considering whether there could be a meaningful relationship which would be of benefit to the children by continuation of face-to-face visits at the prison.
We are mindful of the constraints upon appellate intervention in relation to discretionary judgments. As the High Court said in House v The King (1936) 55 CLR 499 at 505:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so...
We are mindful also of the comments of Kirby J in CDJ v VAJ (1998) 197 CLR 172 at paragraph 186, subparagraphs 1 and 2:
A number of general propositions may be stated:
1.Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2.Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction. (footnotes omitted)
In Gronow v Gronow (supra), Stephen J said at 519 - 520:
While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
We are conscious that in this matter there were identified positive aspects for the children continuing a face-to-face relationship with their father posited by Dr W, the single expert, and we are mindful that the ICL supported face-to-face contact, and supported this appeal. We are satisfied however that her Honour was aware of all of the positive aspects of the interactions and we are satisfied that she weighed them appropriately against the negatives. We are also mindful of the fact that her Honour had evidence about at least one issue that the family reporter did not. That is the allegation which her Honour found to be unsubstantiated, made by the father’s sister that the mother’s present partner had sexually abused child Y. As it would continue to be necessary for the father’s family to transport the children to visit their father, her Honour was concerned that the “bitter cessation” of the mother’s relationship with Ms G was of significance.
Her Honour was not obliged to act on the recommendation of the family reporter and again, we are mindful of the constraints on an appellate court as set out by Stephen J in Gronow v Gronow (supra) at 519 - 520:
Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight…
It seems to us that the matters for and against contact in this case were relatively finely balanced and it may be a case in which as Kirby J said in CDJ v VAJ (supra) at paragraph 186:
They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction. (footnotes omitted)
Her Honour came to her decision after seeing and hearing the parties over two days of evidence, and after taking into account the evidence both in written form and in answers in cross examination of the expert. Her Honour placed considerable weight on the fact that the mother was responsible for caring for the children and the disruption to the family life established by the mother for the children if face-to-face visits with the father in prison continued. She took into account that the visits would need to be facilitated by the father’s family, and the animosity towards the mother from the father’s family. Her Honour concluded that the mother was the sole provider of physical, emotional and financial support to the children and she needed to be supported in that role so that she functioned optimally and was able to promote the children’s best interests. Her Honour did not consider that would happen if face-to-face visits for the children with their father continued, and it would thus not be in their best interests for an order to be made as sought by the father and supported by the ICL.
Her Honour did not consider the fact that the children were already visiting their father to be the overwhelming factor and, in our view, in focussing on the future, was mindful that the Act required she be satisfied that there was “benefit” to the children in a continuation of the relationship, in that form. Given the “nature” of this jurisdiction as described by Kirby J in CDJ v VAJ (supra) and the advantage of the trial judge of seeing and hearing the parties (Gronow v Gronow (supra)), we are not satisfied that appellate interference with the exercise of her Honour’s discretion in this case is warranted.

Ground 1(b) - Her Honour erred in according insufficient weight to the submissions of the ICL at trial, namely that it was in the overall best interests of the children to spend time with their father at [a correctional facility] one Sunday every six weeks

In support of this argument it is not asserted that her Honour was not aware of the position of the ICL nor cognisant of the submissions in support of continuing face-to-face contact between the children and the father as urged by the ICL. This ground also asserts that her Honour failed to accord sufficient weight to those submissions.
Having referred extensively in relation to ground 1(a) to the various positives and negatives that existed for the children in the father’s proposal, and having concluded that her Honour was not in error, it becomes difficult for the appellant to succeed on this ground. This ground is really a repetition of the matters in ground 1(a). The only basis on which error could be asserted having regard to our decision in relation to ground 1(a) is if her Honour is obliged to accept the submissions of the ICL or to give them some greater weight than the submissions of others.
It has never been accepted that there is any obligation on the Court to give particular weight to the submissions of the ICL: Marvel v Marvel (2010)
43 FamLR 348. It is clear that her Honour was aware of the position of the ICL (reasons for judgment, paragraph 11) and that the ICL had an opportunity to make submissions in support of her application. As the error alleged is one of weight and no other error on behalf of her Honour is asserted, this ground must fail.

Ground 1(c) - Her Honour erred in according insufficient weight to the evidence of the family report writer at trial, namely the recommendation that the children spend time with their father at [a correctional facility] for one day every six weeks

Counsel for the ICL supported this ground, submitting that her Honour failed to analyse the family report or to give reasons for rejecting the report writer’s recommendations, as the Full Court has said is required: Newlands v Newlands (2007) 37 Fam LR 103 at paragraphs 97 to 100.
Whilst the final determination of what is in the best interests of the children is a matter for the trial judge, the failure to follow the recommendation of an expert generally requires some explanation and a demonstration that the matters raised have been properly taken into account: Napoli & Napoli [2004] FamCA 706; Lambert & Lambert [2002] FamCA 537.
The father’s submissions in support of this ground asserted the following:
The Family report writer, Dr [W], was cross examined in regard to her recommendation that the children spend time with the father for up to three hours once every six weeks. In particular the report writer was questioned as to whether she still maintained her recommendation having read; the father’s criminal history, [the judgment of the Appeals Court of the Victorian Supreme Court] and the reports of [Drs J, W and B]. Dr [W] gave evidence that she was aware that the father was in prison for several offences including rape at the time of writing the family report and that having read the abovementioned material, she still recommended that it was in the overall best interests of the children to spend time with the father. [errors in original]
This submission does not give credit to the much more nuanced and equivocal answers of the family reporter notwithstanding that Dr W ultimately adhered to the view that there should be face-to-face contact. We have dealt with the evidence of the report writer in some detail in relation to ground 1(a) and we do not need to repeat those matters. Suffice to say that although the recommendation did not change, much more equivocation about her findings emerged in Dr W’s cross examination.
Her Honour set out some of Dr W’s evidence at paragraphs 15 and 16 of her reasons for judgment, particularly Dr W’s concession that “she could not be reasonably certain that the children would not be adversely affected by continuing to see their father”. In addition, her Honour noted that Dr W’s recommendations that the children spend an overnight period with the paternal family altered in the witness box after hearing evidence as to Ms G’s drug use and evidence as to her de facto partner (reasons for judgment, paragraph 16). At paragraph 17 of the reasons for judgment, to which we have already alluded, her Honour indicates her concern about material that emerged from the hearing as to the “bitter cessation” of the relationship between the mother and Ms G, the father’s sister.
We accept that her Honour did not analyse in detail the report of Dr W in her reasons for judgment but answers in cross examination had qualified parts of the report. Her Honour was however aware of Dr W’s recommendations. It can be discerned from paragraphs 15 and 16 of the reasons for judgment that notwithstanding Dr W’s report, her oral evidence in cross examination indicated a more equivocal view about whether the children would be adversely affected by continuing to see their father and thus, by extension, whether such an order would be in their best interests.
We also consider that in paragraph 16 of the reasons for judgment, as set out in paragraph 35 of this judgment, her Honour was alluding to matters that had become apparent from oral evidence which were not known to the reporter at the time she completed her report. These were matters within the province of the trial judge who had to assess all of the evidence to arrive at a decision as to what was in the best interests of the children.
We cannot discern any error by her Honour in her analysis of the evidence nor in the ultimate conclusions about best interests she drew from it. Accordingly this ground must fail.

Ground 1(d) - Her Honour erred in according insufficient weight to the additional considerations contained in s 60CC(3)(a) of the Act, namely the views expressed by the two children via the family report dated 21 August 2009

The court, in determining what is in a child’s best interests, is required to consider the additional considerations set out in s 60CC(3) including “any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views”.
A trial judge is not bound to make a decision in accordance with the views of the child or children: H v W (1995) FLC 92-598; R v R (Children's Wishes) (2002) FLC 93-108. In this case it must also be remembered that the children were aged 8 years and 6 years respectively.
Her Honour had evidence about the children’s wishes from Dr W and from each of the parties. In paragraphs 21 to 24 of her report, Dr W set out child X’s views and her explanation of the contradictory behaviour.

Dr W was alert to the pressure put on child X by the father, which she dealt with at paragraph 24 of her report where she said:
[Child X] also reported that her father often asks them to communicate messages to their mother, that he often asks them questions about her, and that he always asks a lot of questions about their health and continually talks about all the things her mother should have done, but hasn’t. [Child X] admitted that she often feels uncomfortable when her father asks her questions or tells her to pass on messages to her mother, and she also told the writer that she feels uncomfortable whenever her father touches or kisses her, although she didn’t know why. …
Dr W opined that:
… [child X] might also get confused about the mixed messages she receives; since her father reportedly tells her that he loves her mother and that she should pass this message on to her mother, whilst her mother allegedly says she doesn’t like him and she no longer wants to speak to him or have anything to do with him.
In relation to child Y, who was 5 years of age at the time Dr W spoke with him, she reported at paragraph 26 that:
[Child Y] made it very clear that he really enjoys spending time with his father, that he likes going to the prison to see him, and that he would like to have more time with him.
Dr W’s observations of child X and child Y at paragraph 31 of the family report accorded with their respective views as conveyed to Dr W.
In cross examination, Dr W said to the ICL:
… I found that there was some affects when I interviewed them and when I observed, mostly it was, it was thinking dad was bad and wondering whether they should go or not. I found with the little girl she was more, not afraid of her dad but she, she was a bit more aware of that dad shouldn’t be near her, I suppose. That’s probably the sense that I got. At the time she really enjoyed his company and actually enjoyed being with him and enjoyed the time with him but she was also a little bit uncomfortable at times.
(transcript 14 May 2010, page 138, lines 41 - 47)
Further, in cross examination, when asked by counsel for the father about whether child X felt a level of discomfort because of what had been told to her, Dr W said:
I think it’s from what she has been told because the reason I think that is because there were times where she would forget what she was told and she would actually look like she was really quite enjoying herself but then she would - he would get near her and she would, sort of, uncomfortable again or he would ask her a question and she would look uncomfortable again so, I do think it’s from what she’s been told, yes.
(transcript 14 May 2010, page 143, lines 8 - 13)
In response to some cross examination by counsel for the mother, this issue was raised again:
But you’ve also said that her father’s saying things, asking about her health in an incessant sense and passing on messages to her mother via her and acting in such an overt way would also be distressful in and of itself, nothing to do with client. You gave that evidence as well didn’t you?---That’s correct. If he questions her about the health issues [child X] was seeing that as a criticism of her mum so yes, that was making her uncomfortable.
(transcript 14 May 2010, page 148, lines 30 - 35)
Further in cross examination counsel for the mother asked Dr W whether she could be reasonably certain that the children, or either of them, would not be adversely affected by visiting their father. In response

Dr W said:
I couldn’t say that, no. But from what I did see there was lots of positives as well as those negatives so they, they did get enjoyment; they did, they did enjoy being there so that’s what I was, I suppose, basing my opinions and recommendations on.
(transcript 14 May 2010, page 149, lines 23 - 26)
In cross examination of the mother, counsel for the father had this exchange:
So the children have had face to face contact for a year and a half now subject to your compliance. Don’t you think the children will be confused and disappointed if that was to stop automatically after today’s hearing?---No, I don’t.
What leads you to that belief?---Because if [child Y] was willing to sort of go to the prison before, [child X] wasn’t so reluctant, but now [child Y] and [child X] do not wish to go anymore, so I believe that’s how they feel, so no I don’t believe.
(transcript 29 July 2010, page 183, lines 35 - 41)

Shortly after that exchange the mother said, “It’s not their wishes to keep attending there, so” (transcript 29 July 2010, page 184, lines 21 - 22).
Then the following exchange with counsel occurred:
Is it not their wishes or not your wishes?---It’s my children’s. I do ask them, “Do you wish to go to the gaol and see your father?”
Do you ask them other questions, like whether they’d like to eat their vegetables or go to bed at a certain time?---No, they’re made to eat their vegetables and have a bedtime.
(transcript 29 July 2010, page 184, lines 24 - 29)
Again:
But the situation as it stands is not really about the best interests of the children, is it? It’s about you not wanting to go and about punishing - - -?---No, it’s got – my children tell me they don’t want to go. They don’t want to go.
But when they come back, they don’t seem affected or saddened by it. They don’t go kicking and screaming, do they?---No.
They go willingly to see the father?---I told them they have to go, so they have to put up with it, don’t they? They have to. I’ve told them I will be in trouble. They love me dearly. They don’t want to see me locked up in gaol, okay?
(transcript 29 July 2010, page 197, lines 27 - 36)
When counsel sought to ask further questions about this matter her Honour intervened, saying:
You’ve gone through this. You’ve asked this a number of times, and what she says is the children have told her they don’t want to go. But yes, they’re not kicking and screaming.
(transcript 29 July 2010, page 198, lines 8 - 10)
In her reasons for judgement, paragraph 11, her Honour said:
The mother’s evidence is essentially that the children do not want to visit their father in prison. She claims they are carefree, happy children not saddened by their father’s predicament and should be allowed to live as normal a life as they can. She claims further the emotional cost to her of having the children attend is high and affects her ability to function and parent effectively.
It is clear that her Honour accepted the mother’s evidence in relation to the children’s wishes as she was entitled to do. The passages to which we have referred indicate that the mother was not challenged about the evidence itself.
However her Honour’s conclusion as to the children’s best interests was much broader than just their views, as paragraph 20 of her reasons for judgment indicates. It took into account the disruption to the family life including of the mother and her new partner, the importance of supporting the mother as the sole provider of physical, emotional and financial support to the children, the mother’s view that there was no benefit to the children or herself in the pursuit of any relationship with the father until he was released, and Dr W’s view that she could not be certain that the children would not be adversely affected by continuing to see their father.
Accordingly we are not satisfied that her Honour erred in the exercise of her discretion by giving insufficient weight to the views expressed by the children set out in the family report.

Ground 1(e) - Her Honour erred in according insufficient weight to the fact that the mother had previously consented to interim orders on both 15 December 2008 and 14 April 2009 that granted the children the ability to spend time with the father at [a correctional facility] for one hour per month

The evidence indicated that following the father’s incarceration in late 2003 and despite the mother’s allegations of previous violence perpetrated against her by the father, the mother visited the father in the prison until late 2004 hoping that the relationship could be “sorted out” with the father. On many occasions she took the children with her.
Her evidence was that she stopped these visits and all communication with the father in late 2004, consequent upon searching on the internet and reading about the father’s crimes. This evidence was not the subject of challenge at the final hearing.
In February 2006 the mother had a child protection application filed against her because of, among other things, her amphetamine addiction. The

Children’s Court proceedings, which ran for about two and a half years, involved the children being placed under a supervision order.
In late 2006 the mother attended a Children’s Court mediation and asserted that she had mistakenly agreed to the children spending time with the father at prison once per month.
Later, during the Children’s Court proceedings in May 2008, the mother entered into a six month undertaking that included her taking the children to a correctional facility once per month.
However, on 15 December 2008 following the conclusion of the

Children’s Court undertaking in November 2008, and later on 14 April 2009, the mother entered into interim consent orders in the Federal Magistrates Court to enable the children to spend time with the father at a correctional facility once per month. Her Honour indicated, at paragraph 17 of the reasons for judgment, why she did not propose to rely upon the previous consent orders as being the basis for making orders for the future and said:
…The reason for her consent to earlier orders was a combination of her ongoing friendship with Ms [G], the paternal aunt, and her feeling of having no choice in her dealings with the Department of Human Services. The revocation of her consent and bitter cessation of her friendship with Ms [G] are both quite longstanding. I accept that the reality is that she has not thought it in her children’s best interests to visit their father in jail for the entire time that they have done so.
It is clear in our view that her Honour took into account the mother’s previous consent but, for the reasons that her Honour set out in paragraph 17, did not believe it should be given weight. In our view this is a classic exercise of

her Honour’s discretion and unless any error in the fact finding by her Honour can be demonstrated, that failure to accord greater weight to this factor does not reveal appealable error.
There was no challenge to the facts as asserted by her Honour and thus this ground must fail.

Ground 1(f) - Her Honour erred in according insufficient weight to the fact that the paternal grandfather, Mr V, has throughout, been willing and able to transport the children to and from prison

Counsel for the respondent submitted to us transportation of the children was not a real issue. Her Honour noted correctly, at paragraph 18, that transportation of the children to visit their father in prison required a commitment on the part of the children, their mother, their paternal aunt and their paternal grandfather. It was common ground that the father’s sister and the paternal grandfather were willing and able to transport the children to the jail and on many occasions and pursuant to court orders they had done so. In particular the interim orders in relation to contact with the father made on

14 May 2010 provided for the grandfather to collect the children from the mother’s home and return them to her at the conclusion of the visit.
Paragraph 20 of her Honour’s reasons for judgment made it clear that

her Honour was concerned about the children’s best interests in a manner that went well beyond their physical transportation to and from their father and involved a much more holistic consideration of the household in which the children resided with the mother and her partner, and the mother’s role as the sole provider of physical, emotional and financial support to the children.
It is clear that her Honour was well aware that the paternal grandfather was willing to do the transportation of the children but this was not the issue, nor even an issue on which the case turned, and hence the ground cannot succeed.

Ground 2(a) - Her Honour erred in according excessive weight to the views of the mother at trial as to the overall benefit to the children of spending time with the father

Insofar as ground 1 asserted that her Honour failed to give sufficient weight to various matters, ground 2(a) asserts that she gave too much weight to the views of the mother.
Counsel for the father submitted that “[h]er Honour erred in preferring the evidence of the mother regarding the children’s wishes over the independent evidence of the family report writer”. In further support of this ground, counsel for the father submitted that the issues at first instance concerning the potential for the children to be exposed to harm through spending time with the father at prison focussed on “the father’s criticism of the mother’s parenting, the child [X]’s awkwardness regarding the father being physically affectionate towards her and the mother’s sabotaging of the children’s perception and relationship with their father”.
We think this is a somewhat superficial analysis of her Honour’s judgment and of what lead her to conclude that the best interests of the children were met by refusing face-to-face contact.
Counsel’s submissions then deal with the fact that there was no assertion that there would be any physical violence to the children during prison visits and that “[i]f there is no real threat of family violence during the prison visits then the focus should be on the benefit of the children maintaining a meaningful relationship with the father”.
We think this characterisation is a misunderstanding of s 60CC(2). Although the two primary considerations in s 60CC(2) are, (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; one is not always dependent on the existence of, or lack of, the other.
The court must always consider the benefit of a meaningful relationship when considering the best interests of the children. However if the court finds there are benefits to the children in having a meaningful relationship then the court would need to consider whether that would give way to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. However a finding that there is a benefit to the child of having a meaningful relationship with one of the parents is not dependent simply on lack of danger of physical or psychological harm.
Sub-section (a) of s 60CC(2) stands on its own. If the court is not satisfied that there is a benefit to the children of having a meaningful relationship then whether or not there is a need to protect the child from physical or psychological harm would not necessarily need to be considered. Certainly the fact alone of an absence of physical or psychological harm does not of itself lead to a conclusion that there is a benefit to the child in having a meaningful relationship.
We do not agree with the submissions of counsel for the father that there is an absence of a risk of physical or psychological harm in this case. Whilst
her Honour was more concerned about the benefit to the children of the relationship, there is no doubt that the effect of the what the mother described as “horrific domestic violence” perpetrated upon her and the children by the father was a matter of concern to the mother albeit that the father is now incarcerated.
Her Honour accepted the evidence of the mother as to the trauma it still occasioned her. Simply because the father is incarcerated and the possibility of physical harm to the mother does not presently exist, it does not remove the element of psychological harm to the mother and it affects the life of the whole family when the mother is confronted by a requirement that the children visit the father in prison, as her Honour found in paragraph 20 of her reasons for judgment.
Her Honour considered, as she was required to do, whether there was a benefit to the children of having a meaningful relationship with the father. Her Honour noted Dr W’s observations that child X was “uncomfortable with the father” and the father’s concession that he could play no real part in the children’s lives. At paragraph 19 of the reasons for judgment, her Honour said that the visits have enabled the children to see the father and know he exists but provide little else.
Her Honour dismissed the father’s application having regard to the mother’s necessity to fulfil her parental responsibilities in the absence of any meaningful contribution on the part of the father. While her Honour certainly took account of the views of the mother as to the overall benefit to the children of spending time with the father, it was not the mother’s views alone which lead her Honour to conclude as she did. The whole of the mother’s parenting encompassing the responsibility as a provider of physical, emotional and financial support to the children coupled with the mother’s past experience of the father and his significant violence to her, and what her Honour found was her increasing anxiety levels now creating a form of trauma as a result of prison visits, all informed her Honour’s decision.
We also do not think it is correct to characterise her Honour’s decision as “preferring the evidence of the mother regarding the children’s wishes over the independent evidence of the family report writer” as was submitted.
The report writer acknowledged that child X was ambivalent about visiting her father but opined that it was an ambivalence affected by the mother’s attitude towards the father and to the ongoing face-to-face contact. Her Honour acknowledged that there were positive benefits to the children in seeing the father but these had to be weighed against negatives including the need for the mother’s sole parenting of these children in a sense to be supported.
We do not find any error in this ground.

Ground 2(b) - Her Honour erred in according excessive weight to the ability for the children to maintain a meaningful relationship with their father without having face-to-face contact with him until his potential release on parole in 2018, when the children will be 16 and 14 years old

We think the weakness in submissions of counsel for the father in support of this ground can be demonstrated by the summary of argument at page 7:
… The children have on many occasions spent time face to face with their father during prison visits. That has been stopped by her Honour’s final orders but one can only speculate as to firstly, how this has been explained to the children and secondly, how they have been able to understand this.
The speculation does not form part of a demonstrable error on the part of

her Honour. Dr W drew the Court’s attention to the positives and negatives from the children’s ongoing face-to-face contact with their father.

Dr W recommended that the children continue face-to-face contact. We have already indicated in considering grounds 1(a), (b) and (c) that

her Honour was well aware of the negatives as well as the positives. But even

Dr W in light of her recommendation was unable to say that there would be no psychological harm to the children with the contact continuing. In a matter where the expert could only say there were positives as well as negatives and couldn’t be reasonably certain that the children would not be adversely affected by visiting their father, the appellant has not demonstrated that the exercise of her Honour’s discretion to conclude that face-to-face contact was not in the best interests of the children was not a proper exercise of that discretion. This ground must fail.

Conclusion

Given that no ground of appeal has been successful, the appeal will be dismissed.

Costs

At the conclusion of the hearing we sought submissions as to the question of costs. If the appeal was unsuccessful we were told that there would be no application for costs.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Strickland & Murphy JJ) delivered on 13 June 2012.

Associate:

Date: 13 June 2012