BRACKEN & WOODHOUSE

[2011] FamCA 153

FAMILY COURT OF AUSTRALIA

BRACKEN & WOODHOUSE [2011] FamCA 153

FAMILY LAW - CHILDREN – Magellan case – mother alleges children are exposed to unacceptable risk of sexual abuse by the father’s partner’s children – inconsistencies in evidence – allegations of sexual abuse not substantiated – mother and mother’s partner allege  youngest child is sexual danger to their child – youngest child has no sexual intent – allegations not substantiated

FAMILY LAW - CHILDREN – Physical abuse - mother alleges children are exposed to unacceptable risk of physical abuse by the father’s partner’s children – physical altercations between the children and the father’s partner’s children resulted from childhood disagreements - father alleges physical abuse of the youngest child by the mother’s partner – risk of physical abuse in the mother’s household is not unacceptably high

FAMILY LAW - CHILDREN – With whom the children shall live – children’s views – eldest child has strong wish to live with the mother – eldest child is mature – father abides by eldest child’s views – significant weight given to eldest child’s views – youngest child is primarily attached to the father – emotional abuse of the youngest child by the mother’s partner – family dynamics – youngest child has good relationships with father’s partner and step-siblings – separation of siblings – disparate ages, personality and maturity between the eldest and youngest child – parental conflict – eldest child to live with the mother – mother has sole parental responsibility for eldest child –  youngest child to live with the father – father has sole parental responsibility for the youngest child – presumption of equal shared parental responsibility rebutted

FAMILY LAW - CHILDREN – With whom the children spend time – distance between the mother’s residence and father’s residence – reasonably practicable only for children to spend school holiday time together – telephone communication

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT: Mr Bracken

RESPONDENT: Ms Woodhouse

INDEPENDENT CHILDREN’S LAWYER: Mr Scally, Legal Aid NSW

FILE NUMBER: SYC 2624 of 2010

DATE DELIVERED: 9 March 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 14, 15, 16 & 17 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mooney

SOLICITOR FOR THE APPLICANT: Steven Ward & Co

COUNSEL FOR THE RESPONDENT: Ms Cotter-Moroz

SOLICITOR FOR THE RESPONDENT: The Family Law Firm

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Scally, Legal Aid NSW

Orders

1. All former parenting orders in respect of the children J, born … December 1998, and A, born … May 2004, (“the children”) are discharged.

2. The mother shall have sole parental responsibility for J.

3. J shall live with the mother.

4. The father shall have sole parental responsibility for A.

5. A shall live with the father.

6. Each of the parties shall take all reasonable steps to ensure that J spends time with the father and A, during New South Wales public school holidays, for the second half of such holidays in every odd numbered year, and for the first half of such holidays in every even numbered year.

7. Each of the parties shall take all reasonable steps to ensure that A spends time with the mother and J, during New South Wales public school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year.

8. For the purposes of implementation of Orders 6 and 7 hereof, the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the children are due to return to school, and the mid point is the day halfway between those first and last days.

9. Whenever A spends time with the mother pursuant to Order 7 hereof, the mother is restrained from causing or permitting A to be left in the unsupervised care of Mr R.

10. Unless otherwise agreed in writing, for the purposes of implementing the time spent by the children with the parties, the parties shall cause the exchange of the children between themselves or their nominees at 12.00 noon on the days that such periods commence and conclude at B, NSW.

11. Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that J communicates privately by telephone with the father and A, when he is not spending time with the father:

    a)Each Tuesday and Thursday between 6.30pm and 7.00pm,

    b)On Father’s Day each year between 9.00am and 9.30am,

    c)On 1 December each year between 4.30pm and 5.30pm, and

    d)On Christmas Day each year between 9.30am and 10.00am

12. Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that J communicates privately by telephone with the mother, when spending time with the father, each Tuesday and Thursday between 6.30pm and 7.00pm.

13. Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that A communicates privately by telephone with the mother and J, when he is not spending time with the mother:

    a)Each Tuesday and Thursday between 6.00pm and 6.30pm,

    b)On Mother’s Day each year between 9.00am and 9.30am,

    c)On 30 May each year between 4.30pm and 5.00pm, and

    d)On Christmas Day each year between 9.00am and 9.30am

14. Unless otherwise agreed in writing, the parties shall take all reasonable steps to ensure that A communicates privately by telephone with the father, when spending time with the mother, each Tuesday and Thursday between 6.00pm and 6.30pm.

15. For the purpose of implementing Orders 11 and 13 hereof:

    a)The father shall telephone the mother each Tuesday at 6.00pm on the telephone number provided to him by the mother,

    b)The mother shall telephone the father each Thursday at 6.00pm on the telephone number provided to her by the father,

    c)The parties shall ensure that the children are each able to participate in the telephone communication each Tuesday and Thursday between 6.00pm and 7.00pm

    d)The father shall telephone the mother on Father’s Day and on 1 December each year, at the nominated time, on the telephone number provided to him by the mother, and the mother shall ensure that J is able to receive the father’s calls on that number at those times.

    e)The mother shall telephone the father on Mother’s Day and on 30 May each year, at the nominated time, on the telephone number provided to her by the father, and the father shall ensure that A is able to receive the mother’s calls on that number at those times.

    f)The father shall telephone the mother each Christmas Day at 9.00am on the number provided to him by the mother, and the parties shall ensure that the children are each able to participate in the telephone communication from 9.00am until 10.00am.

16. For the purposes of implementing Order 12, the mother shall call the father on the telephone number provided by the father and the father shall ensure that J is able to receive the mother’s calls on that number at those times.

17. For the purpose of implementing Order 14 hereof, the father shall call the mother on the telephone number provided by the mother and the mother shall ensure that A is able to receive the father’s calls on that number at those times.

18. Each of the parties shall take all reasonable steps to ensure that, within 3 months of the date of these orders, they have a home computer equipped with webcam and a current subscription to the “Skype” internet communication program, and that thereafter the children are permitted reasonable access to the computer to enable internet communication with the non-residential parent and sibling.

19. Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.

20. Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

21. 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.

22. The parties shall each authorise and request the principal of any school attended by the children to provide to the other, at the other’s expense, copies of all school reports and school photograph order forms relating to the children.

23. 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, email address, and “Skype” address.

24. The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer, and furnish to one another evidence of their satisfactory completion of the program.

25. The mother shall cause J to continue counselling at the Children and Adolescent Mental Health Service for as long as is deemed necessary by that Service, and to facilitate that counselling the mother shall forthwith provide to the Service a copy of the affidavit of Ms S, psychologist, filed on 9 December 2010.

26. In the event of either party notifying either the police or a prescribed child welfare authority that either child has been or is the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:

    a)         A copy of these orders

    b)        A copy of these reasons for judgment

    c)A copy of the affidavit of Ms S, psychologist, filed on 9 December 2010.

27. Forthwith upon the making of these orders the Independent Children’s Lawyer shall attend upon the children and explain to them the meaning of these Orders.

28. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.

29. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period, or compliance with Orders 24 and 27, whichever is the latter.

30. Costs are reserved for 28 days.

31. Any and all outstanding applications are dismissed.

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

REASONS FOR JUDGMENT

Introduction

1. This litigation entails adjudication of the dispute between the parties over the parenting orders that meet their children’s best interests.

2. The parties previously reached agreement about such orders in November 2006, but events in the children’s lives have moved on since then. The father and children relocated from far north Queensland to far south NSW in January 2010 and more recently the mother has raised allegations of sexual abuse concerning the children which cast both of the children as victims and one of the children as a potential perpetrator.

3. There was a substantial difference between the two children in age, personality, and their attachments. The unorthodox prospect of separating the children by having one live with the mother and the other live with the father became a prominent feature of the case and evolved as an irresistible outcome.

Proposal and primary evidence of father

1. The father abandoned reliance upon the proposal set out within his Initiating Application filed on 22 April 2010, requiring the parties’ adherence to past parenting orders made on 8 November 2006. At the commencement of the trial the father tendered a minute of the fresh orders he proposed,[1] which fresh orders were premised upon the opinions and recommendations contained with the report of the single expert.

   [1] Exhibit F1

2. Although the father commenced the case by proposing that the parties have equal shared parental responsibility for the children, he concluded the case by submitting that the residential parent should have sole parental responsibility for the child living with that parent, consistently with the proposal of the Independent Children’s Lawyer.

3. The father proposed that the eldest child live with the mother, that the youngest child live with him, and that both children spend time with one another and the non-residential parent during each school holiday period. The father proposed that the children be exchanged between the parties by a combination of air and vehicular transport.

4. In support of his position the father relied upon:

   a)His affidavit filed on 28 January 2011, and

   b)The affidavit of his partner, Ms C, filed on 27 January 2011.

Proposal and primary evidence of mother

1. The mother began the case pressing for the orders set out within her Amended Response filed on 21 December 2010, but concluded the case by tendering a fresh minute of orders during final submissions.[2]

   [2] Exhibit M4

2. The mother’s final proposal was that the parties have equal shared parental responsibility for the children, that both children live with her, and that the children spend time with the father on two weekends during school terms and during school holiday periods. The mother proposed that the parties exchange the children at the home of the maternal grandmother in M or at a previously used venue at B, NSW, depending upon whether the exchange occurred during school term or school holidays.

3. In support of her position the mother relied upon:

   a)Her affidavit filed on 25 January 2011,

   b)The affidavit of her partner, Mr R, filed on 25 January 2011, and

   c)The affidavit of the Family Consultant, Ms F, affirmed on 21 July 2010.

4. The Family Consultant was not required for cross examination by either the father or Independent Children’s Lawyer.

Proposal of independent children’s lawyer

1. The Independent Children’s Lawyer did not begin the trial with any fixed attitude, but during the course of the evidence tendered a minute of proposed orders.[3] His proposal was that the eldest child live with the mother, who would have sole parental responsibility for that child, and that the youngest child live with the father, who would have sole parental responsibility for that child, with the children to spend school holiday time together in the households of the parents on an equal basis. It was proposed that changeovers occur at the venue at B, NSW previously used by the parties.

   [3] Exhibit ICL2

2. The Independent Children’s Lawyer relied upon:

   a)The Magellan Report dated 28 October 2010, furnished to the Court by the NSW Department of Human Services (“the Department”) pursuant to the Court’s order made on 27 September 2010.

   b)The affidavit of the single expert, Ms S, psychologist, filed on 9 December 2010.

3. The single expert witness was cross examined by both parties and the Independent Children’s Lawyer. I reject the mother’s ultimate submission that the evidence of the single expert was worthless by reason of bias against the mother and/or her partner. The single expert adhered to the opinions and recommendations expressed within her report and competently explained why that was so. I found her evidence reasoned, logical, and persuasive. The fact that the single expert expressed a more critical opinion of the mother’s partner than about others is not of itself proof of bias. Rather, it was merely an incident of the professional task she was appointed to undertake, namely to form and express opinions about the dynamics of the inter-personal relationships within the families of which the children are part.

4. In any event, the single expert’s perception of Mr R’s demeanour of intimidation was corroborated by the father’s evidence about similar experiences with him. I accept that, in telephone conversations, Mr R told the father he would break his arm, that he should bring his “A game” to Court when he gave his evidence at trial as Mr R would be watching him,[4] and called him a “fucking wanker”.[5] Mr R also challenged the father in a telephone conversation about him holding any belief that Mr R was a threat to the youngest child based upon the opinions of the single expert, to whom he referred as a “stupid bitch”.[6] The father felt sufficiently frightened of the consequences of his answer that he needed to placate Mr R by falsely telling him that he entertained no such belief.

   [4] Exhibit F5

   [5] Father’s affidavit, par 45

   [6] Exhibit F4

Background

1. The following chronology is largely uncontroversial, but in the event of dispute in the evidence, factual statements represent factual findings.

2. The parties began a relationship in December 1997 in M, NSW.[7] They later moved together to far north Queensland, where they lived until they finally separated in December 2003.[8]

   [7] Father’s affidavit, par 2; Mother’s affidavit, par 3.2

   [8] Father’s affidavit, par 2, 4; Mother’s affidavit, par 3.2

3. At the time of separation the parties had one child and the mother was pregnant with their second. The two children of the parties are J, born in December 1998, and A, born in May 2004.[9] At the time of the trial the children were aged 12 and 6 years respectively.

   [9] Father’s affidavit, pars 3-4; Mother’s affidavit, par 1.4

4. Immediately following separation the mother returned to M with the eldest child. The parties encountered difficulties negotiating the time that would be spent by the eldest child with the father.[10] Those problems continued after the birth of the youngest child.

   [10] Father’s affidavit, pars 4, 9; Mother’s affidavit, par 3.3

5. The mother spent some time living between M and far north Queensland, but ultimately decided she wished to live permanently in M. Parenting proceedings in respect of the children were commenced between the parties in the Federal Magistrates Court at M, which proceedings were transferred to far north Queensland with the intention of being heard there.[11]

   [11] Mother’s affidavit, pars 3.3-4.5

6. The maternal grandmother believed the mother’s parenting capacity was so impaired at the time that she provided an affidavit explaining her concerns about the mother for the father’s use in the litigation.[12] The mother admitted in cross examination that she was so incensed at the maternal grandmother’s support of the father in preference to her that she temporarily changed her surname.

   [12] Father’s affidavit, par 68; Single expert report, page 6 par 2

7. The parties compromised the proceedings when final parenting orders were made by the Federal Magistrates Court in far north Queensland on 8 November 2006.[13] The orders were made with the consent of the parties, who both had the benefit of independent legal advice.[14]

   [13] Father’s affidavit, par 10; Mother’s affidavit, par 5.2

   [14] Single expert report, page 7 par 1

8. In the knowledge or at least expectation of the mother’s intended return to reside permanently in M, the effect of those orders was to:

   a)Allocate to the parties equal shared parental responsibility for the children (Order 1.3).

   b)Have the children live with the father (Order 1.2).

   c)Have the children spend time with the mother:

   i)Pending her move to M – for the same amount of time the children lived with the father, on a weekly rotation between the parties.

   ii)After her move to M – on one weekend per month in the locality of the father’s residence, for the whole of the school holidays during the year, and for half of the Christmas school holidays (Order 1.5).

d)Provide for communication between the children and the mother by telephone on four occasions each week (Order 1.5(e)), and also by email and webcam (Order 1.15).

e)Share between the parties the cost of implementing the parenting orders, which costs included airfares and accommodation (Orders 1.6-1.10).

1. After those orders were made, the mother permanently departed far north Queensland and returned to M. She has remained living in the M and surrounding areas ever since. The mother chose not to avail herself of the orders providing for the children to reside with her for equal time in far north Queensland.

2. At or about the time the mother moved back to M in November 2006, she formed a relationship with her current partner, Mr R.[15] They began cohabitation in early 2007 and have remained together ever since. Three children have been born to their relationship.[16]

   [15] Single expert report, page 7 par 3

   [16] Mother’s affidavit, par 2.6

3. The children remained living with the father in far north Queensland following the orders being made between the parties in November 2006.[17] Arrangements were made for the children to spend time with the mother in most, but not all, school holiday periods after that time.[18]

   [17] Single expert report, page 2

   [18] Mother’s affidavit, pars 5.4-6.1

4. Any dissatisfaction the mother felt about dealing with the father over implementation of the parenting orders,[19] she put to one side. The mother did not ever petition the Court for further orders in reliance upon the parties’ express agreement to review the parenting orders at interval periods of six months.[20] Even the present proceedings were commenced by the father, and then not until April 2010.

   [19] Mother’s affidavit, par 5.3

   [20] Order 31 made on 8 November 2006

5. Whilst living in far north Queensland with the children the father formed a relationship with his current partner, Ms C, who lived with her two children in G, NSW. They began visiting one another in 2008. Ms C decided to relocate with her children from G to live with the father in far north Queensland but was precluded from doing so by parenting orders made in other proceedings between her and her former husband relating to their children.[21]

   [21] Father’s affidavit, pars 27, 29; Exhibit F6

6. As a consequence, the father decided to relocate with the children from far north Queensland to live with Ms C and her children in G. The father informed the mother of that decision in the school holidays in October 2009, when they exchanged the children between them.[22] The mother was content with that decision because the children would be closer to her by living in G than they would be by living in far north Queensland.[23] The father and children moved to G in January 2010 and began living with Ms C and her children.[24]

   [22] Mother’s affidavit, par 6.2

   [23] Father’s affidavit, par 30-31

   [24] Father’s affidavit, pars 32-33; Mother’s affidavit, par 6.3

7. Following the move of residence, the parties began exchanging the children at B, NSW.[25] The chosen venue is approximately equidistant between their households.

   [25] Father’s affidavit, pars 33-34; Mother’s affidavit, pars 8.1-8.2, 16.6

8. The children spent time with the mother during the school holidays in April 2010. Whilst the children were with the mother, the mother telephoned the father to advise that she would not be returning the eldest child to him at the conclusion of the holiday.[26] Only the youngest child was returned to the father at the conclusion of the holiday on 17 April 2010.[27]

   [26] Father’s affidavit, pars 34-35

   [27] Father’s affidavit, par 38

9. The eldest child simply refused to return to the father.[28] That did not come as a surprise to the mother because the eldest child began reporting to her that he would prefer to live with her in 2009,[29] and he continued to tell the mother that during the first term of 2010.[30]

   [28] Mother’s affidavit, par 9.4

   [29] Mother’s affidavit, par 6.5

   [30] Mother’s affidavit, par 6.4

10. Within days of his retention, the mother enrolled the eldest child at a local school[31] and lodged forms at Centrelink to include the eldest child as part of her household for income purposes.[32]

    [31] Mother’s affidavit, par 9.5

    [32] Father’s affidavit, par 43

11. The father responded to the mother’s retention of the eldest child by filing an Initiating Application in the Local Court of NSW at G on 22 April 2010 seeking a recovery order in respect of the child. The father’s Application was made returnable on 27 April 2007, on which day the proceedings were heard on an ex parte basis[33] and then adjourned until 30 April 2010 (see Bracken v Woodhouse [2010] FamCA 873 at [8]).

    [33] Father’s affidavit, pars 39-40

12. The father spoke with the mother by telephone on 27, 28, and 29 April 2010, and on each occasion asked the mother whether she intended returning the child to him. On each occasion the mother refused to do so.[34]

    [34] Father’s affidavit, pars 40-44

13. The mother was aware the matter was due back before the Court at G on Friday 30 April 2010.[35] The recovery order in respect of the child was made by the Court that day and was executed by police on 1 May 2010, as a consequence of which the eldest child was returned to the care of the father.[36]

    [35] Mother’s affidavit, pars 10.6-11.2, Annexure B

    [36] Father’s affidavit, pars 46-50; Mother’s affidavit, pars 11.3-11.11

14. The mother had instructed her solicitor to lodge an appeal against the recovery order,[37] but the appeal was rendered nugatory by the execution of the order and the return of the eldest child to the father, so the appeal was later dismissed by this Court on 7 June 2010 (see Bracken v Woodhouse [2010] FamCA 873 at [9-10]) in order that the parties could then proceed to contest the existing parenting orders.

    [37] Mother’s affidavit, par 11.2.3

15. The children returned to the mother to spend time with her in the mid-year school holidays in July 2010. The parties then fell into dispute about the return of both children to the father.[38] On that occasion both children were retained by the mother and she again lodged forms at Centrelink to include the children as members of her household for income purposes.[39] The children were enrolled by the mother at the local school.[40]

    [38] Father’s affidavit, pars 55-57; Mother’s affidavit, pars 12.13-12.17, 14.8-14.13

    [39] Father’s affidavit, par 58

    [40] Mother’s affidavit, pars 15.1, 16.1

16. The decision by the mother to retain both children in July 2010 was formed by the mother following her observation of sexualised behaviour exhibited by the youngest child towards a younger child of the mother and Mr R,[41] and the contemporaneous disclosure made to her by the youngest child about sexual abuse committed upon him by one of Ms C’s children within the father’s household.[42]

    [41] Mother’s affidavit, pars 13.1-13.4; Single expert report, pages 10, 61

    [42] Mother’s behaviour, par 13.4-13.9; Single expert report, pages 10 par 4, 61 par 5

17. The parties and children met with the Family Consultant for interviews on 15 July 2010,[43] two days after the youngest child’s disclosure to the mother on 13 July 2010. During the interviews the eldest child disclosed sexual and physical abuse of both of them, but predominantly of the youngest child, by one of Ms C’s children. However, the youngest child made no disclosure to the Family Consultant of any abuse at all by Ms C’s children.

    [43] Mother’s affidavit, par 14.3; Affidavit of Family Consultant

18. The mother then reported the youngest child’s disclosure to the Department[44] and the children were subsequently interviewed at the mother’s home on 19 July 2010 by Department officers,[45] rather than by specialist officers of the NSW Joint Investigation Response Team.[46] In the course of those interviews the children made allegations of sexual and physical abuse committed upon them in the father’s home by the children of Ms C. The allegations were different in nature from those previously made by the children to the mother and the Family Consultant.

    [44] Mother’s affidavit, par 14.1

    [45] Mother’s affidavit, pars 14.14-14.15

    [46] Single expert report, page 68; Father’s affidavit, par 90

19. Although the Department regarded the risk of sexual harm to the children substantiated, no action was taken other than the referral of the youngest child to counselling.[47]

    [47] Magellan Report, pages 2-3

20. The competing applications of the parties for interim parenting orders were later determined before the Court on 27 September 2010, at which time orders were made to the following effect (see Bracken v Woodhouse [2010] FamCA 873):

    a)The prior orders made in November 2006 were suspended (Order 1).

    b)Equal shared parental responsibility for the children was allocated to the parties (Order 2).

    c)The children were to live with the mother (Order 3).

    d)The children were to spend time with the father for a week in the school holidays in October 2010 and for more than two weeks in the Christmas school holidays (Orders 4(a), 4(b)) in the absence of Ms C’s children (Order 6).

    e)The children were to have frequent telephone communication with the parties (Order 7).

21. At that time the matter was classified into the “Magellan” protocol of the Court and other procedural orders were made to afford the matter an expedited hearing. A Magellan Report was requested of the Department and the single expert was appointed.

22. The children spent time with the father pursuant to the interim orders in the October and Christmas school holidays,[48] but the children’s telephone communication with the father was not implemented satisfactorily.[49]

    [48] Father’s affidavit, pars 122, 148; Mother’s affidavit, par 16.6

    [49] Father’s affidavit, pars 123-147

23. The parties, their partners, the children, and Ms C’s children were interviewed by the single expert in November 2010. The single expert’s affidavit was filed on 9 December 2010.

24. The trial commenced on 14 February 2011 and concluded on 17 February 2011.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“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). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. 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).

7. 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.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. It is uncontentious in this case that the children dearly love, and have meaningful relationships with, both parties.

2. Nor is it contested that, whatever orders are made by the Court, it is essential that the meaningful relationships enjoyed by each child with each party need to be preserved and promoted. Both children will unquestionably benefit from such an outcome.

3. The controversy between the parties is largely confined to the physical and emotional safety of the children within one another’s household. The parties’ criticism is directed towards members of the other party’s household rather than at one another. The mother believes that the children are exposed to sexual and physical abuse by Ms C’s children in the father’s household, whereas the father believes that the children are exposed to physical and emotional abuse by Mr R in the mother’s household.

Section 60CC(2)(b)

1. The allegations of sexual and physical abuse in this case involving the children are multitudinous and comprise:

   a)Allegations of sexual abuse committed upon the children by Ms C’s children, OC and NC, within the father’s home.

   b)Allegations of physical abuse committed upon the children by Ms C’s children within the father’s home.

   c)Allegations of actual or attempted sexual abuse committed by the youngest child on Z, a child of the mother and Mr R, within the mother’s home.

   d)Allegations of physical abuse committed upon the children by Mr R in the mother’s home.

2. Each of the allegations, if sustained, has the capacity to cause physical and/or psychological harm to the children, against which risk the Court must be vigilant.

3. It is convenient to firstly deal with the allegations concerning conduct within the father’s household and then with those concerning conduct within the mother’s household.

4. In December 2008 the eldest child reported to the mother that OC had put his penis on or near his face at night when he was going to sleep.[50] Although the mother said nothing in her affidavit about confronting the father with such information, she asserted to the single expert that she had done so to no avail.[51] In any event, she made no official report or complaint about the disclosure. She remained content to abide by the orders made in November 2006.

   [50] Mother’s affidavit, par 7.1; Single expert report, pages 8 par 4, 69 par 5

   [51] Single expert report, page 8 par 4

5. The mother deposed in her affidavit that she heard no further reports about sexually orientated misconduct involving the children in the father’s home until April 2010.[52] Surprisingly, the mother did not adhere to that evidence. When cross examined, the mother said that evidence was false. She alleged the eldest child made numerous other disclosures to her in the period between January and April 2010, which she catalogued as being OC and NC hitting both children, OC putting his penis in the eldest child’s face, and OC running around with his pants down. Thereafter, cross examination exposed other inconsistencies between the mother’s affidavit and her oral evidence.

   [52] Mother’s affidavit, par 7.8

6. The inconsistencies in the mother’s evidence were unsatisfactory, as was her explanation for them. She glibly said words to the effect “I may not have paid attention to the wording in my affidavit I’m sorry.”

7. Although unknown to the mother until during these proceedings, a risk of harm report was made to the Department on 9 January 2010 in relation to the eldest child, OC, and NC.[53] The unidentified reporter told the Department that OC and NC were observed in sexualised play together, and when questioned, OC reported that he had observed the eldest child “holding his penis and pulling it up and down” but neither he nor the eldest child had touched one another’s genitals. OC’s representations and the report to the Department excluded mention of the youngest child altogether. The Department disregarded the report and closed its file without interviewing Ms C, the parties, the children, or Ms C’s children.

   [53] Magellan Report, page 2

8. The reporter of that incident was later identified to Ms C as her estranged husband. The report was made during the course of litigation between them,[54] and that litigation ended by Ms C’s husband agreeing to the children remaining in her care, despite his apparent concern about their children. Even though the mother seized upon those allegations as evidence of sexual impropriety within the father’s household, given the allegations were made in conflicted circumstances, were not the subject of sworn and tested evidence, and the reporter later acted in a way consistent with abandonment of concern over the allegations, I repose no weight in them.

   [54] Single expert report, pages 48-49, 72

9. In reality, it was not until April 2010 that the mother became concerned about the children. On a visit to the mother during the school holidays in April 2010, the eldest child gave the mother his journal and asked her to read it, which the mother did.[55] It is clear from comments later made by the eldest child to the single expert that he was aware he was writing at least some parts of the journal intending that the mother would use it as evidence in these proceedings.[56]

   [55] Mother’s affidavit, pars 8.2-8.4; Single expert report, page 9 par 2

   [56] Single expert report, page 24

10. The language used by the child in the journal is graphic.[57] The child wrote of a sexual encounter between him and an unrelated child at a scout camp the year before,[58] but made no other disclosures of a sexual nature relating to himself, the youngest child, or Ms C’s children. The eldest child simply disparaged Ms C’s children in profane terms.

    [57] Mother’s affidavit, Annexure A

    [58] Single expert report, page 9 par 4

11. The mother was understandably surprised and distressed by the contents of the journal, but she was not then alarmed by any perception of sexual impropriety between the children and Ms C’s children.

12. Although the mother told the single expert that the eldest child reported to her in about April 2010 that OC was hitting the youngest child and had put his penis on the youngest child’s face,[59] the occurrence of such reports by either child is not the subject of any evidence in the mother’s affidavit, nor in any other contemporaneous records.

    [59] Single expert report, page 9 par 5

13. The only evidence adduced by the mother of disclosures made to her in or about April 2010 is of the eldest child’s report that he had seen pornographic movies on the father’s computer,[60] and she apparently did not see fit to raise that allegation with the father at the time.

    [60] Mother’s affidavit, pars 9.1-9.3

14. On 17 April 2010, at the conclusion of the school holidays, the mother returned the youngest child to the father but retained the eldest child with her.[61] The mother reported to the single expert that she was prepared to return the youngest child to the father because she held no concerns for the safety of the youngest child with the father at that point in time.[62]

    [61] Mother’s affidavit, par 9.4

    [62] Single expert report, page 10 par 1

1. Accordingly, in April 2010, the mother was unconcerned about the welfare of the youngest child living within the father’s household. Logically, that must have been because she had not received any reports of him being abused in any way, or if she had received such reports, she dismissed them as unconvincing.

2. The mother’s retention of the eldest child in April 2010 was due to him expressing a strong desire to stay with the mother, which sentiments he had been expressing for more than 12 months. The mother’s decision was unrelated to the child’s disclosure in December 2008 about his alleged sexual abuse by OC because the mother had been happily returning both children to the father for the intervening 15 months in the knowledge that they would be living with, or at least visiting, Ms C’s children. Even though the mother was aware the children would not live permanently in the same household as Ms C’s children until January 2010,[63] the mother returned the children to the father uneventfully following their time with her in the Christmas holidays over December 2009 and January 2010.

   [63] Mother’s affidavit, par 7.9

3. The father successfully obtained a recovery order in respect of the eldest child, which was executed on 1 May 2010. The eldest child was then returned to the father. Only two days later, on 3 May 2010, the mother made a report to the Department about the risk of harm to the children in the father’s household.[64] The mother’s evidence that she made that report to the Department in April 2010 is incorrect.[65]

   [64] Magellan Report, page 2; Single expert report, page 69 par 2

   [65] Mother’s affidavit, par 12.5

4. If, as the mother asserted, she was truly horrified by the contents of the eldest child’s journal and felt the need to report her concerns to the Department, she was able to suspend her horror and concern for some weeks until the father had recovered the eldest child from her by way of court order. Her report to the Department would likely have been immediate, or at least contemporaneous with the eldest child’s disclosure, if she was as concerned as she professes. Moreover, the mother omitted to say anything to the Department about the eldest child’s sexual abuse by the unrelated child on the scout camp the year before. The most compelling inference is that the motive for the mother’s report to the Department was her indignation at the father’s recovery of the eldest child and her desire to enlist the Department’s assistance in the procurement of a return of at least the eldest child to her.

5. Moreover, the report actually made by the mother to the Department at that time is inconsistent with her evidence. The Department recorded that the mother complained of OC placing his penis in the eldest child’s face.[66] According to the mother’s evidence, the eldest child made no such disclosure to her in April 2010, nor did the eldest child say any such thing in his journal. That particular allegation was only made by the eldest child to the mother in December 2008, and the mother had done nothing about it. 

   [66] Magellan Report, page 2

6. The father returned both children to the mother to spend time with her during the July 2010 school holidays.

7. During those holidays, on 13 July 2010, the mother observed the youngest child to act towards Z in a way she perceived to be sexually inappropriate. She spoke with the youngest child about the episode and in the course of that conversation the child told the mother:[67]

   “[OC] puts his mouth on my penis and sucks it.”

   and:

   “…it happens every day and I am sick of it.”

   [67] Mother’s affidavit, par 13.5-13.9; Single expert report, pages 10-11

8. Interviews with the Family Consultant were already arranged to take place two days later on 15 July 2010.[68] At that time the children were both interviewed by the Family Consultant.

   [68] Mother’s affidavit, par 14.3

9. The eldest child reported to the Family Consultant that OC was being sexually and physically abusive towards them in the father’s home, but mostly towards the youngest child.[69] However, the extent of the sexual misconduct then alleged was OC and NC doing “rude stuff”, which in relation to the youngest child involved “pull[ing] his pants down”.[70] As for the physical abuse, the eldest child reported that OC “hits and kicks” them.[71]

   [69] Affidavit of Family Consultant, page 3

   [70] Affidavit of Family Consultant, page 4;

   [71] Affidavit of Family Consultant, page 4

10. The extent of the disclosures made by the youngest child to the Family Consultant was that OC and NC “boss me around”, and that the father occasionally smacked him on the bottom with an open hand when he did not go to bed as instructed.[72] He made no mention of any sexualised conduct.

    [72] Affidavit of Family Consultant, page 6

11. The mother made another report of her concerns to the Department on 18 July 2010. She reported to the Department that the youngest child had told her:[73]

    “[OC] puts my penis in my mouth and sucks it (sic).”

    [73] Magellan Report, page 2; Mother’s affidavit, par 14.1

12. Following the mother’s report, the children were promptly interviewed by officers of the Department on 19 July 2010.[74]

    [74] Mother’s affidavit, par 14.14; Affidavit of Mr R, par 50

13. The youngest child reported to the officers that NC pulled down his own pants to expose his “willy”, as frequently as every day, and that NC puts his “willy” on the youngest child’s “willy”.[75] Significantly, no allegation was made of his penis being sucked. In fact, when the youngest child was asked directly about that he denied it had occurred. The youngest child’s allegations were confined to NC and did not involve OC at all. The differences between what the youngest child told the officers of the Department, the Family Consultant, and the mother over a period of only a few days are astounding.

    [75] Magellan Report, page 3; Exhibit M2

14. The eldest child reported to the officers that OC pulled down the youngest child’s pants every day, that OC had touched the eldest child on “the privates” on the outside of his clothing, and that he had seen OC “flop [his penis] around”.[76] All of the eldest child’s allegations pertained to OC, not NC, and his allegations against OC were completely fresh because he had only previously mentioned impropriety by OC in December 2008.

    [76] Magellan Report, page 3; Exhibit M3

15. On the strength of those allegations, the officers of the Department regarded the children as being in need of care and protection.[77] The mother alleged it was only upon the formation of that view by the Department that she decided to retain both children, and that beforehand she was prepared to let them both return to the father.[78]

    [77] Magellan Report, page 3 par 8

    [78] Single expert report, page 11 par 2

16. The mother told the single expert that the eldest child “vented” to his teacher and school counsellor about OC’s sexual misbehaviour,[79] but there is no corroborative evidence before the Court of that having occurred.

    [79] Single expert report, page 13 par 4

17. In November 2010 the children were interviewed by the single expert. Both children again gave inconsistent accounts to the single expert of their physical and sexual abuse in the father’s home by Ms C’s children.[80] In particular:

    a)The eldest child confessed he did not know if OC had done anything inappropriate with the youngest child, and that the youngest child had made no such complaint of it to him. The eldest child then later said the mother told him the youngest child had reported to her that OC had sucked “his privates”. The eldest child expressed doubts that had happened, and then promptly reversed his opinion and said it probably had.

    b)The youngest child said he knew that OC and NC were naughty, but only because the mother told him so. He could not remember any “bad things” they had done. The child then professed a memory that both OC and NC had “sucked” his “willy” at the father’s home, as frequently as every few days. The child then said only OC had done that and NC had done no such thing, but then said perhaps NC had done it also. When confronted with the inconsistencies in his statements the child simply said he could not remember because the mother had told him about it.

    c)The youngest child denied that he was smacked by the father,[81] contradicting his comments to the Family Consultant.

    [80] Single expert report, pages 23-24, 26, 28-30, 31, 68, 70-71

    [81] Single expert report, page 59 par 5

18. The conclusion is inescapable that the representations of the children are unreliable. The differing accounts they each gave of sexual misconduct by Ms C’s children from April 2010 onwards are irreconcilable. The evidence of the mother is also inconsistent with her accounts to the Department and the single expert, which deprives her evidence of veracity.

19. Apart from the deficiencies in the evidence, it is inherently improbable that the eldest child, who is pubescent and holds an obvious height and weight advantage and position of emotional power over Ms C’s children, would permit OC to sexually abuse him against his will.[82] The eldest child’s maturity is distinguishable from that of the other children. It may well be that the eldest child touched or handled his own genitals in view of Ms C’s children and sought to deflect blame for that exposure to them.[83] There is no need to make a finding about that.

    [82] Single expert report, pages 74-75

    [83] Single expert report, page 49

20. The single expert found that Ms C’s children, who are still only aged 8 and 6 years respectively, have age-appropriate innocence about issues of sexuality and did not display any eroticism.[84] There is no evidence of sexualised behaviour in their other peer relationships.[85] Similarly, the mother conceded to the Department that the youngest child is devoid of sexual intent.[86]

    [84] Single expert report, pages 52, 71

    [85] Single expert report, page 72 par 1

    [86] Magellan Report, page 3

21. I agree with the conclusion of the single expert that little, if any, weight can be reposed in any allegations that Ms C’s children perpetrated sexual abuse upon either of the children.[87] There may have been some innocent tomfoolery between the children and Ms C’s children on occasions, but I am not satisfied that such conduct could properly be construed as sexual abuse of the children by Ms C’s children. The single expert said that, aside from the allegation of the youngest child’s penis being sucked, behaviour such as flaunting a penis and pulling pants down is not abnormal behaviour for young boys and is not behaviour imbued with sexual connotation.

    [87] Single expert report, page 80 par 4

22. I am not satisfied that the youngest child’s penis was sucked either by OC, as he told the mother and the single expert, or NC, as he unconvincingly told the single expert. The child’s intervening express denial of any such behaviour to officers of the Department, his omission to report such behaviour to the Family Consultant, and the inconsistencies in his reports of such behaviour to the mother and single expert render the youngest child’s representations utterly unreliable.

23. The youngest child was only 6 years of age when those allegations were discussed with him across the period between July and November 2010, so some inconsistency in his reports might be reasonably expected. However, as the single expert said, the inconsistency would likely be confined to peripheral detail. The child should have been able to give a consistent and coherent series of core reports about an experienced traumatic event. The fact that he was unable to do so suggests that he has no memory of the events he intermittently described. The single expert said the child had no “event memory”, which was demonstrated by his final comment to the single expert when asked to clarify the confusion:[88]

    “I don’t remember it. I think Mum just told me about it.”

    [88] Single expert report, page 31 par 4

24. In view of the comments made by each child to the single expert, she concluded there was a high probability the issue of sexual abuse by Ms C’s children in the father’s home had been the subject of discussion with both children within the mother’s home. The children’s reports were therefore likely contaminated by information they gleaned from the mother.

25. I am not satisfied that there is an unacceptable risk of either child being subjected to sexual abuse within the father’s household. The father and Ms C are now well aware of the allegations and I accept that they will be careful to prevent such behaviour. They only learned of the allegations from the Family Consultant in July 2010 and then immediately moved proactively to address the issue by taking Ms C’s children to a psychologist to receive “protective behaviours” training[89] and by keeping the children separated from Ms C’s children in accordance with interim orders.[90] The father thoughtfully contemplated the problem presented by the allegations. He rationally told the single expert he doubted such sexual conduct had occurred but was not prepared to dismiss the allegations out of hand.[91]

    [89] Single expert report, pages 50 par 1, 72 par 1

    [90] Order 6 made on 27 September 2010

    [91] Single expert report, page 40

26. The allegations of physical abuse of the children by Ms C’s children are trifling. There may have occasionally been some physical altercations, but such childhood disagreements must be differentiated from physical abuse.

27. The eldest child said that NC, who is half his age, would smack his bottom and then giggle when chastised by the eldest child.[92] The eldest child’s earlier allegation to the Family Consultant of the children being hit and kicked[93] by Ms C’s children seems exaggerated. The eldest child is substantially older and bigger than Ms C’s children and the allegation that Ms C’s children hit and kicked them was made when the eldest child was clearly trying to make a case for his move to the mother’s household. The single expert found the allegation quite contradictory to what she observed about the dynamics of the children’s relationships.[94]

    [92] Single expert report, page 24 par 3

    [93] Affidavit of Family Consultant, page 4

    [94] Single expert report, page 73 par 3

28. The youngest child simply said that he was “bossed around” by Ms C’s children.[95] The youngest child’s allegation of occasionally being smacked on the bottom by the father[96] was admitted by the father in cross examination. I accept the father’s evidence that it is not a disciplinary practice he continues. The youngest child reported the same form of disciplinary treatment in the mother’s household.[97]

    [95] Affidavit of Family Consultant, page 6

    [96] Affidavit of Family Consultant, page 6

    [97] Single expert report, page 59

29. I am not satisfied that the children are at any appreciable risk of physical or psychological harm through subjection or exposure to either physical or sexual abuse within the father’s home.

30. The considerations of abuse in the mother’s home are of quite a different type.

31. At some point during early 2009, Mr R observed the youngest child to wave his exposed penis in the face of his child Z, who was then only 6 months of age and lying in a baby bouncer. He immediately telephoned the father to discuss the incident.[98] There is some discrepancy in the evidence about whether that event occurred in July 2009, as Mr R said, or in the period between Christmas 2008 and January 2009, as the mother said.[99] Given that Z was aged 6 months at the time, and he was born on 4 June 2008,[100] the mother is more likely correct about the timing of the incident.

    [98] Affidavit of Mr R, pars 24-26; Single expert report, pages 60-61

    [99] Mother’s affidavit, pars 7.5-7.6; Single expert report, page 8

    [100] Mother’s affidavit, par 2.6(a)

32. I accept that such an incident occurred. Even though the mother did not see it herself, Mr R reported it to her, and Mr R was not challenged that he telephoned the father and spoke about the incident. The father conceded it.[101] However, the youngest child was aged 4 years at that time. His behaviour is comfortably explicable as childhood silliness rather than conduct manifesting sinister intent. Z would hardly have been cognisant of the implications.

    [101] Single expert report, page 39 par 5

33. Some 18 months later, on 13 July 2010, the mother observed the youngest child, who was 6 years old at the time, to slip off the lounge and kneel down in front of Z, who was standing naked in front of him. Z had just run into the lounge room from the bathroom where he had been bathed. The mother perceived that the youngest child was about to put his face in indecent proximity to Z’s genitals.[102] In cross examination the mother estimated the closest distance between the youngest child’s face and Z’s groin at about 20 centimetres.

    [102] Mother’s affidavit, pars 13.1-13.3; Single expert report, page 10 par 3

34. I accept the honesty of the mother’s perception, but the genuineness of her perception does not prove the fact. The mother’s observation of the event and her interpretation of what she thought was about to happen occurred against a background of suspicion about the youngest child’s behaviour. She was aware of what the youngest child had done to Z 18 months before, and she was aware of the eldest child’s reports in December 2008 about sexual misconduct between children in the father’s home, and in April 2010 about the eldest child’s access to pornography in the father’s home.

35. When interviewed by the single expert, the youngest child was quite distressed about the mother and Mr R suspecting him of abusing Z, which he stridently denied.[103] The child’s bemusement about the reaction of the mother and Mr R betrays his lack of appreciation of any impropriety.

    [103] Single expert report, pages 30, 77-78

36. Importantly, there are no reports from independent sources, such as the school or other parents, of the youngest child displaying sexualised behaviour with any other children.[104] The father has certainly not witnessed such behaviour.[105] The absence of evidence of any other aberrant behaviour counteracts the accuracy of the mother’s perception about the event on 13 July 2010.

    [104] Single expert report, pages 13 par 1, 40 par 5

    [105] Single expert report, page 39 par 5

37. In all probability, the mother honestly misconstrued the youngest child’s behaviour towards Z on 13 July 2010. Alternatively, if the youngest child did try and place his face on or near Z’s genitals, it was not an act of deliberate sexual misconduct from which he intended to derive sexual gratification and when the child acquires the maturity to realise the inappropriateness of such behaviour it will cease. Indeed, the mother and Mr R said they had been watching the youngest child closely ever since and that sort of behaviour had not been repeated since late 2010.

38. Although the mother and Mr R adduced no evidence of it in their affidavits, they each reported to the single expert that the youngest child acted in a sexualised way towards Z on two other occasions after July 2010.[106] It is puzzling why such evidence would be omitted by the mother and Mr R from their affidavits, and difficult to accept that it occurred through oversight, given the significance in the proceedings of the youngest child’s alleged sexualised behaviour. I am not satisfied that they fabricated those extra incidents when speaking with the single expert. More likely, the incidents were far more ambiguous when first observed and were discussed between them and added to their recounts to the single expert for good measure.[107]

    [106] Single expert report, pages 12-13, 61-62

    [107] Single expert report, pages 79-80

39. The mother and Mr R believe that the youngest child is a sexual danger to their child Z,[108] which disgusts Mr R.[109] They believe they need to constantly supervise him with their children.[110]

    [108] Single expert report, page 60

    [109] Single expert report, page 61 par 1

    [110] Single expert report, page 62 par 2

40. The youngest child’s awareness of their apprehension about him is emotionally disturbing to him. The single expert asserted that the youngest child is being unfairly scapegoated, particularly by Mr R, which is emotionally abusive to the child.[111] The youngest child is frightened by Mr R and presents as being clinically depressed, which sharply contrasts with his demeanour when in the company of the father and members of his household.[112]

    [111] Single expert report, pages 65, 80-81

    [112] Single expert report, page 78 par 2

1. Although any such emotional harm caused to the youngest child is not a result of subjection or exposure to “abuse” or “family violence”, as defined in the Act, and is not therefore a primary consideration under s 60CC(2) of the Act, it is nonetheless a consideration that weighs heavily as an additional consideration under s 60CC(3) of the Act.

2. As for the risk of physical abuse of the youngest child by Mr R in the mother’s household, the youngest child has been given “dead legs” and Mr R believes he is “like a girl and … needs toughening up”.[113] There is some contradictory evidence about whether he has had chilli powder placed on his tongue as punishment.[114] Although the youngest child reported that he was smacked by the mother and Mr R,[115] the evidence does not lead me to conclude that he is physically abused in that manner. Overall, while there is a risk of physical abuse in the mother’s household, the evidence is insufficient to prove that the risk is unacceptably high.

Child’s best interests – additional considerations

[113] Single expert report, page 38

[114] Single expert report, pages 38, 59; Exhibit F3

[115] Single expert report, page 59 par 4

Section 60CC(3)(a)

1. The eldest child has expressed a desire over the last year to live with the mother. His desire to do so has intensified since his relocation with the father from far north Queensland  to G, NSW in January 2010, about which he was miserable.[116] The eldest child feels much better living with the mother and attending school in that locality.[117]

   [116] Affidavit of Family Consultant, page 4

   [117] Affidavit of Family Consultant, page 5

2. The father knows that to be the case. The father admitted the eldest child remained unsettled following the move to G and began speaking openly about living with the mother. The father said the eldest child had expressed his wish to live with the mother many times. The eldest child was not reticent in sharing his views with the single expert,[118] who concluded that the child formed his genuine wish to reside with the mother as a consequence of his disenchantment about the move from far north Queensland  to G in January 2010.[119]

   [118] Single expert report, pages 25-26

   [119] Single expert report, pages 75-76

3. The father believed the eldest child was speaking truthfully when he made plain his wishes to live with the mother. Although the father still harbours concerns about the eldest child remaining resident in the mother’s household and the validity of the child’s reasons for that decision, he acknowledged the child was adamant. In light of those sentiments the father said words to the effect of “I would love to have both boys, but I need to respect [the eldest child’s] wishes and its clear he wants to stay with his mum.” The father believed the eldest child’s wishes should take precedence over his concerns for the child.

4. That is a very significant factor in the determination of parenting orders for the eldest child. As the single expert said, the eldest child’s wishes need to be given significant weight,[120] particularly when the father accepts their authenticity and is content to abide by them.

   [120] Single expert report, page 81 par 4

5. By comparison, the youngest child’s stated views have been much more equivocal. He told the Family Consultant that he wanted to “spend more time with mum at dad’s” so they could have “a nice family and a happy family”.[121] He later told the single expert that he liked living with the father most because he had more toys at the father’s home.[122]

   [121] Affidavit of Family Consultant, page 6

   [122] Single expert report, pages 28 par 1, 29 par 1

6. Although the youngest child’s expressed views are whimsical, the authenticity of his wish to live with the father is quite clear. He loves his father and is fond of Ms C.[123] The mother admitted in cross examination that the youngest child tells her he misses the father, which did not surprise her. Even the eldest child is well aware of the youngest child’s desire to live with the father.[124]

   [123] Single expert report, page 28

   [124] Single expert report, page 24 par 4

7. While the youngest child’s views have not been clearly expressed, his attachments are evident through the disparate nature of his engagement with members of the respective households. In the opinion of the single expert, the youngest child is primarily attached to the father and would have no conscious memory of life without the father as his primary care-giver.[125] The single expert’s opinion about the quality of the youngest child’s relationships with family members is far more compelling evidence than the child’s expressed views.

   [125] Single expert report, page 66 par 3

Section 60CC(3)(b)

1. The relationships between the children and the parties have already been discussed under s 60CC(2)(a). There is nothing to add. However, there are significant differences between the children’s relationships with other members of the parties’ households.

2. The relationships between the youngest child and Ms C’s children are strong. The father said in cross examination the youngest child is particularly close to NC, which mirrors the single expert’s observations.

3. The same cannot be said for the eldest child. He tolerates Ms C’s children but is often disdainful towards them, telling the single expert “I don’t like them”.[126]

   [126] Single expert report, page 23 par 3

4. The children both had sound relationships with Ms C. That remains the case for the youngest child, but the eldest child’s attitude toward her changed when the families were blended in January 2010.

5. The single expert concluded the youngest child’s relationship with Mr R was counter-productive. Whilst Mr R may think otherwise, the youngest child does not have a warm relationship with him. The youngest child said Mr R is “tough and strong” and sometimes makes him afraid.[127] The relationship between the eldest child and Mr R is more stable, but does not appear to be one that the child values particularly highly.

   [127] Single expert report, page 27 par 6

6. There is little evidence to permit any finding about the quality of the children’s relationships with the half-siblings in the mother’s home. The youngest child told the Family Consultant in July 2010 that he misses his “little brothers” when not at the mother’s home,[128] but did not engage with them when later observed by the single expert in November 2010. The eldest child described to the single expert the mother’s home as having “too many kids” and that the best time in that home is “when the kids are in bed”.[129]

   [128] Affidavit of Family Consultant, page 6

   [129] Single expert report, page 22 par 2

7. The youngest child has spent some time staying with the maternal grandmother, with whom I infer he has a good relationship.

Sections 60CC(3)(c),(4)

1. The father is willing and able to facilitate and encourage close and continuing relationships between the children and the mother. After the parenting orders were made in November 2006 he ensured the children spent time with the mother despite the considerable distance between their households, even providing the mother with financial assistance to ensure that it occurred.

2. Even after the mother detained the eldest child in April 2010 and was recovered in May 2010, the father honourably ensured that the children returned to visit the mother in July 2010.

3. I am not satisfied the mother has the same commitment to facilitation and encouragement of the relationships between the children and the father. Her retention of the eldest child in April 2010 and both children in July 2010 occurred in circumstances which do her no credit.

4. If, as the mother asserted, her conduct was justified by reason of the eldest child’s fervent wish and her genuine concern about the occurrence of sexual molestation within the father’s household then she ought have commenced proceedings before the Court to explain the predicament and solicit a change to the orders made in November 2006 before taking matters into her own hands. Her self-help remedy was ill-advised. The mother’s unilateral decisions about school enrolment of the children, alteration of Centrelink benefits to accommodate the children, strategic reports to the Department about the children, and refusal to allow the children to return to the father even when assured that the children would not be exposed to Ms C’s children[130] imply disdain for the father’s involvement in the children’s lives.

   [130] Father’s affidavit, par 57

Section 60CC(3)(d)

1. The orders provide for the eldest child to remain living with the mother. It is not likely he will be adversely affected by that outcome. He desires it.

2. The orders require the youngest child to live with the father, which entails his removal from the mother’s household, where he has lived since July 2010. That represents restoration of a long-standing residential arrangement.

3. The single expert believed the youngest child was experiencing grief because of his separation from the father and that his return to the father will afford him relief, realising immediate improvement in his emotional state.

4. The youngest child may initially regret his separation from the mother and his brother, but the emotional boon he will likely experience through being re-united with the father and members of his household will more than compensate for his sense of loss of the mother and his brother.

Section 60CC(3)(e)

1. Following the father’s move to G in January 2010 the parties developed a practice of exchanging the children at B, NSW. The selection of that venue was due to it being approximately equidistant between their respective households.

2. Although the orders of November 2006 made provision for air flights to facilitate the children spending time with the parties,[131] that mode of transport has not been adopted by the parties since December 2009.[132] Even before then, the mother had financial difficulty in meeting the cost of air fares and so the father provided her with financial assistance.[133] The father is dissatisfied with the mother’s commitment to his repayment, in which case it would be pointless making orders for the future use of air flights to facilitate the exchange of the children between them, as is proposed by the father.[134] There is no evidence of material improvement in the mother’s financial circumstances to warrant such an arrangement.

   [131] Orders 7, 9, 10

   [132] Father’s affidavit, par 32

   [133] Father’s affidavit, pars 13-26

   [134] Exhibit F1, Order 8

3. The father was alternatively content to continue changeovers of the children at B,[135] which coincided with the mother’s proposal, at least for school holiday changeovers.[136] According to Ms C’s unchallenged evidence, changeover at that venue means that neither party is required to spend a night away from home when exchanging the children. It follows that changeovers at that venue are reasonably practicable for both parties.

   [135] Exhibit F1, Order 8

   [136] Exhibit M4, Order 4.2

4. Even though the mother is not yet licensed to drive, she expects to hold a licence and to also own a car some time this year. In the meantime, she has the assistance of the maternal grandparents, who have willingly driven her and the children to B in the past.

5. If the parties later wish to consensually arrange changeovers by use of air flights they are of course free to do so.

6. There is no practical difficulty or expense involved in ensuring telephone and internet communication between the children and non-residential parents. The parties each propose or willingly consent to orders of that sort.

Section 60CC(3)(f)

1. I am satisfied that each party, with the assistance of their respective partner, has the capacity to care for the children, and provide for their physical and intellectual needs.

2. The father works full-time.[137] He works extended hours in the period between January and April each year. He conceded that he will be reliant upon Ms C to assist in the care of the youngest child. Ms C also works permanently for four days each week, from Monday to Thursday inclusive.

   [137] Single expert report, page 45 par 3

3. The father and Ms C proposed that Ms C will ready the youngest child and her two children for school and deliver them to school each morning. Each afternoon after school all three children will attend an after-school care organisation, from which they will be collected by the father following his completion of work for the day. The youngest child is still enrolled at that organisation and his placement is not in jeopardy.

4. The father’s place of employment is a short drive from home and he would be able to leave work and attend upon the youngest child in the event of emergency. Ms C also has that capacity.

5. Although it is possible the youngest child will attend the same school as Ms C’s two children, it is not likely. That school is not in the residential area and is only attended by Ms C’s children as a consequence of agreement reached between Ms C and her estranged husband. It is more likely that the youngest child will attend the same school at which he was enrolled while he lived with the father for the first two school terms of 2010.

6. The mother also has the capacity to provide for the physical and intellectual needs of the children. The mother works part-time and Mr R works casually. Between them they share the role of homemaking parents for the children and their own children. They also have the assistance of Mr R’s mother, who lives next door, and the assistance of the maternal grandmother, who lives in M.

7. I am satisfied the father has the capacity to provide for the emotional needs of the children. He ably demonstrated that from 2006 until 2010, during which period he capably discharged the role of primary carer for the children. He is generally sensitive to their needs and promotes their relationships with the mother.

8. The mother also has a capacity to provide for the emotional needs of the children, but her capacity is inferior to that of the father. There are essentially two reasons for that conclusion. Firstly, the mother does not enthusiastically support the relationships of the children with the father, as explained pursuant to s 60CC(3)(c) of the Act. Secondly, she acquiesces to a situation in which the youngest child is emotionally abused by Mr R within her household, for reasons which are later explained.

Section 60CC(3)(g)

1. There was no aspect of the parties’ maturity, sex, lifestyle, or background which featured in submissions as a reason for the orders proposed by the parties or the Independent Children’s Lawyer.

2. The criminal lifestyle and background of Mr R was a central theme in the cross examination of the mother and Mr R, but the significance of that issue was never made plain.

3. Mr R undeniably has a shameful criminal past.[138] He admitted as much in cross examination. However, Mr R served the sentences imposed upon him for his many offences. His record of convictions of itself has no bearing upon his performance as a domestic partner and parent. The single expert’s adverse views about Mr R as a parent were formed without recourse to his criminal record.[139] In her view, his record only served to vindicate the opinions she formed at first instance.

   [138] Exhibit ICL1

   [139] Single expert report, pages 60, 63, 64

4. Apart from the unlawfulness of earning some undeclared casual income, there is no evidence that Mr R now leads a lifestyle that is inimical to his role as a parent.

Section 60CC(3)(h)

1. Neither party identifies themselves or the children as Indigenous Australian.

Sections 60CC(3)(i),(4)

1. Although both parties love the children and wish them to be happy, there are some aspects of the parties’ conduct which demonstrated that they do not always possess an appropriate attitude to the children and the responsibilities of parenthood.

2. Regrettably, neither party holds the other in high regard. They each admitted that to be so in cross examination. In such circumstances it will be difficult for each of them to avoid impressing that attitude upon the children. The children will be well aware of their parents’ dislike for one another, which will cause the children to feel divided in their loyalty and hence anxious at that predicament.

3. The mother acknowledged in cross examination that she put her own interests before those of the children when she decided to depart far north Queensland in late 2006 and leave the children in the care of the father because she desired to live near family and friends in M. The mother perceived the need to break the hold the father had over her.[140] Had she decided to stay in far north Queensland, the children would have spent equal time with her on a weekly rotation pursuant to the orders made in November 2006.

   [140] Single expert report, page 18 par 4

4. Similarly, the father decided to relocate with the children from far north Queensland to G in January 2010 to cohabit with Ms C. Although the father contemplated the repercussions of such a move for the children, he subjugated at least the wish of the eldest child to remain in far north Queensland to his wish to cohabit with Ms C in G. The unsettlement and consequent unhappiness of the eldest child proved to be much more pronounced than he had expected.

5. However, by contrast, the father recently demonstrated an admirable attitude towards the eldest child in relation to that very issue. The father told the eldest child he still loves him even though the child wishes to live with the mother.[141] That was a courageous and selfless concession by the father as, against his better judgment, he signalled his continuing support for the eldest child and relieved him of the heavy burden caused by fear of offending and compromising his relationship with the father by choosing to live with the mother.

   [141] Single expert report, page 26 par 1

6. The mother has not been able to demonstrate the same sense of detachment and selflessness. Following her retention of the eldest child in April 2010 and both children in July 2010 she did not consult the father about the schools in which the children were enrolled. Nor did she inform the father of her intention to claim extra Centrelink payments in respect of the children. Nor did she consult the father about counselling she procured for the children. The mother tenaciously prosecuted the case on the basis of allegations of the children being sexually abused within the father’s household on evidence that has been found deficient, consonant with the opinion of the single expert which has been available to the parties since December 2010.

7. The parties have each demonstrated a lamentable attitude to the financial support of the children. The mother never paid any child support to the father over the years while the children lived primarily with the father, and the father has not paid any child support to the mother since July 2010, when the children began living primarily with her.

Section 60CC(3)(j)

1. Although the mother adduced little or no evidence about it, she reported to the single expert that the father was violent and abusive towards her during their relationship.[142]

   [142] Single expert report, pages 4-5

2. The father flatly denied the mother’s allegations that he was violent towards her in the past, which the father convincingly explained was because he saw his own mother experience domestic violence and would therefore never perpetrate it himself.[143] He was not challenged in cross examination about that.

   [143] Single expert report, page 44 par 3

3. The mother’s allegations of family violence are hardly persuasive in the context of this case. The mother agreed to parenting orders in November 2006, which post-dated her allegations of family violence against the father, under which orders the children lived with the father. The mother would not have agreed to those orders unless she then believed the orders were made in the best interests of the children. Although the mother may now regret her former consent to those orders,[144] I do not accept that she was regretful at the time. She did not demonstrate any regret by her compliance with the orders for some years until April 2010.

   [144] Mother’s affidavit, par 5.2

Section 60CC(3)(k)

1. There are no family violence orders in existence affecting either party or the children.

Section 60CC(3)(l)

1. Making orders that provide for the eldest child to remain living with the mother is least likely to lead to further proceedings concerning that child. If he was compelled to move back with the father against his strongly expressed wish, he would likely rebel in some way which would make further proceedings probable.

2. Making orders that provide for the youngest child to return to live with the father is least likely to lead to further proceedings concerning that child. Such an outcome coincides with the recommendation of the single expert and the proposals of the father and Independent Children’s Lawyer. Although the mother proposed that the child remain living with her, she will realise the weight of evidence was against that outcome. The mother also heard Mr R concede that the return of the youngest child to the father might well be the best outcome for that child.

Section 60CC(3)(m)

1. The mother was against the separation of the children.[145] It was also an outcome to which the father was only reluctantly drawn. However, the single expert ultimately recommended that course for several reasons.

   [145] Single expert report, page 12 par 2

2. Without doubting the children’s attachment to one another, it is clear they have an ambivalent relationship. The eldest child is sometimes contemptuous of the youngest child,[146] and was perfectly content with the idea of them living in separate households.[147] He even suggested the idea to the father.[148]

   [146] Single expert report, page 22 par 2

   [147] Single expert report, pages 24 par 4, 81 par 4

   [148] Single expert report, page 42 par 1

3. There are differences between the children which make their separation a more viable option than might ordinarily be the case. They are of disparate ages, maturity, personality, and temperament.

4. The eldest child is 12 years of age and pubescent. He is gregarious, confident, and extremely worldly for his age.[149] The youngest child is only 6 years of age. He is much more reserved and quiet, and often prefers his own company. Those character traits were even noticeable to both Ms C and Mr R.[150]

   [149] Single expert report, pages 73, 74

   [150] Single expert report, pages 50-51, 58-59, 63

5. The youngest child is primarily attached to the father in the opinion of the single expert, despite having lived with the mother for the past 8 months. The youngest child also has a warm relationship with Ms C and her children, and in particular NC, who is the same age.[151] By comparison, it was clear to the single expert the eldest child placed no store in his relationships with Ms C’s children.[152]

   [151] Single expert report, pages 50, 53, 54, 56

   [152] Single expert report, pages 55-56

6. I accept the single expert’s opinion that the youngest child is treated differently from the eldest child and the other children in the household of the mother. The youngest child was spoken to harshly and was relatively isolated in the maternal family grouping.[153] The mother admitted in cross examination that Mr R does relate to the children in different ways, even though Mr R asserted he treated the child as if he was his own child.

   [153] Single expert report, pages 57, 60, 77

7. The single expert found the child to be withdrawn and unhappy in the mother’s family group. The mother’s counsel also suggested to the father in cross examination that the youngest child was not making friends at the new school at which he was enrolled by the mother. The father candidly said he did not know, but for such a question to be posed it must follow that the mother believes that to be so. The youngest child is therefore not deriving any emotional satisfaction through peer groups at school either.

8. In the opinion of the single expert, the treatment of the youngest child in the mother’s household amounted to emotional abuse,[154] which appeared to be causing the child to be clinically depressed,[155] and which warranted his immediate removal from that household to return to live with the father.[156]

   [154] Single expert report, page 65 par 1

   [155] Single expert report, page 78 par 2

   [156] Single expert report, page 81 par 2

9. Tellingly, in cross examination Mr R said it might be the best thing for the youngest child to return to live with the father. He conceded that he and the father were quite different people, and that the youngest child may feel more comfortable being around the father who is less forthright. Mr R agreed the youngest child loved the father very much.

10. Although the single expert harboured concern about the eldest child remaining resident with the mother because of the adverse affect of Mr R as a role model on his moral development, she remained more concerned about the deleterious consequences for both children if the eldest child returned to live with the father.

11. The single expert endorsed the father’s concern that if the eldest child was forced to return and live with the father against his wishes then their relationship may deteriorate and the eldest child might vent his dissatisfaction with the outcome by acting cruelly towards the youngest child and Ms C’s children,[157] seriously disrupting the dynamics and stability of that household. Because of the eldest child’s unusual personality traits, the single expert considered his reaction to a move which he opposed could be extreme.

    [157] Single expert report, pages 41 par 6, 81 par 5

12. The eldest child is conscious that the father still loves him even though he chooses to live with the mother,[158] which must be an enormous relief for the child, enabling him to express his views with greater freedom.

    [158] Single expert report, page 26 par 1

Parenting orders

1. The presumption of equal shared parental responsibility is rebutted by the evidence which proves such an outcome would not be in the children’s best interests. The conflict between the parties has been, and continues to be, too entrenched to permit calm and rational discussion about the major long-term issues in the children’s lives.

2. The allocation of equal shared parental responsibility under the orders made in November 2006 proved a failure. The father effectively made all of the decisions about the children’s lives after those orders were made when the mother promptly moved inter-state. If the mother was disaffected by that arrangement she took no action to rectify it in accordance with the orders.

3. The parties are still unable to communicate effectively. The mother engaged Mr R to act as a conduit between her and the father as long ago as January 2009,[159] because she “couldn’t deal with it”. That strategy proved a failure. Mr R considers that the father only gives him “counter-productive bullshit” when they speak about the children.[160] As mentioned already, Mr R has been threatening towards the father over the telephone in the recent past and Mr R said he thought it was a pointless exercise to proffer an apology to the father.

   [159] Mother’s affidavit, par 7.5

   [160] Single expert report, page 63 par 2

4. It is not entirely true that the mother later took back control of parental communication with the father, as the mother deposed.[161] The mother admitted in cross examination she had only spoken with the father on a handful of occasions because she perceived they lacked the capacity to compromise with one another. Recent telephone communication has been between the father and Mr R. Largely that is because the mother provided Mr R’s mobile telephone number to the father for his communication with the children on Monday nights when she is at work.

   [161] Mother’s affidavit, par 7.7

5. In July 2010 the Family Consultant found that the “significant lack of communication and conflict” between the parties impeded any prospect of consensus and was “undoubtedly impacting on the children”.[162]

   [162] Affidavit of Family Consultant, page 7

6. When asked directly in cross examination about whether she foresaw any improvement in the nature of their future communication the mother was frankly unable to say.

7. The father said that he would be prepared to undertake an educative course in the hope of improving his communication with the mother. Although the mother was not asked about her willingness to do so, it is appropriate that both parties undertake a post-separation parenting program and supply one another with evidence of their completion of such program. Although it may not improve their level of communication, nothing will be lost by attempting improvement.

8. Presently, it is not feasible to allocate equal shared parental responsibility to the parties. The allocation of parental responsibility is intrinsically linked to the determination of the parent with whom the children should live.

9. Because equal shared parental responsibility is not allocated to the parents the Court is not obliged by the Act to consider the residential alternatives of the children living for equal time with each parent or spending substantial and significant time with the non-residential parent. Both of those outcomes are simply impracticable. The parties live too far apart.

10. The decision becomes one of determining with which parent the children should primarily live, either individually or together.

11. For reasons already explained, the weight of evidence dictates that the eldest child should live with the mother and the youngest child should live with the father.

12. The most influential factors in the decision about the eldest child’s residence are his strong wish and the real risk of the child sabotaging the happiness of the youngest child and the father’s household if he is forced to return there.

13. The most influential factors in the decision about the youngest child’s residence are his primary attachment to the father, his lack of emotional succour in the mother’s household, and the absence of any appreciable risk of his abuse in the father’s household.

14. Given that the children will live in different households from one another it is important to ensure they spend as much time together as possible and experience the benefit of frequent communication with one another. The distance between the households necessarily means that it is only practicable for the children to spend time with one another and the non-residential parent in school holiday periods.

15. The parties and Independent Children’s Lawyer all agreed the children should spend the whole of school holiday periods together, and that such time should be divided equally between the households of the parties.

16. The time spent by the children with the father in school holiday periods is co-ordinated so it falls in the same half of the holidays as Ms C’s children spend in their household. The parenting orders affecting Ms C’s children are in evidence.[163] That arrangement was the desire of the father, and was supported by the Independent Children’s Lawyer.

    [163] Exhibit F6

17. The mother is bound by the orders to ensure that the youngest child is not left in the unsupervised care of Mr R when the youngest child spends time with her, because of the single expert’s unshaken evidence that Mr R treats the child in an emotionally abusive way. The Independent Children’s Lawyer proposed such an order,[164] and the single expert asserted in cross examination that such an order was “very appropriate”.

    [164] Exhibit ICL2, Order 10

18. The parties each acknowledged the children would miss one another living apart. The children have a bond with one another even if their relationship is not characterised by intimacy. To ameliorate their sense of loss orders are made for them to communicate with one another frequently by telephone and internet during school terms. I agree with the mother that telephone calls twice per week is an appropriate frequency, and that Tuesday and Thursday evenings are appropriate times.[165]

    [165] Exhibit M4

19. Both parties said they had the present or prospective ability to subscribe to the “Skype” computer program and install webcams on their home computers so the children can converse visually over the internet. The parties agreed to a similar order in November 2006 permitting communication in that form.[166]

    [166] Order 15 made on 8 November 2006

20. The orders providing for telephone communication are quite specific so as to avoid the difficulties confronted in the past. The children need to be given privacy in each household when they are communicating with the parent in the other household.

21. An order is made requiring the mother to continue the eldest child’s counselling with the Children and Adolescent Mental Health Service, consistently with the single expert’s recommendation. The eldest child is troubled and unhappy, which problems may compound during adolescence. As recommended, the mother is obliged to furnish a copy of the single expert’s affidavit to the eldest child’s treating clinician.[167]

    [167] Single expert report, page 82 par 1

22. Specific provision is made for the provision of the orders, these reasons, and the affidavit of the single expert to authorities in the event of further reports of abuse being made in respect of either child. The investigating authorities should be aware of the background should that eventuate.

23. Provision is also made for the Independent Children’s Lawyer to explain the implications of the orders to the children, for which purpose the Independent Children’s Lawyer may seek to enlist the assistance of the Family Consultant. The Independent Children’s Lawyer proposed such an order,[168] which I adopt as a sensible measure.

    [168] Exhibit ICL2, Order 16

24. The remaining orders either replicate orders the parties agreed to in November 2006, consented to in these proceedings, or cannot be the subject of rational dispute.

25. For those reasons, the orders set out at the commencement of this judgment meet the best interests of the children.

I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 9 March 2011

Associate: 

Date:  9 March 2011