Alston and Windsor (No 2)

[2015] FamCA 177

FAMILY COURT OF AUSTRALIA

ALSTON & WINDSOR (NO 2) [2015] FamCA 177

FAMILY LAW – CHILDREN – With whom a child lives – with whom a child spends time – with whom a child communicates – high level of parental conflict – orders that parents attend a parenting course – restraining orders

Family Law Act 1975 (Cth) ss 60CC, 75(2), 79

Mauldera & Orbel (2014) FLC 93-602

APPLICANT: Mr Alston

RESPONDENT: Ms Windsor

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of Tasmania

FILE NUMBER: LNC 390 of 2008

DATE DELIVERED: 18 March 2015

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart and Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 15, 16 & 17 October & 4, 5, 6, 7, 8 & 18 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marcus Turnbull

SOLICITOR FOR THE APPLICANT: EEs Stace & MM

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Patrick Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of Tasmania

PARENTING ORDERS

Previous orders

1. All previous parenting orders in respect of DD (‘DD’) born … 2001 and EE (‘EE’) born … 2002 (jointly called “the children”) are discharged.

Parental Responsibility

1. Subject to Order 3 (below), Mr Alston (‘the father’) and Ms Windsor (‘the mother’) shall share parental responsibility for the children including that:-

   a.The parties will request and/or direct that all records of any entity to which long term parental responsibility relates as described in section 4 of the Family Law Act 1975 (Cth), by way of example, but not limited to, health care practitioners, educational institutions and the like, will note both the father and mother as the parents of the child/ren, and neither parent will cause that entity to place restrictions or qualification on such note;

   b.The mother and father may, from time to time, liaise with the above entities, and seek information in relation to the child/ren.  The entity may liaise with that parent without the necessity of reference to the other parent;

   c.If applicable all relevant records will note as an emergency contact or details that of both the mother and the father;

   d.Neither parent will unreasonably refuse a request by the other parent to that entity for the children to engage in activities provided by that entity, by way of example Aboriginal studies;

   e.If a parent takes a child to a healthcare practitioner as noted above, he/she will advise the other parent of the details prior to the appointment, as reasonably practicable, including the necessities of such an appointment; and

   f.In the event of a dispute as to the exercise of parental responsibility each parent will provide to the other details of their proposed course of action, invite the other parent to provide a comment and in the event a comment is provided they will actively consider the other’s point of view AND in the event the parties cannot agree they will firstly seek to engage in a dispute resolution process before attempting to undertake any Court process, noting nothing in this process is to derogate from s 60I of the Family Law Act 1975 (Cth) (as amended).

2. The father have sole parental responsibility in relation to the children’s health provided:-

   a.Save for emergencies, the father shall appoint one General Medical Practitioner, healthcare professional or practice, as the case may be, as the principal healthcare professional for each of the children, and he shall promptly inform the mother of that person or practice.  

   b.Other healthcare professionals, including medical specialists, allied health, psychological, social workers, and counselling, shall be those reasonably nominated by the father, and if necessary recommended by the child’s General Medical Practitioner.

   c.The father shall use his best endeavours to ensure that records of health care professionals note both he and mother as parents of the child/ren to enable each parent to obtain information from such person or organisation as to treatment of or for the children.

   d.If reasonably practicable, prior to making a decision of some significance about the health of one or other of the children the father shall advise the mother of his proposed decision and invite her to provide a comment.  

   e.Within six (6) weeks from the date of these orders the father will arrange for DD to be referred to and see an Ear Nose and Throat Surgeon for assessment as to his needs for hearing assistance.  The father will provide to such medical practitioner a copy of the report of Mr AB dated 6 December 2010 and any other archival testing results provided by the mother to the father within that six (6) week period.

   f.Each parent will inform the other of significant medical treatment offered either child including the name and address of the health practitioner/s or health care organisation.  This is to be in advance when reasonably available and otherwise within twenty four (24) hours of the event or treatment. 

The Children shall generally live with the father

1. The children live with the father at all times except those provided in pursuant to these orders or as otherwise agreed in writing between the parties.

The Children shall live at specific times with the mother

1. The children live with the mother as is provided pursuant to these orders or as otherwise agreed in writing between the parties.  If there is no agreement then as follows:-

   a.For two (2) weeks in each of the first and third term school holiday periods, commencing the first Saturday (except if the first week it is the Easter Weekend – then commencing on Good Friday);

   b.In the Christmas/New Year school holiday period for not less than half of that holiday, as agreed, and in default of agreement:-

   i.For 2015/2016 and each alternate year afterwards - the first half.

   ii.For 2016/2017 and each alternate year afterwards - the second half;

   iii.The children to be returned three days before the first day they are to commence school in that year (if different for the children – then three days before the earlier of the commencement days).

   c.That for the purpose of school holiday time, set out in Orders 5 (a) and (b), the parents will equally meet the children's travel costs associated with spending time with the mother and in default of agreement:-

   i.The mother pay for the cost of travel from Tasmania to her place of residence in Australia and she will provide to the father not less than thirty (30) days notice and detail as to those travel plans, including a copy of the children's air tickets and itinerary; such flights to leave on the first day of such holiday period as is reasonable arranged by the mother;

   ii.The father pay for the cost of travel to Tasmania from the mother’s place of residence in Australia and the father will provide to the mother, not less than fourteen (14) days notice and detail as to those travel plans including a copy of the children's air tickets; such flights to be scheduled arrive at either Launceston, BC Town or H Town airport in the afternoon or evening of the last day of such holiday period except the Christmas/New Year holiday then three days before start of school term as is otherwise set out.

   d.If the mother is visiting Tasmania over Christmas in 2016 and/or each alternate year thereafter, and upon the mother giving at least thirty (30) days notice in writing to the father; - from 3pm on 25 December until 6pm on 26 December;

   e.If the father is visiting …Queensland or such other place of residence of the mother within mainland Australia over Christmas in 2015 and/or each alternate year thereafter, and upon the father giving at least thirty (30) days notice in writing to the mother; - from 3pm on 25 December until 6pm on 26 December;

   f.If the mother is visiting Tasmania on Mother's Day, and upon the mother giving at least thirty (30) days notice in writing to the father; from 5pm on the Saturday preceding Mother's Day until 5pm on Mother's Day;

   g.If the children are otherwise to be in the care of the mother over Father’s Day, and upon the father giving at least thirty (30) days notice in writing to the mother; the children are to be returned to the father's care on Father's Day from 5pm on the day preceding Father's Day until 5pm on Father's Day;

   h.The children shall spend time with the parents on each of the children's birthdays as agreed and in default of agreement:-

   i.If the one or other of the children is otherwise in the care of the father on his birthday and the mother is to be in Tasmania and the mother has given the father at least thirty (30) days notice in writing, the children will spend time with the mother for a period of two (2) hours if a school day and four (4) hours if a non-school day at times agreed and if there is no agreement, from 4pm until 6pm or 2pm to 6pm respectively;

   ii.If the one or other of the children is otherwise in the care of the mother on his birthday and the mother is to be in …Queensland or such other place of residence of the mother within mainland Australia and the father has given the mother at least thirty (30) days notice in writing, the children will spend time with the father for a period of two (2) hours if a school day and four (4) hours if a non-school day at times agreed and if there is no agreement, from 4pm until 6pm or 2pm to 6pm respectively;

   i.In the event the mother travels to Tasmania during a school term period, for at least two (2) consecutive days during the mother’s visit to Tasmania, with such days and times to be reasonably nominated by the mother; provided that the mother has given the father at least thirty (30) days notice in writing;

   j.For the purposes of Orders 5 (d) to (i) the mother will collect and return the children to the father’s residence or such other place as agreed; and

   k.The children have electronic communication between each of their parent’s at all reasonable times.

2. In the event the mother is residing in … Tasmania;

   a.Order 5(d) shall not apply;

   b.During School term EE shall live with the mother each alternate weekend from the conclusion of school on Thursday, or from 3:30pm Thursday in the event that the Thursday is a public holiday or student free day, until the commencement of school Monday, extending to the commencement of school on Tuesday in the event Monday is a student free day or public holiday;

   c.During school term DD shall live with the mother each alternate week from the conclusion of school Thursday in week 2 after the commencement the school holiday period until the commencement of school the following Thursday

Other Orders

1. Within one year from the date of this order the mother and father will each individually attend and complete a Parenting Order Program or similar to develop understanding as to the impact conflict and separation has on children.

2. That neither parent will denigrate the other parent or members of that parent’s family in the presence of the children or within hearing of the children, nor will they allow a third party to do so.

3. That regardless of where the mother may reside, the father will enable and encourage regular telephone communication between the children and the mother at all reasonable times; with the mother to initiate the call to the children’s mobile telephone.

4. Either parent is permitted to take the children on overseas holidays to a State or States which are bound by the Hague Convention on the Abduction of Children; subject to the following:

   a.Such travel shall occur at times when the children would ordinarily be living with the parent proposing to travel, either pursuant to orders or by written agreement,

   b.That for the purposes of overseas travel at least thirty (30) days prior to the proposed overseas travel, the parent traveling with the children must provide to the other parent:-

   i.A photocopy of the children’s return airline ticket;

   ii.An itinerary and names of any person with whom the children are intended to travel; and

   iii.Accommodation details for the duration of the trip.

5. Within thirty (30) days of this Order the mother and father shall do all things necessary to complete a Passport Application for each of the children and the mother shall return the Passport Application to the father for him to lodge, at his expense.

6. Once issued the children’s passports are to be forwarded by the parties to be held by the Registrar of the Family Court at Hobart and released with the written consent of both parties or by order of a court exercising jurisdiction under the Act.

7. Each parent shall advise, and keep advised the other parent of his/her residential address, postal address and email address. Initial notification in writing of such addresses and written notice of any change in such addresses must be communicated by email to the other party within seven (7) days of such change.

8. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

The Independent Children’s Lawyer

1. The Independent Children's Lawyer shall:-

   a.As soon as is feasible arrange to meet with the children and the children’s psychologist, Ms R, and inform them of the outcome of the parenting proceeding and the nature of the orders; and

   b.Forward a copy of the three Family Reports, these orders and the reasons to State Child Protection Authorities in Tasmania and Queensland within twenty one (21) days from the date of this order.

NOTATIONS

1. Both parents will follow the reasonable directions of the children’s treating psychologist.

2. The Court recommends that the mother engage with a healthcare professional to address her clinically significant distress and the impact of that distress as outlined within the Family Reports and to this extent, leave be granted to the mother to provide to the healthcare professional she engages copies of the three Family Reports.

3. If either one or both of the children express a wish for his surname to be known as “Alston-Windsor” each parent shall accommodate that or those wishes; further noting that this is not permission to require changing records of entities noted in Order 1 and 2 above AND IT IS NOT authorisation to enable name changes pursuant to the Births Deaths and Marriages Registration Act 1999 (Tas) or similar legislation in other States.

GENERAL ORDERS

1. Following the expiration of the appeal period, all subpoenaed documents (except for the parties’ case summaries and expert reports) shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

2. The parties shall each pay one half of the costs of the Independent Children’s Lawyer, either as agreed or determined as party/party costs pursuant to the Family Law Rules 2004 (Cth).

3. All other extant parenting applications for orders, except costs applications, be otherwise dismissed and removed from the list of cases awaiting finalisation. Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Alston & Windsor (No 2)has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART AND LAUNCESTON

FILE NUMBER: LNC 390 of 2008

Mr Alston

Father

And

Ms Windsor

Mother

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Mr Alston (‘the father’) and Ms Windsor (‘the mother’) have been unable to resolve parenting issues following their relationship failure in 2007.

2. These parenting issues were heard simultaneously with the property and child support issues conducted between the parties. Evidence for all issues was taken at the same time and then used, where relevant, in each of the determinations. There was one proceeding but three primary causes of action.

3. I have taken the unusual step of delivering two sets of reasons and separate orders, one for parenting and the other for property and child support.  The reason for this approach is that I will direct that the parenting reasons and consequent orders are made available to health care professionals and others. They may be used in respect of the children’s education and health care.  There is no need for the parties’ property reasons and orders to be part of that disclosure.  Similarly, the property orders may need to be produced to revenue and land title registration authorities, real estate agents, valuers and the like.  They have no need to know the parties’ and their children’s circumstance as to parenting. In addition, I wanted to make it clear that the Independent Children's Lawyer was not involved in the property or child support proceeding.

4. In coming to the conclusion to make the orders envisaged in these reasons I have also had regard to the reasoning I set out in the property and child support reasons which were delivered on the same day.  

5. This couple have invited the Family Court into the dispute and have requested it to impose solutions upon them and their children.  The mother and father each express a quixotic belief in the righteousness and justice of their respective causes.  If I apply the law to their facts and if I get it half right, both parents are likely to be disillusioned in what they will both perceive as an unquixotic outcome.    

6. These parents have engaged in entrenched and long term conflict.  As in many such cases, this conflict arose and continued in the absence of violence, physical and sexual abuse, misuse of drugs and alcohol.  It is wholly parental conflict, which in turn has visited terrible burdens upon their children.  

7. Each parent, in various ways, has denied or tried to deny their children the love and support of the other parent.  The consequence of this behaviour has been to deprive or despoil both the childhood and innocence of their children.

8. These entrenched conflict cases are a regular type of case in family litigation.  This conflict, like many others, defies the panoply of private and public solutions available to them in our communities.  It is an area worthy of continuing serious social science research.

9. The scope of this dispute is about the parenting arrangements for their children, DD, (‘DD’) aged 13, and EE, (EE), aged 12 (collectively ‘the children’).

10. The parenting issues are complex because of a combination of factors including: the geographic distance between the places where the mother and father live (Tasmania and Queensland); the age, maturity and divergent views of the children; and the entrenched conflict between the parties.

11. The father has re-partnered and the mother continues to exhibit sadness, distress and/or anger arising from the unexpected, from her perspective, marriage breakup and separation.  This unhappiness and consequent conflict has subsisted for over seven years and shows no signs that it is diminishing.  Each of the parties has at times adopted positions and attitudes which promote the conflict.  These are otherwise two good people who are successful in their respective careers and who both dearly love their children, yet they are unable or unwilling to accommodate courses to stop the conflict which is so damaging to their children and their own financial circumstances.

Material upon which the parties relied

1. The father relied upon the following material:-

   (a)his further amended initiating application filed 2 May 2014;

   (b)his affidavit filed 22 May 2014;

   (c)his financial statement filed 22 May 2014;

   (d)affidavit of Ms S filed 21 May 2014;

   (e)affidavit of Ms T filed 21 May 2014; and

   (f)affidavit of Mr Q (single expert) filed 6 May 2014.

2. At the commencement of the hearing the father tendered a bundle of documents[1] which included valuations, costs orders, invoices for valuations, other documents including bank statements and accounts.

   [1]Exhibit F1.

3. The father’s outline of case document was tendered.[2]  Except as agreed in evidence in terms of some aspects of chronology, it was not evidence of the facts contained in it, but simply an outline of the case that he was presenting.

   [2] Exhibit F2.

4. The mother relied upon the following documents:-

   (a)amended response filed 6 August 2014;

   (b)Notice of Risk of Abuse filed 22 August 2013;

   (c)her affidavit filed 21 August 2013;

   (d)her affidavit filed 8 October 2014;

   (e)her affidavit filed 14 October 2014;

   (f)her Financial Statement filed 6 November 2014.

5. The mother’s submissions for final hearing document were tendered.[3]  Except as agreed in evidence in terms of some aspects of chronology, it was not evidence of the facts contained in it, but simply an outline of the case that she was presenting.

   [3] Exhibit M1 and page 21 of the mother’s affidavit filed 8 October 2014 where she sets out final orders she   seeks.

6. The mother also sought to rely upon her affidavit filed in the Federal Magistrates Court (as it then was) in September 2008.  Objection was taken by the father to the mother relying on that affidavit and I determined that she could not do so but I gave her leave to call short oral evidence as to the history.

7. The Independent Children’s Lawyer relied upon his outline and summary of argument.[4]  That was tendered on the same basis as the similar documents filed on behalf of the father and the mother.

   [4] Exhibit ICL1.

8. The Independent Children’s Lawyer relied upon the following:-

   (a)affidavit of Mr U filed 20 November 2013;

   (b)affidavit of Ms V filed 15 November 2013;

   (c)affidavit of Mr W filed 24 April 2014;

   (d)affidavit of Ms X filed 20 May 2014;

   (e)updating affidavit of Ms X filed 26 September 2014;

   (f)updated affidavit of Mr W filed 26 September 2014;

   (g)affidavit of Ms R filed 2 October 2014 (treating Psychologist);

   (h)affidavit of Ms Z filed 7 November 2012; and

   (i)three Family Reports prepared by Family Consultant, Ms AA, dated 18 March 2014[5], January 2011[6] and 24 November 2008.[7]

   [5] Exhibit ICL2.

   [6] Exhibit ICL3.

   [7] Exhibit ICL4.

Children’s issues

1. Each of the parties sought orders that there be equal shared parental responsibility for the children.[8]

   [8] Father’s case outline Exhibit F2, page 7 and mother’s amended response filed 6 August 2013 page 2.

2. The father sought orders that the children live with him and spend time with the mother.  If the mother lives outside Tasmania, the orders he seeks are:-

   ·The first and third week of each school holiday period with the children to be returned by 6.00pm on the Saturday prior to school commencing.

   ·Christmas summer school holiday period, twenty eight (28) days in January in odd numbered years and in even years the first part of the school holiday period.

   ·In the event that the mother travels to Tasmania during school term, for two (2) consecutive days during the visit, such days as agreed between the parties.  The father seeks details of the visit.

   ·If the mother is living in Tasmania then the father proposed that the children should spend time with her during school term each alternate Thursday until the commencement of school Monday or Tuesday if Monday is a student free day or holiday.

   ·Half of the mid-term school holiday periods and half of the Christmas school holiday periods in weeks around.

   ·Orders in relation to Mother’s Day, Father’s Day, the children’s birthdays and telephone communication.

   ·Non-denigration orders.

   ·Orders regarding passports and some provision about overseas travel.

3. The mother has moved to Queensland and sought orders that the children relocate to Queensland to live with her, or alternatively that DD move to Queensland and live with her.  She seeks an order for equal shared parental responsibility. The mother seeks complex orders that the children spend time with the father and if separated with each other over school holidays.  The detail of the orders she seeks were:-

   1.That the children [DD and EE] live with the mother.

   2.That the parties have equal and shared parental responsibility for [the children].

   3.That [the children] be permitted to relocate from Suburb D Tasmania to the CC Region Queensland from January 16, 2015.

   4.That during the absence of [the children] from Suburb D Tasmania that the father spend time as follows:

Period	Start	Finish	Mum/Dad
Term 1	Tuesday 27 January, 2015	Thursday 2 April, 2015	10 wks Mum
School Holidays	Friday 3 April, 2015	Sunday 19 April, 2015	Dad
Term 2	Monday 20 April, 2015	Friday 26 June, 2015	10 wks Mum
School Holidays	Saturday 27 June, 2015	Sunday 12 July, 2015	Dad
Term 3	Monday 13 July, 2015	Friday 18 September, 2015	10 wks Mum
School Holidays	Saturday 19 September, 2015	Monday 5 October, 2015	Dad
Term 4	Tuesday 6 October, 2015	Friday 11 December, 2015	10 wks Mum
2015/2016 Summer School Holidays	Saturday 12 December, 2015	Friday 8 December, 2016	Mum
Shared Summer School Holidays	Saturday 9 December 2016	Sunday 24 January, 2016	Dad
Term 1	Monday 26 January, 2016

a.That [the father] has time with [the children] for three of the four school term breaks.

b.That [the father] has time with [the children] for half the annual Christmas Holidays starting in 2014.

c.That [the father] has time with [the children] EE every second Christmas and New Year to have the freedom to enjoy a true holiday experience without interruptions.

5.That during the absence of [the children] from Suburb D Tasmania, the father communicate with them as follows;

a.at all reasonable times by telephone/mobile

b.at all reasonable times by the internet, email, Viber, KIK and Skype

6.That the mother pay half the cost of air travel for [the children] to travel to Tasmania for the purposes of spending quality time with the father.

7.That the mother pay all travel expenses to the domestic airport for transfer to Tasmania.

8.That the father not pay the mother child support.

9.That the father continues to pay for [the children’s] Private Health Insurance until 21 or until finished school - whichever is earliest.

10.That the father pay $20,000 per year indexed to inflation for [the children’s] University or Vocational Educational fees in a nominated Trust Account until they gain full-time employment. 

a.If [the children] do not wish go to University or enter a Vocational Institution then they should have access to this Trust Account for their own personal purposes at the age of 25/30 (age to be negotiated between the parents]

11.The mother would be pleased for [the children] to go to Tasmania for any weekend/long weekend to tend to family/work gatherings, special events, birthdays, tragic events etc. as long as this is reasonable, feasible and achievable.

12.That [the father] have physical contact with [the children] – up on the CC Region - within 7 days’ notice.

13.That [the father] should have no concerns with contacting me with any unexpected opportunities to visit [the children]. I will do my utmost to make sure that [the father] and the boys can take advantage of such opportunities.

14.If [the father] is not congruent with the school I have suggested for [the children] then I welcome further suggestions and would be happy to work on a solution that meets our family’s needs and expectations.

15.The mother will ensure that [the father] is identified as [the children’s] dad on their school enrolment and emergency contact list at all times and, make it a priority that [the father] be kept up-to-date with all school activities and events.

16.That [the children] be permitted to have passports and that each parent have an understanding that the children can leave the country for family holidays with details provided to the other parent and that the other parent is identified as the emergency contact in the event of a tragedy.

17.That neither the mother nor the father denigrate one another in front of [the children]

18.That at the age of fourteen both [the children] will have the opportunity to choose where they wish to live without fear or repercussions of further litigation.

19.That DD and EE Alston be known as DD and EE Alston-Windsor

20.In the Christmas/summer school holiday period for not less than half of that holiday, as agreed and in default of agreement:

a.In even years for the first half;

b.In odd years for the second half;

c.At such further or other times as may be agreed between the parents.

21.At Christmas as follows:

a.In 2014 the children will be with the father and for the first half of the Christmas holidays

b.From 2015 and in alternate years thereafter that the children will be with the mother for Christmas and the first half of the Christmas holidays  

22.If the father is in Queensland on Father's Day from 5pm on the day preceding Father's Day until 5pm on Father's Day if the father is in Queensland.

23.That the children spend time with the parents on each of the children's birthdays as agreed and in default of agreement:

24.If the birthday falls on a school day and the Father is in Queensland, for a period of four hours with the parent with whom the child is not living or staying on that day and in default of agreement, from 4pm until 6pm;

25.The Father will collect and return the children to the mother’s residence or such other place as agreed

26.By telephone at all reasonable times as agreed.

1. The mother sought some orders in respect of child support, although there is no evidence of notification of the Child Support Registrar.  

2. The father has said that he will accept an order that whoever has the primary care of the children will have parental responsibility for health issues and that all schools should disclose both parents as being the people with whom the schools should contact and deal with.  This was approach was supported by the mother.

3. The mother seeks an order that the surnames of the children be changed from ‘Alston’ to ‘Alston-Windsor’.  The father opposes that order.

4. In her final submissions the mother said she wanted EE to live with her, but when asked about this proposal to split the children she said her real reference was that both live with her. He position was, at times, unclear.

5. The Independent Children’s Lawyer’s sought orders substantially as those to be made by me.

Background

1. The father is aged 46 and he is the owner/manager of his upholstery business.  He is in good health.

2. The mother lives in BB Town on the CC Region in Queensland, having recently moved there from Western Australia.  She is a health professional.

3. The father asserted that the parties commenced cohabitation in about 1998 and married in 2002. 

4. They separated in November 2007.  There is an issue as to whether separation was 18 or 30 November but in the context of these proceedings not much swings upon that. 

5. The parties were divorced on 14 January 2011.

6. There are two children of the marriage, DD and EE.  The children are currently residing primarily with the father in Tasmania and spend time with the mother.

7. Prior to the parties’ separation they had each operated their own businesses as sole traders.  The mother operated her business, K Pty Ltd, and the father operated his business, P Pty Ltd.  There is a dispute as to the contributions each made in relation to the businesses.

8. After separation there was conflict between the parties as to the parenting arrangements for their two children.  The father commenced parenting proceedings and eventually the arrangements became week about. 

9. In February 2009 the mother sought permission to relocate with the children to Adelaide.  At the conclusion of a defended hearing and before the making orders or giving reasons Federal Magistrate Roberts (as he then was) indicated that he would not be permitting the relocation of the children.

10. Consequently, the children remained in Tasmania.  The mother moved to South Australia to continue her studies where she obtained a Masters.

11. The children remained in the primary care of the father.

12. The children spent regular time with the mother until early 2011, when the mother returned to Tasmania and the parties resumed the week about basis in terms of care of the children.

13. The mother sought orders that the father pay spouse maintenance to her.  That application was dismissed in September 2011.  On 28 September 2011 the mother was ordered to pay the costs of the Independent Children’s Lawyer in the sum of $1,560 and the costs of the father in the sum of $1,760.

14. In so far as the father is concerned those costs remain unpaid.[9]  I have acknowledged this as property of the father and a liability of the mother in terms of my deliberation.  I have consciously made no adjustment or allowance in respect of these costs orders.

    [9] Father’s trial affidavit paragraph 135.

15. On 15 November 2011 a final order was made by consent in the then Federal Magistrates Court that the children live week about with each parent.[10]

    [10] Trial affidavit of father annexure A (page 35).

16. In early 2013 the mother relocated to Perth to undertake further study and the children remained in Tasmania with the father.

17. The mother lived in Western Australia from early 2013 and completed her Doctorate.

18. In April 2014 the mother moved to Queensland where she now lives and has well paid employment.

19. From the time the mother moved to Western Australia the majority of parenting has been provided in the father’s household.  The children spent regular time with the mother in Western Australia, although the arrangements for those times were quite fraught for the children.

20. The parties have been involved in constant conflict and almost constant litigation since separation. 

21. The father has re-partnered and now lives with Ms T, who has three children from a previous relationship, FF aged 15, Ms GG aged 18 and Mr HH aged 20.  The elder children live independently and FF resides with Ms T, the father and the children.

22. At the time of this hearing EE was in grade 6 at II School in Suburb D and DD in year 7 at JJ School in H Town.

23. In these proceedings the mother was unrepresented.  She had the assistance of the children’s maternal grandmother through much of the hearing.  She also had the assistance of Mr KK.

24. At the commencement of the hearing the mother asked if Mr KK could assist her in terms of managing the documents and understanding the process, essentially as a McKenzie friend.  There being no objection from either the Independent Children’s Lawyer or counsel for the father I allowed that course, although Mr KK did not have a ‘speaking part’.  During the course of the hearing the mother asked permission for Mr KK to read the Family Reports[11] so that she could discuss that with him in terms of her prospective cross-examination of the Family Consultant.  Upon Mr KK giving an undertaking to the Court under oath that he would not discuss the report further with any other person apart from the mother that material was made available to him.  This was done with the consent of the Independent Children’s Lawyer and counsel for the father.

    [11] Exhibit M2, M3 and M4.

25. Notwithstanding that assistance, I accept it is always difficult for a party who is unrepresented.  I have had regard to that difficulty in the management and running of the hearing and in terms of considering the submissions and assessing the evidence of the mother.

26. It was an agreed fact that a determination had been made, in relatively recent times, that the mother’s income for the purpose of child support had been determined on her capacity to earn income at a rate of $130,000 per year.

27. The mother applied for jobs in 2010, 2011 and 2012 but was not successful in obtaining those jobs.[12]

    [12] Exhibit M16.

28. In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.

Witnesses

The father

1. The father relied upon his affidavit and financial statement referred to earlier in these reasons. 

2. He amended his financial statement in terms of a number of areas, namely that:-

   (a)his income will be approximately $135,000 gross per annum which will mean it will be about $200 per week less than set out in his financial statement;

   (b)his liability to the ANZ visa was about $4,671 and Citibank was about $11,835; and

   (c)there was no longer a liability in respect of his American Express Card.

3. In terms of the father’s financial statement and I am satisfied that he works in his own business and earns about $2,600 per week gross.  Ms T lives with him and works in his business.  She is paid about $874 per week.  Given the documentation produced by him and the comments I will make later about the quality of his evidence, I accept that evidence.

4. The father gave evidence as to the income of his business from 1996 through to 2001, which evidence I accept, that he earned about $22,900 in 1996, $45,400 in 1997, $16,900 in 1998, $27,800 in 1999, $76,400 in 2000 and $8,152 in 2001.

5. During most of the marriage the father earned a variable income from his business, it was particularly good in the later years. I accept that the father has made significant financial contribution at the time the parties commenced living together and in the years that followed both before and after separation.

6. I accept his evidence in relation to the downturn of the business from QQ Pty Ltd and the reduction in the production of the models where he undertakes work on their machinery. 

7. I accept his assertion there is no intellectual property as their task is to fit material requested by QQ Pty Ltd and there is no testing in relation to the that material.  As the models came along they did drawings for QQ Pty Ltd and then installed the material.

8. The father gave evidence as to the motor vehicles and their providence.

9. In his evidence the father impressed as to the difficulties that he has had in communications with the mother since separation.  In some of his emails he was somewhat authoritarian and abrupt, however he was seeking to make sensible arrangements for the children using the names recorded on their birth certificates and having them arrive back at reasonable hours to return to school.  I generally accept his evidence in that regard.  Some examples of the issues surrounding the communication difficulties between the father and mother were set out in paragraph 19 of the father’s trial affidavit.

10. The mother asserted that the father had a liability of about $80,000 to his former wife at the time they commenced cohabitation.  I refer to this elsewhere in the reasons and I accept the father’s evidence supported by his National Australia Bank document.[13]

    [13] Exhibit F3.

11. I generally accept the father’s evidence that each of the parties ran their own businesses.  They assisted each other in minor ways from time to time in terms of the businesses, but there was no overwhelming contribution one to the other over the period of the marriage.

1. In cross-examination the father listened carefully to the evidence and was frank in giving answers.  He at times provided answers which were contrary to his interests.  Some examples of those were about his October 2013 emails, as to being dictatorial or inflammatory.  He acknowledged that the electronic traffic was a continuation of the war between he and the mother.

2. The father conceded that in private conversations between him and Ms T he may have used derogatory terms against the mother, and may have participated in a conversation which the children may have unintentionally overheard.

3. He generally impressed as a thoughtful and reasonable person coping with what he regarded as difficult circumstances over many years following the breakdown of the marriage.

4. Another example of the father’s admission against his interest was his concerns about the children and the mother identifying them as Aboriginal and his concerns about that identification for the children when they were at school.

5. The father was cross-examined in relation to the payment of the children’s dental fees.  He said he refused to pay the account in the context that he was concerned that once he started paying bills they would come in at an increasing rate.  The father obfuscated in relation to part of this evidence and I am satisfied that he was, to a certain extent, engaged in the conflict with the mother in terms of the finances between the parties.

6. I have taken this into account in terms of contribution and in terms of his approach to parenting.

7. The father was cross-examined in relation to his ANZ home loans as at June 2000[14] and was re-examined in relation to the home loan as at the date of separation.  The father’s evidence in this area was not satisfactory.  He avoided answering some questions or was ‘cute’ in answering questions.  The father often relied upon poor memory in circumstances where I conclude that he had knowledge but did not wish to make admissions against his interests.  An example of this was the letter of demand he sent the mother in February 2008 for funds.  The father had significant assets, although this must be seen in the light of the mother having taken $65,000 from the bank account a short time before.

   [14] Exhibit M10.

8. I generally regard his evidence as reliable, albeit from his subjective point of view.

Ms T

1. Ms T is the father’s partner.  They have been in a relationship for approximately four years and have been living together for two years.  Ms T provided evidence contained in her affidavit of 21 May 2014, which was read into evidence.

2. Ms T has three children of a previous relationship, to whom I have referred earlier.  Ms T, the father, the subject children and FF live at the father’s rented home in Tasmania.

3. Ms T provided evidence that she had carefully formed a relationship with the children and that that relationship was developing well.

4. She agreed with the facts asserted by the Family Consultant at paragraph 52 of the most recent Family Report.  In terms of the household she described a well functional household which has occasional issues but nothing of major consequence.

5. Ms T gave evidence that ‘swearing’ was uncommon in her house, that she occasionally swore and that the father rarely swore.  She conceded using occasional swear words in terms of her teenage daughter and in relation to gentle disciplining of one of the subject children when he used an inappropriate word during a game.

6. Ms T was cross-examined as to the facts attributed to the children by the State Care and Protection Authorities.  She said that she had never hit the children, but has sometimes called them names.  She said of this that the only thing she could think of was using terms such as ‘cheeky little bugger’ or the like in a light-hearted sense.

7. I am satisfied this could have been a misinterpretation by the boys given the conflicted life in which they exist.

8. Ms T gave some examples of DD getting upset on a couple of occasions, one in relation to a bike ride and one in relation to a tea towel.

9. She was cross-examined by the Independent Children’s Lawyer and answered questions carefully and thoughtfully.

10. She was very forcefully cross-examined by the mother and made some concessions against her interest including some overly strong wording in text messages, but came across as a forceful, thoughtful and effective witness.

11. Ms T said the boys are rarely apart and they seem to draw strength being together.  I accepted that evidence and gave it some weight.

12. The cross-examination by the mother of Ms T showed that the mother had spent a significant amount of time and effort gaining ‘intelligence’ in relation to Ms T including a damaged door, the rental of one of the parties’ properties to Ms T’s elder daughter, other aspects about the parties’ lives which were at times irrelevant and at times concerning given that level of knowledge and the level of cross-examination.

13. Whilst Ms T’s evidence is subjective, I am satisfied that she is a witness of the truth and I generally accept that which she asserted.

Ms R

1. The children’s psychologist, Ms R, gave evidence as to her treatment of the children.  She was careful in giving that evidence in not disclosing any confidences of the children which could inhibit the clinical relationship between them and their therapist.

2. In relation to EE, Ms R said that she noticed an improvement in his presentation.  She said he says he feels guilty that he may be holding DD back from living with their mother. 

3. Ms R said that final orders providing a base for the boys living arrangements would be better for the children.  She said both children need certainty of arrangements and those arrangements need to be fixed. 

4. She is confident that EE’s earlier thoughts of self-harm are no longer in place although she is concerned that EE is disempowered, as set out in her report.  Ms R says that EE now has strategies available to him to better manage the conflict to which his parents have exposed him.

5. Ms R said that the children could make their own arrangements as a conduit to access; the adverse side to this is that it may restrict the time spent with the other parent.  That approach, given all of the evidence, may set the parties and children up for failure.

6. At the conclusion of her evidence, with the consent of the parties and with the support of the Independent Children’s Lawyer, an order was made preventing the parties from discussing the evidence of Ms R with the children.

7. Ms R was frank, careful and thoughtful.  She was careful of the needs of her patients, the children.  I generally accept her evidence.

Ms V

1. Notwithstanding the Notice to Admit the Independent Children’s Lawyer made enquiries to see whether Ms V could be made available for the trial.  Unfortunately Ms V was on leave and was not able to be contacted.[15]  I had some regard to her evidence, albeit that it was not in any way pivotal in the determination.

   [15] Affidavit of Ann Z sworn and filed 7 November 2012.

Mr W

1. Mr W is the Principal of JJ School where DD commenced high school in 2014.  Mr W’s affidavit material[16] was read into evidence subject to weight.

   [16] Affidavits filed 28 April 2014 and 26 September 2014.

2. Mr W thinks well of DD and believes that he has leadership potential into the future.  There were a number of minor incidents during the year which have been resolved at lower level and are not, in the circumstances of boys approaching or entering puberty, of concern.

3. Mr W added in relation to DD words to the effect that he is a ‘lovely boy who is young for his age and is a young man who he would happily have at his school, he has a good sense of justice and he makes good decisions’.

4. Mr W was cross-examined by the mother in relation to school events and confirmed his earlier evidence.

5. His evidence was credible and reliable.

The mother

1. The mother provided evidence contained in the following documents:-

   (a)her amended response filed 6 August 2013;

   (b)her chronology contained in Exhibits M1 and M2;

   (c)her Notice of Risk of Abuse filed 22 August 2013;

   (d)her affidavit filed 21 August 2013

   (e)her affidavit filed 14 October 2014;

   (f)her affidavit filed 8 October 2014 (this had annexed to it a copy of Exhibit M4) (trial affidavit)[17];

   (g)her financial statement dated 13 October 2014 and filed 6 November 2014;

   [17] Part of the mother’s trial affidavit had been struck out earlier in the hearing and only the part not struck out was read into evidence.

2. In addition there is her evidence contained in her financial statement filed 6 November 2014, where she discloses that she works as a health professional and earns about $1,826 per week, plus rent on a number of properties bringing her income up to about $2,335 per week.

3. The mother gave oral evidence that she is currently earning about $130,000 a year plus bonuses.  The amount of those bonuses is unclear.  In August 2015 she will finish her internship and she will be able to bill Medicare which, apparently, makes a difference in terms of her ability to earn greater income.

4. The mother says that she has a business in Tasmania, K Pty Ltd; however, given the history provided by her, the father and the Single Expert I am satisfied that it has no value.  She disclosed no other occupant in her house who earns income.

5. The mother gave oral evidence that she said wanted DD to live with her in believing that she was a good mother.  DD’s wish that he lives with the mother had been one he had expressed for some years.  

6. The mother gave evidence that she would not be returning to Tasmanian, unless there was some catastrophic event such as illness of her mother or the like.  She said that she did not want the alternative orders or to discuss the alternative orders sought by the father except to say that if this was the arrangement there ought to be equal time in Tasmania.

7. The mother tendered a letter from Dr KK as to EE’s weight.[18]  The context of this evidence was hard to discern. 

   [18] Exhibit M17.

8. The mother was cross-examined in relation to the evidence given by Ms S.  The mother asserted that the evidence of Ms S was fabricated.  I do not accept that this was the case and I find that the mother is either unable to remember or is falsely denying the evidence of Ms S.

9. I prefer some of the evidence of Ms T as against that of the mother.  I have alluded elsewhere to the interactions between Ms T and the mother.

10. At times, when giving evidence, the mother showed a tendency to become histrionic and occasionally I needed to ‘bring her back’, to ask her to focus on the question and listen to the question.  She very much focuses on her own needs, such as her education in South Australia and Western Australia, where her career was her main focus.

11. The mother asserted that the note allegedly from EE was something to which she had no involvement.  I reject her evidence in that regard.

12. The mother met most of the costs of the flights for the children to and from Tasmania and at times for her mother when required by the father.

13. The mother gave evidence about how she felt about the breakdown of the marriage and her perceptions of her business.  It is clear that the mother continues to mourn the loss and the end of her marriage which came as a terrible shock to her.

14. I have been careful in my assessment of her evidence, given that she was self-represented and was clearly in distress and at times overwrought by the sudden and unexpected loss of the marriage. Her evidence was emotionally charged and she used evocative words such as ‘betrayal’.

15. The mother said that the father was in a better financial situation than her and that she had no knowledge of his income and was kept absolutely in the dark about that income.  Her evidence was that she only found out about the extent of his income when she received a child support assessment after separation.

16. The mother said she never saw the father’s financials and had no access to the accounts.  She was distraught and teary in giving this evidence.

17. Counsel for the father cross-examined the mother in relation to this evidence, and the mother was shown a report from Mr MM of NN Pty Ltd.[19]

    [19]  Who provide financial advice dated June 2004 (‘the NN report’).

18. The mother initially asserted she had never seen that report before and noted it was addressed to the father at his business address.  When pressed in cross-examination she conceded that the investment advice given to the parties by Mr MM was in fact followed by the parties in their purchase of forestry investments.  The mother then agreed that she had attended at a meeting but said she arrived late and was not present for the same amount of time as the father.

19. The mother continued to assert that she had not seen the report.  Eventually she was taken to pages in the report where she identified comments and words which had been written by her in the report.

20. I do not accept that this was an error in memory.  The mother’s evidence in terms of her assertion of her lack of knowledge of the father’s financial circumstances was damaged by this.

21. The mother was asked about investments in the purchases of property; the B Street property in 2000, the N Street property some time later, the subsequent purchase of the F Street property and then the purchase of the C Street properties.  On each occasion the mother went to the bank with the father and conceded she would have known his financial circumstances.

22. The mother’s assertion that she did not know about the father’s finances were likely fabricated or reconstructed.   

23. The mother said that the minimum qualification for her profession is a Master’s Degree.  She said it was absolutely necessary for her to leave the State to obtain that degree.  She said that she and the father agreed that she would wind down her business so that they could travel interstate.

24. The mother was winding down her business not to move interstate but in terms of her spending more time parenting and continuing to run her business on a lesser basis, having regard to the economic success of the father’s business.

25. The mother says that the reason she left the State was that it was forced upon her.  I do not accept that explanation and I am satisfied the mother left the State to improve her academic qualifications firstly in South Australia and then in Western Australia.  That was a decision she took.

26. I do not reject the whole of the mother’s evidence, however, I treat it with caution.

Evidence of Family Consultant

1. Ms AA (‘the Family Consultant’) has had an opportunity to see these children over a significant period of time.  She has prepared three reports which were read into evidence namely:-

   (a)Report 24 November 2008 (interviews for November 2008);[20]

   (b)Report 23 January 2010 (interviews 12 January 2011);[21] and

   (c)Report 18 March 2014 (interviews 5 March 2014).[22]

   [20] Exhibit ICL4.

   [21] Exhibit ICL3.

   [22] Exhibit ICL2.

2. The mother did not challenge the professional or practical qualifications of the Family Consultant, but challenged her in a number of ways including assertions of bias, misstatement of facts and the like.  The mother set these out in detail in her trial affidavit.[23]

   [23] Paragraphs 71 to 85.

3. Given the evidence of the mother and the evidence of the Family Consultant, I am not satisfied that the substance of the complaints made by the mother of the Family Consultant have been established.

4. I am satisfied that the Family Consultant has adopted a careful and thorough assessment of these children over a period of about five and a half years.  The Family Consultant was provided with a copy of the report of Ms R.  The evidence of the Family Consultant was that the observations of Ms R were similar to her own. 

5. The Family Consultant observed that that parental conflicts and difficulties of the parents had significant impact upon the children.

6. The Family Consultant observed that the children love both their parents, that EE expresses the absence of empowerment and that DD, typical of his age, is not happy about the ongoing emotional investigation of him.

7. Interestingly, the Family Consultant formed the view that DD was mature for his age.  Mr W gave evidence that DD is ‘young for his age’.  I also accept the evidence of Ms R that she observed that DD, at his age, ‘lacks insight’.  What I make of this, evidence, I do not know. 

8. I accept the Family Consultant’s evidence that DD has a strong view that he wishes to live with his mother and is likely to do so.  The Family Consultant says that if an order is made contrary to those views it may be that DD will simply decide to stay with his mother at some stage, although the Family Consultant was comforted by the mother’s evidence that once a decision was made she would abide by that decision.

9. The Family Consultant provided evidence about the benefit of these children having their relationship at the present time, which as they get older will provide a bond for them through life.  The problem she says when siblings are split can be real in the sense of jealousy by one child of the other and vice versa.  It sets up a division between the children where one child is always going to feel like a visitor in the other sibling’s home.

10. The indications for separation, observed by the Family Consultant, were that EE at times feels bullied by his older brother and DD may become disruptive if he is not given a voice.  That is not the evidence currently from the school.

11. The Family Consultant believed that if DD can grow up in one home for the next two or three years, he will focus more on his peers and his parents will be less significant to him.  The Family Consultant said these children need a secure place.

12. As to the mother the Family Consultant’s evidence was that the mother does not have emotional stability and displays significant distress.  That distress was clear to me during the hearing and the Family Consultant noted:-[24]

    55.    [The mother] does not express any belief that she has had any agency in her problems. Her emotional intensity, in conveying her grief, anger and despair, is very troubling. This was evident during the interviews for the first family report, less so for the update in 2011 but is heightened at present. It is not clear to what extent [the mother] personality attributes impact on her capacity to function. It was clear that [EE] finds her emotional intensity difficult to manage at times. It is troubling this has included tension about [EE’s] body shape. It was evident that primarily, the boys truly enjoy their mother’s company when they are together; they enjoy doing physical activities and having fun. However, when [the mother] is upset with them, she apparently finds it difficult to recover some equilibrium and to let matters smooth over easily. From other reports, it appears that both boys are also noticeably affected by their emotions. To what extent this is inherent or learnt behaviour would be speculative; however it is very likely that the ongoing stress of exposure to, and of managing their parents’ emotions - and the intractable dispute between them - would have had a psychological impact on the boys and has reduced their resilience and capacity to cope with stress.  [The mother] has directly pleaded for help to reduce the ongoing trauma in her family; one place to start would be to ensure that her own psychological well-being is sound and that her emotions do not inadvertently impact on the children’s emotional well-being.

    [24] Exhibit ICL 2 Family Report 18 March 2014.

13. I accept the evidence of the Family Consultant that DD has a strong alignment with his mother.

14. The Family Consultant gave evidence about the name change which I have alluded to elsewhere in these reasons. 

15. I generally accept the evidence of the Family Consultant and the assessments made of her although the ultimate decision rests with me given that I have seen, read and heard all of the evidence in a broader context and over a longer period of time.

Ms X

1. The Independent Children’s Lawyer relied upon two affidavits by Ms X.  Those affidavits were filed 12 May 2014 and 26 September 2014 and were read into evidence without controversy.  They were accepted by both the mother and counsel for the father.

1. As a consequence I have made alternate parenting orders in the event that the mother choses to reside in Tasmania.

2. In terms of school holidays it is clear that the boys will spend those together with one parent or the other.  Given the reasons set out above I agree that the children should spend more of the school holidays with the mother if she is living outside of the State.  As such I accept the suggestion the orders sought by the father that is that the children spend the whole of the school holidays in the first and third term school holiday with the mother and the midterm school holiday with the father.

3. In respect of the Christmas school holidays they would be from the end of term to early January in one year and from early January to late January in the following year, and then continuing. 

4. The mother gave evidence that she did not have the children last Christmas (2013) and I raised with the parties a proposal for the children to spend time with the mother for the upcoming Christmas in 2014.  The mother said that she would prefer to have the children in the second half of the upcoming end of 2014 school holiday period.

5. In terms of the Christmas school holidays for 2016/2017, the children will spend the first part with the father from the end of term until early January and then the second part with the mother from early January through to three days before the end of that holiday period.

6. There was an issue about how and when the children are returned to the father’s care.  This arose out of the father’s concerns that the children were put on the midnight flight from Perth by the mother.  The mother said that this was the only flight available to her due to her economic circumstances.

7. I do not accept her evidence in that regard.  I am satisfied the mother wanted the children to spend as much time with her as possible and was prepared to subject the children to an overnight flight from Western Australia to meet her needs without any meaningful insight into the children’s needs.

8. Similarly the mother, despite opposition from the father, at times purchased air tickets in the names of the children which she wanted, ‘Windsor’,  rather than the names which the parties had agreed and by which the children were legally known.  That could not or would not have been in the best interests of the children if they had been refused boarding of an aircraft.  That was more about the mother’s desire that they use her surname rather than the children’s desire.

9. However, given that the mother now lives in Queensland the flights to H Town or Tasmania are far closer.  There will still need to be a change of aircraft in Melbourne or Sydney however, given the age and maturity of the children I am satisfied that they can manage that change subject to the rules and regulations of the various airlines.

10. I will order that the children are to be returned to the father at either Launceston, BC Town or H Town airport on the afternoon or evening of the Sunday before the commencement of term (for mid year breaks).  That would not apply when the children are returned at the end of the second half of the Christmas school holidays, as they are to be returned three days earlier.  For the sake of clarity that means if school commences on a Tuesday, they are to be returned on the preceding Saturday.  The changeover for the middle of the Christmas/New Year holidays will be by a flight arriving in the afternoon or evening of that date.

11. The parties agreed that each of them should sign documents to enable the issue of passports for the children and they are to be held by the Family Court at Launceston and released with the consent in writing of both parties or order of a court exercising jurisdiction under the Act.

12. Given the circumstances set out in these reasons that seems a sensible order to make.

13. The parties both agree that there ought to be an order restraining the other party from denigrating the other party in the presence or hearing of the children or allowing others to do so.  I propose to make that order by consent.

I certify that the preceding four hundred and thirty seven (437) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on      18 March 2015.

Associate:     

Date:              18 March 2015