Wallace and Rimmington

[2008] FamCA 123

FAMILY COURT OF AUSTRALIA

WALLACE & RIMMINGTON [2008] FamCA 123

FAMILY LAW – CHILDREN – With whom a child spends time – Inappropriate use of physical force by father

Family Law Act 1975 (Cth)

APPLICANT: Mr Wallace

RESPONDENT: Ms Rimmington

FILE NUMBER: CSC 1082 of 2007

DATE DELIVERED: 27 February 2008

PLACE DELIVERED: Cairns

JUDGMENT OF: Moore J

HEARING DATE: 21 & 22 February 2008

REPRESENTATION

THE APPLICANT FATHER: Appeared on his own behalf

THE RESPONDENT MOTHER: Appeared on her own behalf

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Willis

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

1.The children named below are to live with their mother.

A born … August 1991;

W born … April 1993;

L born … January 1995;

D born … July 1996;

J born … February 1999;

B born … October 2002. 

UPON the father giving a written undertaking in these terms:

“I, […], undertake that I will not use any form of physical force (including but not limited to administering discipline) upon any of my children being [A], [W], [L], [D], [J] and [B].”

2.The father is restrained and an injunction is hereby granted restraining him from using physical force of any kind whatsoever upon any of the children.

3.Provided the father forthwith enrols in and attends a parenting course such as ‘Hey Dad’ or similar course and provides proof of such enrolment and attendance to the mother, the youngest children (D, J, B and L if L wishes) are to spend time with their father as follows:

A. from the date of these orders until 30 August 2008 - supervised

(a)at the … Contact Centre fortnightly for no less than three (3) hours

(i)but if the mother is unable to bring the children to the Contact Centre or the Contact Centre does not offer that time fortnightly, supervised by the children’s paternal grandmother in M on the day it would otherwise occur at the Contact Centre; and

(ii)if supervision at the Contact Centre is not going to occur the mother is to telephone the father and make arrangements with the father to enable the children to have time with him supervised by their paternal grandmother;

(iii)If the children’s time with their father is supervised by their paternal grandmother, the time is to be no less than three (3) hours and longer if there is prior agreement of the mother but not overnight and, in relation to B, the father is to have a period of no longer than 1½ hours in total after which time B must be returned to the mother.

(b)The supervised visits provided in order 3 (a) hereof are to be suspended if there are any further allegations of physical force by the father towards the children and

(i)if there are further allegations to that effect the mother is to seek to have the matter relisted in Court within 7 days of the time being suspended and

(ii)the father is also at liberty to apply to have the matter relisted.

B. from 1 September 2008 to 28 February 2009 [save for the Christmas school holidays 2008/09] - unsupervised

(c)Provided the father has taken advantage of the supervised time available reasonably regularly and provided further there are no further allegations of physical force by the father towards the children:

(i)the time spent by D, J, B and L (if L wishes) is to be every second Saturday between 9 am and 5.30 pm save that the time with B is to be no longer than 2½ hours when she is to be returned to her mother;

(ii)the father is to be responsible for collecting and returning the children to the mother’s residence or other place nominated by her;

(iii)the time spent by D, J, B and L (if L wishes) during the Christmas holidays 2008:

(aa)subject to (bb) hereof, each Saturday throughout the school holiday period between the hours of 9 am and 5.30 pm (but no longer than ½ of the day to include B);

(bb)if the mother wishes to take the children for a holiday away from the Cairns area the time with their father will be all day Saturday and all day Sunday (not overnight) of the first three (3) weekends of the school holiday period and the mother will be entitled to have the children in her care for the remainder of the holidays. 

C. from 1 February 2009 thereafter – unsupervised:

(d)Provided there are no further allegations of physical force by the father towards the children

(i)each second weekend commencing Saturday morning and concluding Sunday afternoon to include the overnight;

(ii)block period of time during the holidays being no longer than 3 nights for the remainder of the year 2009;

4.The appointment of the independent children’s lawyer is to continue for a further period of one (1) year or until further order. 

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER:   CSC1082 of 2007

Mr Wallace

Applicant

And

Ms Rimmington

Respondent

REASONS FOR JUDGMENT

Proceedings

1. The father (37) and the mother (34) are the parents of six children -

   •         A (16) born in August 1991;

   •          W (14) born in April 1993;

   •          L (13) born in January 1995;

   •          D (11) born in July 1996;

   •          J (8) born in February 1999;

   •          B (5) born in October 2002. 

2. These proceedings are about the parenting arrangements for the youngest four.  Counsel appeared on behalf of the independent children’s lawyer and both parents represented themselves. 

3. All of the children live with their mother and that is not in contest.  The initial issues were about the time the children would spend with their father, whether or not that time would be supervised and who would supervise it.  But that changed during the running of the hearing and the decision now required is quite narrow. 

Evidence

1. Apart from the parents’ evidence I heard from the father’s mother, Mrs Wallace (73), and I also had the benefit of evidence from Ms K, psychologist, who prepared a Family Report which she elaborated on at the hearing.  Both parents took issue with aspects of her report but not about the fundamental aspects relevant to her interviews with them or the children’s presentation and interviews. 

Orders sought

1. The proceedings began initially in the Federal Magistrates Court in 2005 and in due course interim orders were made on 2 November 2006.  They remain operative and provide, amongst other things, for the children to live with their mother and the four youngest children to have time with their father supervised at a contact centre each Saturday, the father to contribute $25 to her expenses.  The time was to be increased to unsupervised for a full day each Saturday ‘subject to the children being settled with regular supervised time with the father and overcoming their concerns’ within two months and to increase to alternate weekends provided they were settled. 

2. The father advised at the outset of the hearing that he was pursuing his proposal for unsupervised time with the four youngest children while the mother was against any time but if ordered then it should be supervised.  The ICL proposed adoption of the reporter’s recommendations which were for the younger children’s time with their father to be professionally supervised at a contact centre 2 hours per fortnight and when they reach the age of 12 years and have had some counselling about self protection from emotional and physical abuse they could spend weekends at their father’s home.  The reporter also recommended the father attend a course such as the ‘Hey Dad’ program run by Centacare and the mother seek mental health support. 

3. By the end of the hearing all positions had changed, including that of the reporter.  The ICL proposed orders consistent with the interests of the children in these terms:

   1.For period Feb 08 to Aug 08 – [D], [J], [B] and [L] (subject to [L] wishing to attend):

   (a)Father to attend a parenting course forthwith and provide evidence of such attendance to the mother;

   (b)Father to be restrained and an injunction issued preventing him from using physical force of any kind whatsoever upon the children;

   (c)Father to provide written undertaking to the Court that he will not use any physical force of any kind whatsoever upon the children;

   Then,

   (d)      To be supervised;

   (e)To occur at the Contact Centre fortnightly and for no less than 3 hours, however if the mother is unable to attend upon the Contact Centre or the Contact Centre does not offer time fortnightly, alternate contact is to occur (instead of at the Contact Centre and on the day proposed for the Contact Centre) under the supervision of the paternal grandmother.  The mother is to ring the father upon realizing that the supervision at the Contact Centre is not going to occur, and forthwith make arrangements with the father to enable him to have supervised time with the grandmother in lieu of the time at the Contact Centre;

   (f)In the event that the father is having supervised contact with the paternal grandmother, he shall have no less than 3 hours contact with [D], [J] and [L] (subject to [L’s] wishes) and longer only with the prior agreement of the mother and not overnight, and in relation to [B], the father will have a period of no longer than 1½ hours in total after which time [B] must be returned to the mother;

   (g)Contact to be suspended in the event of any further allegations of physical violence by the father upon the children, and the mother to have the matter relisted for further hearing in the Family Court of Australia (if possible before Her Honour Justice Moore) within 7 days of suspending such contact with the father also having liberty to apply to have the matter relisted.

2.For period Aug 08 to Feb 09 – save and except for the Christmas holidays:

(a)Subject to there being no further allegations of physical violence from any of the children, the father shall spend unsupervised time with the children each alternate Saturday between the hours of 9.00am and 5.30pm noting that the time with [B] shall be no longer than 2½ hours during this period with the father, after which time she is to be returned to the mother.  The father is to do the collection and delivery of the children to and from the mother’s residence, or other place as nominated by her;

(b)      Christmas holidays 2008:

(i)providing there are no further allegations, the father will be entitled to spend time with the children during the Christmas 2008 school holidays each Saturday throughout the school holiday period between the hours of 9.00am and 5.30pm (and no longer than ½ of the day to include [B]), however;

(ii)If the mother wishes to take the children away for a holiday away from the Cairns area, during the Christmas school holidays the father will have all day Saturday and all day Sunday of the first 3 weekends of the Christmas school holidays and the mother will have her holidays with the children away from Cairns in the period following.

3.        For period Jan 09 onwards - unsupervised:

(a)In the event of no further allegations of physical violence by the father upon the children, the children will spend each alternate weekend with the father commencing Saturday morning and concluding Sunday afternoon which is to include the overnight;

(b)A block period of time during the holidays being no longer than 3 nights for the remainder of the year 2009;

(c)A further family report to be ordered in the event that any issues arise with the father’s use of physical force upon the children.’

1. It was made clear to the parents that this proposal involved the application of certain conditions from now on:

   ·father would enrol in, attend and complete ‘Hey Dad’ course

   ·there would be a Court order against him using any physical force of any kind on children

   ·father would give a written undertaking, after legal advice about its effect and consequences, promising not to use physical force of any kind on children

   and, provided those conditions were in place, there would be a period of 6 months [shorter to (say) June 2008 if he had completed the course by then] when the contact would be:

   ·supervised at Contact Centre for not less than 2 hours fortnight

   ·if the mother could not bring the children, time would be supervised by their paternal grandmother

   ·if supervised by their grandmother, time with the boys [L if he wishes] would be for not less than 3 hours and with B for 1 ½ hours

   [provided that if there was any allegation of physical force by father on any child the orders would be suspended and the mother would be obliged to list the matter immediately before the Court with liberty to father to do so also]

   and for the following 6 months to February 2009 [provided he has completed the course and not otherwise] there would be

   ·unsupervised time every second Saturday 9am to 5.30 pm for boys [L if he wishes] and for no longer than 2 ½ hours with B, father to collect and return them from their mother’s residence or venue she nominates. 

   ·Day time arrangements during the Christmas school holidays

   and thereafter from January 2009

   ·unsupervised each second weekend from Saturday morning to Sunday afternoon; and

   ·block periods during school holidays for no longer than 3 nights.

2. The mother, having considered the ICL’s proposals and having heard the submissions on behalf of the ICL, agreed to those proposals. 

3. Presented with these proposals the father indicated he accepted them provided there was a similar undertaking given by the mother and the time frame was shorter having regard to the fact that the case had been going on for 2 ½ years. 

4. The ICL made arrangements for the appointment of a duty solicitor to give the father advice about the nature of an undertaking and the possible consequences of breach.  Mr Lee undertook that role and confirmed that had been done.  The father indicated at that point he would not sign the undertaking unless the mother signed one also but after another conference with Mr Lee he said he was prepared to sign it and he did so.  Nonetheless, he still asks for an order against the mother in mirror terms to the restraint imposed on him against disciplining or using physical force against the children.  It has to be considered therefore if such a restraint should be imposed on the mother.  That requires some reference to the background and history.  It also remains to consider if the orders proposed by the ICL and agreed to by the mother are to be adopted. 

Approach

1. Those decisions must have the best interests of the children as the paramount consideration and their best interests must be determined by reference to the considerations set out in s 60CC.  More particularly in the circumstances of this case it must have due regard to primary consideration s 60CC(2)(b); namely, ‘the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’ and to the additional considerations of s 60CC(3)(i) and (j); namely, ‘the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents’ and ‘any family violence involving the child or a member of the child’s family’.

Background

1. The parties had an on and off relationship from 1990 and they married in June 1997.  It is said they separated finally in 2003 although the father sees their relationship as having continued until about 2 ½ years ago.  In the main they lived in M, where they both have family, although they also lived in Cairns and, as I apprehend it, for a short time in north-western Queensland. 

2. Currently the mother and the children are living with her mother in M.  She is not in paid work and her income is from government benefits.  It is not necessary to go into her history given the nature of the decision required but it can be noted she has a conviction and lost her licence as a result of events last year when she rammed her vehicle into the gate at the home of the father and his partner and there is a current protection order against her which is operative until December 2008. 

3. The father lives in Cairns with his partner.  Her two children live with her and she is now obtaining a divorce from her husband whom she has not seen for four years.  She and the father are expecting a child.  They are both in paid work.  He lived in M before moving to Cairns.  His mother, who is a teacher, lives in M. 

4. At the heart of the decision is the largely undisputed history over the years of the parents’ relationship and since they have gone their separate ways.  It is a disturbing history of violence, which the father volunteers was predominantly instigated by him against the mother, and of what can only be described as his violent and irresponsible behaviour towards the children, although he would describe it otherwise.  On both fronts the allegations the mother set out in her affidavit are consistent with the reporter’s record of her interviews and are not, in the main, denied by the father although he approaches it from a different standpoint. 

5. Counsel for the ICL summarised the substance of the mother’s evidence this way:

   •some of children are actually scared of their father;

   •the older children do not want to have a relationship with the father due to their own experiences with him;

   •the father has administered cruel acts upon a child (J) ie putting a nail into a child’s hand as punishment for interrupting the father on the phone;

   •pushing doors against a child (D) and pushing a child (A) into a wall when she was trying to stop the father hitting and choking the mother;

   •throwing a screw driver deliberately at a child’s head (D);

   •making demeaning comments to the children ‘fuck off’ and referring to them as ‘fucking idiots and losers’ the boys then walking 2kms to their paternal grandmother’s house (D, L and J);

   •pushing a child against a wall (more than once) (A) after the child tried to intervene to stop the father hitting the mother, the child hitting her head on a concrete wall;

   •kicking and punching the mother whilst she was pregnant, and then removing the children from the house and taking the children and mother to a nearby park, left them there with blankets and pillows, stating don’t come back;

   •doing ‘donuts’ with the children in the car and doing hand-break skids to such an extent that the car rolled on its side and the children were unrestrained;

   •slapping a child ten times on the back for lighting a fire in the back yard;

   •refusing to give a child (B) who has a neural condition, her medicine saying she can just ‘sleep it off’ - the mother says she has had to go to the father’s to administer the required medicine.

6. What follows is a summary of the children’s statements during interview with the reporter and her assessments of them and their attitude to their father:

   (a)A, who has now left school and is home helping to care for the other children, accused her father of hitting her while arguing [in fact her father described an incident last year where he dragged her out of his house with his arm around her throat] and she reported witnessing domestic violence between her parents.  Her mother does not do anything to her father.  She believes it is not in the children’s interests to see their father because every time he sees them ‘he does something and lets them down.’ 

   (b)W did not want to see her father.  Observed in the room with him she seemed to place herself between him and the younger children and she was allowed to leave the room. 

   (c)L had a strong negative reaction to his father’s presence and did not directly interact with him.  Later in the day he expressed hostile views about his father – ‘bit of a freak show…he should be in a mental home cause he bashed [A]…I would like to spray petrol on dad…I would probably shoot him if he pisses me off to the limit…if he hurt mum again.’

   (d)D said he enjoyed his father until he was about 4 and that is ‘when he started to be more aggressive…he used to hit us and my mom…he flung, threw me like, into a fence paling…I was in Grade one.’  He also recalled his father ‘grabbed a screwdriver and threw it at me like it was a dart…because me and […] were using his shifter to fix our bikes and we didn’t ask…I felt threatened and that I wasn’t safe..’  He wanted to ask his father will you treat us nicely or else I never want to see you again.  He seemed to be knowledgeable about the court proceedings said ‘I’d tell the judge how he’s hit me and that…up the back…between the shoulder blades, grab my shoulder joints and push his thumbs in there.  He’d just do it for no reason.’  He did not interact with his father and was allowed to leave the room. 

   (e)J reported being scared when witnessing his parents arguing.  He recalled when he was five years old ‘I was going to call the police….dad said he’d kill me and he jabbed a nail into my hand.  He said “I’ll kill you by the time the police come and I’ll bury your body”…I thought he was serious the way he was looking at me.’  But J told the reporter he loves both his parents equally and wants to spend time with his father ‘…somewhere away from here [mother’s home]…to go to a park with dad.’ 

   (f)B said she loves both her parents.  She fully enjoyed spending time with her father and she greeted him enthusiastically in the report process. 

   (g)Having suggested to the father at one point that he sit on the floor and play a game with the children, the reporter described him walking past B and giving her a swipe across the top of her head.  She yelled ‘ouch’ but he did not stop or reply. 

1. A summary of the father’s statements to the reporter and his attitudes follows:

   (a)The father said he believes he has no influence over the adolescent girls A and W and despairs about his relationship with them.  He feels his time with the children is intense and that punishment is what works best with children because ‘other discipline methods aren’t working’.  He believes the best thing in parenting a child is to ‘show the kids how to do stuff’ and thus be an influence on their later life. 

   (b)The children’s wishes are not particularly important to him as he believes children should do what their parents ask them to do. 

   (c)In his opinion a spouse comes first ‘because you get more out of a partner than out of kids’. 

   (d)He made no apologies for deriding the mother – she and her mother are bad, they love their kids but make them dull, ‘I’m smarter and she does not like that, she is crazy as a cut snake with confidence.’ 

   (e)He openly admits to violence but ‘most of my violence was directed toward [the mother].  I don’t get angry at work’

   (f)He admits the children could anger him ‘could touch some insecurity in me.  If I was arguing with [the mother] and the child wanted something, I’d find myself getting angry.’  He would ‘tell them to f….off, throw something at them.’ 

   (e)Asked about the incidents the children reported in the interview process, he admitted all of the violent acts – ‘Yup that was me.’  Asked if he injured J with a nail – ‘I just got a tattoo.  The kids wanted to know what it was like, so I would use a nail to poke the kids…When [J] said he would call the Police, I would have been offended by that’.

   (f)He believes that ‘being rough when disciplining kids is the normal thing for a parent.  I’d still do that now.  Quick smacks, quick fixes.  Crazy reward system takes too long.  Children should be whacked, quick and effective.’ 

   (g)Asked to consider if hitting children was considered illegal he said he did not know that but it did not matter anyway - ‘I don’t answer to the law and the police’ who are all about violence and if you do not do what they said you could be killed. 

2. The father corrected some of these passages in his evidence at the hearing and he elaborated on other incidents:

   (a)He pushed a nail into the children’s hand because he had a tattoo and they wanted to know what it felt like, so they lined up for him to prick them with a nail. 

   (b)He explained the incident with J and the nail [they were at a construction site] a bit differently.  J had been interrupting him while he was talking on the phone, persisting even though he had been told to ‘fuck off’, he chased J when he got off the phone and when he caught him he held his hand and pushed a nail into it.  J said he would call the police to report him, the father dialled the number for him and the police came but they took no action. 

   (c)He agrees he would have pushed a child with the door to get the child out of the way when he had dragged the mother into the room to ‘rip it up’ her.

   (d)He does tell the children to ‘fuck off’ but he denied calling them ‘fucking idiots and losers’; he might call the boys ‘wanker’ now and then. 

   (e)The incident the mother described of her and the children being left at a park was elaborated.  He had returned from work, she had the stereo up too loud while he was watching television and he smashed the stereo. 

   (f)He did not throw a screwdriver at D’s head, he thought he had kicked it, but he does not think D is lying. 

3. The father considered the reporter had a ‘lean’ against his views about discipline of children in that her ‘zero tolerance’ of hitting a child made no allowance for his point of view.  He does not consider his attitude or approach to be out of the ordinary.  As he put it at one point, seeing the children for short periods provides no opportunity to implement other systems of discipline - action needs to start and finish in an hour - and he sees a place for children to be physically disciplined.  That said, he was unable to answer in any satisfactory way the mother’s question of what other methods he had tried but were not working [see the report of his comment to that effect in paragraph 56 of the report].  Asked why he gave B a swipe across the top of her head on his way past her during the report interviews, his response was: ‘because I am fond of her’.  This and his habit of pushing his thumbs into the children’s shoulders until they yelled out he explained by saying that if you know him then you understand that is his way of showing affection. 

4. In her summary, the reporter notes that all but the youngest child had witnessed violence and all but the youngest report having been struck by their father and being frightened of his behaviour.  She comments that his approach to his children seems to be blunted and to be without understanding of children’s needs in today’s environment.  The three older children do not wish to spend time with him although the three younger children do – in D’s case that being dependent on his father’s treatment of them.  All had suffered from their parents’ domestic violence and from their father’s ‘draconian methods’ of parenting as well as the poor mental health of their mother.  Neither the Department of Child Safety nor other agencies in the area had roles in the lives of these children and there seemed to be no external support for the family although the school had supported the children with counselling and activities. 

5. It will be wholly apparent from what has been said that all this was weighing in one direction and the reporter’s recommendation for professional supervision of the younger children’s time with their father is no surprise. 

6. But the matter did not end there.  There was later evidence that introduced another dimension and saw the ICL present a different proposal and a shift in the reporter’s recommendations. 

7. That evidence came from the mother.  It was to the effect that over the past month or so there had been three occasions some of the children had been in their father’s care and that had been arranged and agreed directly between them, despite the current orders for supervision.  On one occasion the father took the younger children up town for about ½ hour.  The following Saturday the three boys went with him for the day.  The mother said they went swimming despite her saying they were not to because of colds, they were returned later than agreed and they were disrespectful towards her afterwards.  Nonetheless a further day visit was agreed for L and J a couple of weeks ago and there were no complaints about that.  On each occasion the father collected them from her home and returned them there. 

8. The mother explained how this had come about.  She said the children had come to her crying and said they wanted to see their father.  They had some bike repairs to be done and thought their father could help them with that.  This came after ‘weeks of them nagging and wanting to see him’.  She rang him and asked if he was interested and he agreed.  As she put it, she is content with the children seeing him for the day if the boys are happy, the visits they had with him settled them down and they were not fighting so much, but she does not want them hurt. 

ICL submissions

1. In making submissions in support of the ultimate proposal set out earlier, counsel for the ICL described the father’s evidence about his treatment of the children and his conduct towards their mother as ‘shocking’.  He appears to be oblivious to the seriousness of it – demonstrated by the disinhibited way in which he presented detail of his conduct – and of the serious effect on the children.  It is troubling that he has no insight into his conduct or its consequences.  His conduct and attitude is entirely out of step with community standards of parenting.  He seems to conflate punishment and physical affection [such as cuffing a child across the head] and uses his dominating physicality for that purpose.  Counsel said that normally the ICL would be prompted to recommend there be no order for contact.  Yet despite this, the mother says the children still want to see their father, she wants them to see him, but she does not want them to be hurt.  Counsel described the mother’s position as entirely understandable and sensible.  If the father shows he can correct his behaviour for example through the ‘Hey Dad’ program – which specifically deals with parents who use physical force against their children – and he were to be restrained from administering any force of any kind, including by way of discipline, there could possibly be a move to unsupervised time in due course.  But the completion of that course as well as the imposition of court ordered restraints along with his undertaking are necessary before that could be even contemplated.  Until the change is demonstrated, the contact with the children must be supervised.  As for the supervision, the mother had a negative attitude towards the involvement of the grandmother but she later agreed to her involvement and the indicators are that she would be an appropriate supervisor. 

2. As for the imposition of similar restraints on the mother, counsel for the ICL submits there is no evidence of the mother having used physical force towards the children and did not support such an order. 

Conclusion

1. What has been recounted of the father’s attitude towards the children and his conduct towards them is very troubling.  He has been keen to impress his point of view about physical discipline of children having its place.  The use of physical force in the discipline of children is a topic of discussion at community or family level where views still differ about what place, if any, smacking children has in correcting behaviour or extracting compliance.  But it is not necessary here to speculate about what standards would be appropriate for application through court orders.  That is because on any view of it the conduct of the father towards these children goes far beyond what could possibly be tolerated within the bounds of acceptability by those who support ‘smacking’.  The danger and potential harm to the children, physical and emotional and psychological, needs no discussion. 

2. That said and having considered the case put by the ICL and the safeguards that must be in place before the time with their father can move from supervised to unsupervised – not without reluctance - I am prepared to make orders in general keeping with what is proposed.  The modification I make is at the point of the move from supervised to unsupervised and is really a point of drafting.  That move will not occur by reason of the passing of time – nor did the ICL mean it to – and will only happen after the father has completed the course and demonstrated the change that is so necessary in his dealings with the children and his opportunity to demonstrate change will be during the period under supervision.  In other words, it is not an option to wait for the passing of a year with an intermittent occasional supervised visit in the meantime for the arrangements to become unsupervised.  Of course there may be times when the foreshadowed visits will not occur for one reason or another, but the amendment made to the proposal is designed to eliminate any notion there may be that the passing of time is the key to supervision falling away. 

3. As for making an order in similar terms against the mother, the father suggests the mother physically disciplines the children and he says there should be the same rule for both parents.  But counsel for the ICL is right in saying there is no evidence of any inappropriate conduct by the mother towards the children to support the order.  There is no evidence of any complaint by the children about her treatment or of any concerns they have about her behaviour towards them.  From the reporter’s observations of the mother with the children, her interactions were said to be appropriate, the home was clean and tidy, there was normal interaction with the children and they were responsive to their mother’s requests.  Without supporting evidence, there is no justification for making the order. 

4. Orders will be made, therefore, in the terms set out earlier. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date: