Bracken and Woodhouse

[2010] FamCA 873

FAMILY COURT OF AUSTRALIA

BRACKEN & WOODHOUSE [2010] FamCA 873

FAMILY LAW – CHILDREN – What interim parenting orders should be imposed – Parental responsibility – With whom children live and spend time – Allegations of child sexual abuse – Application for substantive proceedings to be classified into the Magellan protocol – Equal shared parental responsibility allocated to the mother and father – Children live with the mother and spend time with the father during school holiday periods – Substantive proceedings classified into the Magellan case protocol

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 42 Fam LR 531

APPLICANT: Mr Bracken

RESPONDENT: Ms Woodhouse

INDEPENDENT CHILDREN’S LAWYER: Ms Callander, Legal Aid NSW

FILE NUMBER: SYC 2624 of 2010

DATE DELIVERED: 27 September 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 27 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bates

SOLICITOR FOR THE APPLICANT: Steven Ward & Co

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Mr Coyle, The Family Law Firm

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Callander, Legal Aid NSW

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. The parenting orders made by the Federal Magistrates Court of Australia at Townsville on 8 November 2006 are suspended.

2. The mother and father shall have equal shared parental responsibility for the children J, born on … December 1998, and A, born on … May 2004, (“the children”).

3. The children shall live with the mother.

4. Each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:

   a.From 12:00 noon on Saturday 2 October 2010 until 12:00 noon on Saturday 9 October 2010;

   b.From 12:00 noon on Tuesday 28 December 2010 until 12:00 noon on Friday 14 January 2011;

   c.From 12:00 noon on Saturday 9 April 2011 until 12:00 noon on Wednesday 20 April 2011.

   d.From 12:00 noon on Saturday 2 July 2011 until 12:00 noon on Saturday 9 July 2011.

5. For the purposes of implementing the time spent by the children with the father, the mother shall cause the delivery and the father shall cause the collection of the children at the commencement of the time to be spent with the father at the B Service Centre, NSW, and the father shall cause the delivery and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the same place.

6. The father is restrained from allowing either child to be in, or remain in, the presence of:

   a.OC born … January 2002; and

   b.NC born … April 2004.

7. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

   a.The father each Wednesday when the children are living with the mother, between 6.00 pm and 6:30 pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s call on that number at that time.

   b.The mother each Wednesday when the children are spending time with the father, between 6.00 pm and 6:30 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s call on that number at that time.

   c.The parent with whom they are not then staying, on the children’s birthdays, between 6.00 pm and 6.30 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s call on that number at that time.

8. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

9. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

10. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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.

11. Any and all outstanding applications for interim parenting orders are dismissed.

BY CONSENT, IT IS FURTHER ORDERED THAT

1. This matter is classified into the Magellan case protocol of the Family Court of Australia at Newcastle.

2. The Director-General of the NSW Department of Human Resources is requested to prepare and furnish to the Court within 35 days hereof a report pursuant to the Magellan case model protocols (“the Magellan Report”) concerning the allegations of the mother contained within the Form 4 Notice filed on 24 September 2010 by the Independent Children’s Lawyer and also the general circumstances affecting the children:

   a.J born … December 1998; and

   b.A born … May 2004.

3. Copies of the Magellan Report shall, upon its receipt from the Director-General, be given by the Registrar of the Family Court of Australia at Newcastle to:

   a.The lawyers acting on behalf of the parties, and in the event of a party not being legally represented, that party personally;

   b.The lawyers representing the children in the proceedings pursuant to order made under s 68L of the Family Law Act; and

   c.If a party is legally aided, employees of the legal aid body providing financial assistance to the party, but only upon request from an employee of the legal aid body.

4. Except with the Court’s permission, no person is to release the Magellan Report, or provide access to the report, to any person other than those mentioned in the previous order.

5. The Registrar of the Family Court of Australia at Newcastle shall forthwith forward to the Director-General of the NSW Department of Human Services:

   a.A sealed copy of these orders;

   b.A copy of the Form 4 Notice filed on 24 September 2010; and

   c.Any other document, or part thereof, containing allegations warranting the provision of a Magellan Report.

6. Pursuant to s 91B of the Family Law Act, the Director-General of the NSW Department of Human Services is invited to intervene in these proceedings, and in the event of the Director-General wishing to intervene, shall file and serve a Notice of Intervention within 35 days hereof.

7. Pursuant to Rule 24.13 of the Family Law Rules, leave is granted to the Director-General of the NSW Department of Human Services, or his or her delegate, to inspect and copy any document on the Court file forming part of the Court record.

8. The hearing of this matter is adjourned until 10:30 am on Monday, 8 November 2010, before Justice Austin.

9. Ms S is appointed as the single expert witness to prepare a report in relation to those issues prescribed by s 60CC of the Family Law Act and in particular, the allegations of sexual abuse of the children in the father’s home by one or both of Ms C’s children.

10. The parties must within seven days hereof confer for the purpose of agreeing upon the letter of instructions to be provided to the single expert.

11. If the parties do not agree on the letter of instructions to be provided to the single expert, then at a further procedural hearing before the Court each party must provide to the Court a draft letter of instructions.

12. Each party has liberty to apply to relist the matter on seven days notice for further procedural orders.

13. The parties must appoint the single expert in writing within 14 days hereof, and in order to facilitate preparation of the single expert’s report:

    a.The Independent Children’s Lawyer is granted leave to photocopy and provide to the single expert witness copies of all documents on the Court file and copies of documents produced on subpoena.

    b.Each party must attend upon the single expert witness for such interviews and observation sessions as the expert requires at any reasonable time nominated by the single expert witness; and

    c.Each party must ensure the attendance of the children at such interviews and observation sessions and at such times and places as the single expert witness reasonably requires.

14. The parties shall ensure that in the letter of instructions provided to the expert the expert is furnished with copies of, or has her attention drawn to, the provisions of Divisions 15.5.2 and 15.5.6 of the Family Law Rules.

15. Leave is granted to the father to issue a subpoena to the Commissioner of New South Wales Police for records relating to Mr R born … 1977.

16. The costs reserved by Order 3 made on 16 September 2010 are reserved to the final trial.

NOTATION

A.The Independent Children’s Lawyer has informed the Court that she expects that the single expert will have her report available before Christmas 2010.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC 2624 of 2010

MR BRACKEN

Applicant

And

MS WOODHOUSE

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the parenting orders that should be made for the children of the parties.  The children are J, born in December 1998, and A, born in May 2004 (“the children”).  The children are now aged 11 and six years respectively.

2. The proceedings were recently commenced by the father and are presently before the Court for interim determination.  On 27 July 2010 the matter was fixed for interim hearing on 16 September 2010, but the hearing was adjourned on that date to 27 September 2010 on the application of the father, with the consent of the mother and Independent Children’s Lawyer.

3. The parties are in dispute about the residential arrangements for the children that have applied since consent orders were made between them in November 2006, under which orders the children were designated to live with the father.

4. Since those orders were made there have been a number of changes in the circumstances of the parties and the children, including:

   a)The father moved with the children from his then residence in northern Queensland, to his current residence in G, New South Wales, in January 2010,

   b)There are now allegations of sexual abuse of the youngest child said to have occurred in the father’s home, and

   c)There is an allegation that the eldest child expresses a clear wish to live with the mother.

Background

1. The parties reached final consent orders on 8 November 2006, which agreement was ratified by orders made by the Federal Magistrates Court of Australia in Townsville, Queensland.  The orders effectively provided for the allocation of equal shared parental responsibility for the children, the children to live with the father, and the children to spend time with the mother.

2. On 17 April 2010 the mother detained the eldest child following a visit of both children to her.  The youngest child was returned by the mother to the father.

3. Although it is common ground that the mother telephoned the father to advise him of her intentions at that time, the parties are in disagreement about whether the eldest child expressed a desire to stay with the mother at that point in time.  As things stand currently, the Independent Children’s Lawyer has informed the Court, without contradiction by either party, that the eldest child expresses a firm view that he wishes to continue residing with the mother but that the youngest child is desirous of a return to the father.

4. On 22 April 2010 the father initiated proceedings before the New South Wales Local Court for a recovery order in respect of the eldest child.  That recovery order was made on 30 April 2010.  The recovery order was executed on 1 May 2010 and the eldest child was then returned to the father.

5. The mother filed an appeal against the orders made in the New South Wales Local Court.  The mother also sought parenting orders to the effect that the orders of 8 November 2006 be discharged, that the mother have sole parental responsibility for the children, and that the children live with her.

6. The appeal was nugatory because the subject recovery order had already been executed.  The appeal was therefore formally dismissed on 7 June 2010.  Only the substantive parenting orders now remain contentious.

7. The matter came before the Court on 7 June 2010, at which time the proceedings were adjourned until 27 July 2010 and the parties were referred to a Family Consultant pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”), seeking a report from the Family Consultant under s 11E of the Act.

8. The parties and the children conferred with the Family Consultant on 15 July 2010, resulting in a Children and Parents Issues Assessment Report dated 21 July 2010, the contents of which report were adopted by the Family Consultant in an affidavit sworn by her on 21 July 2010.  The Family Consultant’s affidavit was disseminated to the parties.

9. The matter came before the Court again on 27 July 2010.  At that time an Independent Children’s Lawyer was appointed and the matter was fixed for interim hearing on 16 September 2010, at which time the hearing was adjourned to 27 September 2010.

10. It is an agreed fact that the children have been back in the care of the mother since July 2010 by reason of a dispute about transport arrangements between the parties concerning the return of the children to the father following a school holiday visit with the mother.  The mother has since declined to return the children to the father.

11. The father currently lives in G with his partner Ms C and her two children OC, aged 8 years, and NC, aged 6 years.  The mother lives at T, New South Wales, with her partner Mr R and the three children born to their relationship, being Z, aged two years, and twins X and Y, aged one year.

Proposal and evidence of the mother

1. The interim parenting proposal of the mother is contained within her Response filed on 11 May 2010.  In essence, the mother proposes discharge of the orders made on 8 November 2006, the allocation of equal shared parental responsibility for the children to the parties, that the children live with the mother, and that the children spend time with the father on alternate weekends and half school holidays.  Self-evidently, it is impracticable, if not impossible, for the children to be exchanged between households on alternate weekends because of the vast distance between the parties’ households.

2. In support of her proposal, the mother relies upon the following evidence:

   a)The fourth affidavit of the mother filed on 26 July 2010;

   b)The affidavit of the maternal grandmother filed on 2 June 2010; and

   c)The affidavit of Mr R filed on 17 August 2010.

Proposal and evidence of the father

1. The interim parenting proposal of the father is set out within his Application in a Case filed on 6 September 2010.  In that document the father effectively proposes suspension of the orders made on 8 November 2006, the allocation of equal shared parental responsibility to the parties, that the children live with the father, and that the children spend time with the mother in school holiday periods.  The father also makes an alternate parenting proposal in the event that the children are split between the households, with the eldest child remaining with the mother and the youngest child being returned to the father.

2. In support of his proposal, the father relies upon the following evidence:

   a)His affidavit filed on 16 September 2010;

   b)The affidavit of Ms C filed on 16 September 2010; and

   c)The affidavit of Dr L filed on 21 September 2010.

Proposal and evidence of the Independent Children’s Lawyer

1. The interim proposals of the Independent Children’s Lawyer are set out within the Application in a Case filed by her on 24 September 2010.

2. The Independent Children’s Lawyer also seeks suspension of the prior parenting orders made in November 2006.  She also proposes that the children live with the mother, that the children spend undefined time with the father, and that an injunctive order be made restricting interaction between the children who are the subject of these proceedings and the children of the father’s partner Ms C. In addition, the Independent Children’s Lawyer seeks that the substantive dispute be classified into the Magellan protocol and appropriate procedural orders be made to bring the matter on for trial.

3. In support of her proposals, the Independent Children’s Lawyer relies upon:

   a)The Form 4 Notice of Child Abuse or Family Violence filed by her on 24 September 2010;

   b)Her affidavit filed on 24 September 2010; and

   c)The affidavit of the Family Consultant sworn on 21 July 2010.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Act. The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA) unless either that presumption does not apply (s 61DA(2)), or it would not be appropriate to apply the presumption in interim proceedings (s 61DA(3)), or if the presumption is rebutted (s 61DA(4)).

5. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

6. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

7. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 42 Fam LR 531.

Evidence

1. The manner of applying those provisions to interim proceedings has also been the subject of authoritative guidance.  The Court looks to uncontested facts and inferences that fairly arise in reaching its determination.  Findings of fact cannot be made on contentious issues when the evidence is not tested by cross examination.  Consequently, it is futile to ventilate contested factual issues.

1. There are numerous uncontested facts that arise from the available evidence. 

2. In July 2009 the children spent time with the mother and Mr R in school holidays.  On that occasion the youngest child was observed to be waving his penis in the face of one of the younger children born to the mother and Mr R.  That issue was raised directly in a conversation between Mr R and the father but at that point in time it was taken no further (affidavit of Mr R, par 10).

3. In April 2010 the children spent time with the mother again in a school holiday period. On 17 April 2010 the maternal grandmother was involved in facilitating the return of the children to the father.  At that time she had a conversation with the eldest child who, it is asserted, stridently represented that he wanted to remain living with the mother and not return to the father.  As a consequence of a conversation between the maternal grandmother and the father, the youngest child was left with the father to return to G and the eldest child was taken by the maternal grandmother back to the mother (affidavit of maternal grandmother, pars 18-20).

4. I have already recounted the circumstances of the making of the recovery order that caused the return of the eldest child from the mother to the father.

5. The two children again spent time with the mother during the school holidays in July 2010.  On 13 July 2010 the mother observed the youngest child to kneel down in front of one of his younger step-siblings and appear as if he was about to put his face close to the step-sibling’s genitals.  The mother warned the youngest child away and questioned him about his behaviour.  At that point in time it is alleged that the youngest child told the mother “[OC] puts his mouth on my penis and sucks it”.  The child’s reference to OC is a reference to the older of the two children of Ms C, who lives in the father’s household (affidavit of the mother, par 26).

6. As a consequence of the youngest child’s disclosure to the mother, the mother made a report of the incident to the New South Wales Department of Human Services.  That occurred on 14 July 2010 (affidavit of the mother, par 28).

7. On 15 July 2010 the children participated in interviews with the Family Consultant.  The Family Consultant’s affidavit refers to those interviews and her opinions which flow from the interviews.

8. The Family Consultant reports that the eldest child was concerned about not feeling safe in the father’s home due to Ms C’s child OC allegedly being sexually and physically abusive, mostly towards the youngest child (Family Consultant’s Report, page 3.8).

9. The Family Consultant concluded that the eldest child was worried about the situation in the father’s household because the child reported to her that he was not able to sleep and that it was affecting his ability to concentrate at school (Family Consultant’s Report, page 3.9).

10. The eldest child also told the Family Consultant that he believed that the youngest child would be better off living at the mother’s because Ms C’s two boys “do rude stuff like pull his pants down” (Family Consultant’s Report, page 4.3).

11. The eldest child also reported to the Family Consultant that he feels that he and the youngest child were picked upon in the father’s household.  He referred to Ms C’s eldest child OC as a “bully”. The child alleged that OC hit and kicked them both, and that the other boys had hurt the youngest child (Family Consultant’s Report, page 4.5).

12. On Monday 19 July 2010, at the request of officers of the New South Wales Department of Human Services following the mother’s reports some days before on 14 July 2010, the children were interviewed by officers of that Department. The transcripts of the children’s two interviews are now in evidence (Exhibits ICL1 and ICL2).

13. The youngest child reported to the departmental officers that Ms C’s youngest child OC pulled down the front of his pants and showed his “willy” to both children. The youngest child also reported that one of Ms C’s children had put his willy on the youngest child’s willy, even though the youngest child tried to get away.  The youngest child asserted that he had told the father and Ms C about those incidents and that they had reacted by disciplining one or both of Ms C’s children by sending them to their room.

14. The eldest child reported in his interview that Ms C’s eldest child OC pulled down his pants and felt his private parts.  He also alleged that OC pulled down the youngest child’s pants and that those episodes occurred very frequently and sometimes daily.

15. The mother reports that following the two interviews with the children she had a discussion with the departmental officers, at which time it was confirmed that the youngest child had not confirmed the disclosure he had earlier made to the mother on 13 July 2010 that “[OC] puts his mouth on my penis and sucks it”, but did disclose other aspects of behaviour with a sexual connotation, which is evident from the exhibits (mother’s affidavit, par 43).

16. Despite the children’s allegations that the father and Ms C were aware of the sexualised behaviour between the boys in their household, that is not a fact accepted as true by the father’s partner Ms C. Ms C reports (affidavit of Ms C, par 16):

    “When the allegations were made against my boys, I was completely floored.  We were spoken to and advised by [Ms B] of the [local] Department of Community Services of the allegations of the inappropriate behaviour.  I had not witnessed any of that behaviour at our house, nor did any of the boys say anything to me at all, or to [the father] to my knowledge.”

17. As a consequence of that revelation, Ms C made appointments for both of her children OC and NC to have counselling at O Organisation (affidavit of Ms C, par 18).  That counselling occurred on both 31 August and 1 September 2010.  The counselling was performed by Dr L, who is described as an “intern psychologist”.  That counselling is the subject of Dr L’s affidavit filed 21 September 2010.

18. Dr L reports that both OC and NC were seen for brief educational and therapeutic intervention on 31 August and 1 September 2010 to address personal boundaries and safe touching.  The two boys were seen together for two one hour counselling sessions on those two days.

19. Apparently that was not the first time Ms C’s children had undertaken counselling.  Both of them had previously undertaken counselling in January 2009 when there were some parenting difficulties between Ms C and those boys’ father.  Apparently the elder boy OC also had supplementary counselling in November 2009 following some disruptive behaviour exhibited at school.

20. Dr L reports that she discussed with both boys parts of the body that were not safe or appropriate to touch and that both boys were able to identify the genitals, bottoms and women’s chests as places on the body that are not safe to touch.  Both boys were also able to identify the need for privacy in toilets, bedrooms and changing areas, and Dr L involved the two boys in role play coaching them how to ask for permission before entering toilets or bedrooms. 

21. I accept the submission that the father and Ms C have dealt with the allegations of inappropriate sexual behaviour in a proactive way.

22. The Independent Children’s Lawyer reports that in a Safety Assessment Decision Report dated 7 September 2010, the New South Wales Department of Human Services concluded that when the children are in the care of the father they are exposed to the risk of sexual harm by Ms C’s children NC and OC (affidavit of the Independent Children’s Lawyer, par 5).

23. The Family Consultant reported in July 2010 that:

    “If the investigation into the alleged sexual assault supports the subject children’s allegations, then due to further risk of harm to the children they should remain in the mother’s care” (Family Consultant’s Report, page 9.4)

24. As things stand, both children are living in the household of the mother and were enrolled to attend T Public School on or about 21 July 2010 (affidavit of the mother, pars 46, 52).

Conclusion

1. The overriding consideration at this point in time on the state of evidence is the need to protect the children from psychological harm by reason of the apparent sexual abuse being perpetrated upon the children, but particularly the youngest child, by other minors in the household of the father. 

2. At this stage of the inquiry there is insufficient common ground to differentiate between the parties in respect of the other relevant considerations stipulated in s 60CC of the Act.

3. I apply the presumption of equal shared parental responsibility.  That was the agreement of the parties at the time they agreed upon parenting orders in November 2006, and both parties still seek that outcome, from which I impute that they each regard that order to reflect the best interests of the children.

4. The presumption of equal shared parental responsibility is not displaced by evidence of sexual abuse because it is not alleged that the sexual abuse was perpetrated by a parent of the children. Rather, the allegations go to perpetration of abuse by other children living within the father’s household.

5. Having allocated equal shared parental responsibility for the children to the parties, the Act requires me to consider an equal time living arrangement, or alternatively, an arrangement where the children live predominately in one household and spend substantial and significant time in the other. In each case that is an impracticable outcome because of the huge distance between the parties’ respective households. With the father living in G, southern New South Wales, and the mother living in T, northern New South Wales, it is impossible for the children to be exchanged between those households in a manner that would meet the description of either “equal time” or “substantial and significant time” under the Act.

6. The Court is therefore at large about the children’s residential arrangements, so long as those arrangements still meet the children’s best interests.  It behoves the Court to tread carefully until such time as the evidence concerning sexual abuse of the children is properly tested and evaluated.  The safest course, I have concluded, is to have the children live with the mother for the time being.  As I have already noted, they have been living with her for the last couple of months in any event.

7. The father’s proposal was for the children to return to him and, implicitly, for Ms C and her children to vacate the father’s household until the final trial, which is likely to be some months away.  I draw that conclusion from the evidence of the father’s witness Ms C who says (affidavit of Ms C, par 19):

   “I am willing to move out of our house and live at my parents’ place to allow [the children] to return to [G] until this matter is resolved.  I am willing to give an undertaking to the Court that [the children] will not stay overnight with [my children] until this matter is resolved.  I am also willing to give an undertaking that [the children] and [my children] will be under constant personal supervision whenever they are together.”

8. I do not regard that as a workable outcome.  It entails further disruption to this family, compounded by disruption to another family.

9. I accept the submission made by the Independent Children’s Lawyer and the mother that the two children ought not be separated between the households.  In my view, their best interests are served by them living together in one household or the other.

10. I also accept the submission that has been made by learned counsel appearing for the father that not a great deal of weight should be reposed in the expressed views of the eldest child.  I accept the efficacy of his submissions that those views may well be distorted by reason of the disruption which has been experienced in the lives of the children over the course of 2010, which may be summarised by referring to their move from far north Queensland to far south rural New South Wales in January 2010, their adjustment to the blended family involving Ms C and her children, and the retention of the children by the mother in both April and July 2010.

11. For those reasons, I conclude that the orders that I am about to announce are both practicable and in the best interests of the children.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 27 September 2010.

Associate: 

Date:  27 September 2010