Carter and Greenhill

[2017] FamCA 1047

FAMILY COURT OF AUSTRALIA

CARTER & GREENHILL [2017] FamCA 1047

FAMILY LAW – CHILDREN – Relocation – Father seeks children live with him in F Town and spend alternate weekend time with mother as per current interim orders – Mother seeks children live with her in M Town and spend every third weekend with father – Where mother alleges father is an unacceptable risk of harm to the children – Where family violence and drug use by the father is cause for the risk – Where father and paternal family are unlikely to facilitate a meaningful relationship between children and the mother – Where mother likely to facilitate meaningful relationship between children and the father – Where relocation would provide more opportunity for children – Where relocation would ensure that children remain living together - Where children to move into mother’s primary care in M Town and spend every third weekend and school holiday time with father - Mother to have sole parental responsibility.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge [2010] FamCA 445
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343

APPLICANT: Mr Carter

RESPONDENT: Ms Greenhill

INDEPENDENT CHILDREN’S LAWYER: Ms Norris

FILE NUMBER: SYC 8235 of 2015

DATE DELIVERED: 14 December 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Parramatta

JUDGMENT OF: Tree J

HEARING DATE: 9, 10, 11, 12 and 13 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hodgson

SOLICITORS FOR THE APPLICANT: Brendon Dunston Solicitor

COUNSEL FOR THE RESPONDENT: Ms Gillies SC

SOLICITORS FOR THE RESPONDENT: Blackwell Dr I Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lawrence

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central

Orders

1. That all prior parenting Orders are discharged.

PARENTAL RESPONSIBILITY:

1. That the Mother have sole parental responsibility for the children namely B born … 2005, C born … 2006 and D born … 2012 (“the children”).

2. That notwithstanding Order two (2) hereof:

   3.1The Mother is to notify the Father of her intention to make any major decision in relation to the child/ren with such notification to be provided to the Father in writing; and

   3.2The Mother is to notify the Father in the event of a serious illness, or hospitalisation or emergency in relation to the child/ren; and

   3.3That nothing in these Orders precludes the Father from obtaining information pertaining to the children’s schooling, religion, health and/or welfare.

LIVE WITH:

1. That commencing 4:00pm on 6 January 2018, the children live with the Mother unless otherwise specified in these Orders, but until then, they are to live with the father.

2. When the children are not in the Mother’s care pursuant to these Orders the children be permitted to have liberal telephone communication with the Mother as agreed between the parties and failing agreement each alternate day between 6.30pm to 7.30pm with the Mother to instigate such telephone communication in the first instance and the Father do all acts and things necessary to ensure that such telephone communication occur and provide the child/ren with privacy.

3. That in the event that the Mother intends to relocate the children’s permanent residence more than 50kms from M Town, New South Wales the Mother provide notification to the Father in writing at least 60 days prior to such relocation.

SPEND TIME WITH / COMMUNICATE WITH:

1. That the children spend time with the Father as agreed between the parties and failing agreement:-

   7.1Commencing Term 1, 2018 and during each school term thereafter every third weekend from Friday afternoon at the time from which the parties reach the changeover location pursuant to these Orders but not later than 4.00pm until 4.00pm Sunday with such time commencing on the third weekend after the resumption of each school term provided that the children’s time with the Father be suspended on the Mother’s Day weekend;

   7.2For ten (10) nights of the Term 1 and 3 school holiday periods from 12noon on the first Saturday of such holiday periods to 12noon on the eleventh day of such periods;

   7.3For four (4) nights of the term 2 school holiday period, from 12noon on the first Saturday of such holiday periods to 12noon on the fourth day of such periods.

   7.4For one half of the Term 4 school holiday period from 12noon on the first Saturday of such holiday period to 12noon on the midpoint Saturday of such holiday period in odd numbered years and from 12noon on the midpoint Saturday of such holiday period until 12noon five (5) days prior to the commencement of school commencing in 2018 and each even numbered years.

2. That the children be permitted to have liberal telephone communicate with the Father as agreed between the parties and failing agreement each alternate day between 6.30pm to 7.30pm with the Father to instigate such telephone communication in the first instance and the Mother do all acts and things necessary to ensure that such telephone communication occur and provide the child/ren with privacy. This Order is suspended for a period of twenty one (21) days from the date of these Orders.

3. That in the event that the Father is in M Town and/or within 100km of M Town, New South Wales during the School Term then provided the Father provides ten (10) days’ notice to the Mother in writing by SMS message then the children shall spend time with the Father as agreed but failing agreement:-

   9.1On no more than two (2) weekends per each School Term from afterschool Friday until 4.00pm Sunday with the Father to collect the child/ren from school and/or the bus stop where the child/ren are delivered in M Town upon returning from school in P Town and the Father is to return the children to the Mother’s care at McDonalds at M Town NSW.

   9.2At such other times as agreed.

SPECIAL OCCASSIONS:

1. If Father’s Day falls outside the Father’s time with the children in accordance with these Orders, then the children are to spend time with the Father on Father’s Day weekend from after school/day care on Friday immediately prior to Father’s Day until 4:30pm on Father’s Day.

2. If Mother’s Day falls outside the Mother’s time with the children in accordance with these Orders, then the children are to spend time with the Mother on Mother’s Day weekend from after school/day care on Friday prior to Mother’s Day until 4:30pm on Mother’s Day.

CHILDREN’S SCHOOLING:

1. That the Mother ensures that the contact details for the Father and the Paternal Grandmother are included on each of the children’s enrolment forms and that once the Mother has enrolled the children in school the Mother shall provide confirmation to the Father in writing.

2. That the Mother do all things necessary to authorise and direct the principal of the children’s school to provide the Father as he may request information in relation to the children’s progress and involvement in school activities and copies of all school reports, newsletters and other notices.

3. That the Mother and Father be at liberty to attend any event at the child/ren’s school that parents are ordinarily invited to intend including but not limited to parent/teacher interviews, school assemblies, concerts, any cultural events, sporting events, education, religious education, health and/or other occasions significant to the welfare of the child/ren where the attendance of either and/or both parent is to be reasonably expected.

COMMUNICATION BOOK:

1. That the Mother and the Father do all things necessary to keep the other informed about the children’s health, education and development including any scheduled appointments with medical practitioners through the use of a Communication Book to be exchanged between the Mother and Father each time the children move from the care of one to the other as well as at other times should there be a need for communication about such matters with such Communication Book to be initially purchased by the Mother and replaced by the Mother at a time when the then existing Communication Book is filled.

2. That the Mother and Father be restrained from writing anything in the Communication Book that is not related to the children and be further restrained from using offensive, discourteous or derogatory language in the book or from otherwise using the book to record personal comments or criticisms about each other or as a means to threaten or intimidate each other.

3. That in addition to the Communication Book the Mother and the Father communicate with each other in relation to any matters in respect of the child/ren by SMS message and/or by telephone communication.

CHANGEOVERS:

1. In order to facilitate the children spending time with the Father unless otherwise specified then changeovers shall occur as agreed between the parties and failing agreement changeovers shall occur with the Mother and/or her Agent delivering the children to the Father and/or his Agent at Caltex Service Station at G Town at the commencement of time and the Father and/or his Agent shall return the children to the Mother and/or her Agent at Coles Supermarket at H Town at the conclusion of time.

FATHER UNDERTAKING HAIR FOLLICLE TESTING:

1. For a period of twelve (12) months from the date of these Orders the Father shall:

   23.1On one occasion in each three (3) calendar months submit himself for hair follicle testing and provide such hair and hair follicle samples as directed by Occupational Toxicology Services Pty Ltd for the purposes of analysis of drug use in relation to Methadone Metabolite, Opiates, Amphetamine type substances, Benzodiazepines, Cannabinoids, Cocaine Metabolite, Barbiturates, and Buprenorphine (or any one of these drugs);

   23.2The Father be restrained from taking any steps to interfere with the provision of hair and follicle samples or to interfere with the test results;

   23.3The Father shall ensure that he has hair of sufficient length to be in a position to provide a sample for the hair follicle testing to be undertaken in accordance with these Orders;

   23.4The Father direct and authorise Occupational Toxicology Services to send the Mother copies of all test results forthwith upon those results becoming available and in any event the Father shall send to the Mother a copy of all test results within 24 hours of receipt of same; and

   23.5The Father meet the costs of such hair follicle testing.

FATHER UNDERTAKING URINALYSIS:

1. For a period of twelve (12) months from the date of these Orders the Father shall:

   24.1By no later than the 10^th day in each calendar month undertake (by provision of chain of custody urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening;

   24.2Provide copies of the results of the tests to the Mother within 48 hours of receipt of sample; and

   24.3The Father meet the costs of such urinalysis.

EXPLANATION OF FINAL ORDERS TO THE CHILDREN:

1. That the Mother shall explain the Final Orders to the children.

INJUNCTIONS / RESTRAINTS:

1. That the Father be restrained from using and/or being affected by any illegal substances.

2. That the Mother and Father be restrained from denigrating the other or any member of the children’s extended family in the presence and/or hearing of the childr/en and shall use their best endeavours not to allow any other person to do so.

UNDERTAKING BY PATERNAL GRANDMOTHER:

1. The Father’s time pursuant to these Order shall not commence until an Undertaking has been sworn, filed and served by Ms R Carter in the following terms:

   31.1That the Paternal Grandmother shall immediately notify NSW Police and the Mother in the event that she observes or suspects that the Father to have consumed or be under the influence of illicit substances with such notification to the Mother to be by SMS message, email and/or telephone; and

   31.2That the Paternal Grandmother be restrained from denigrating the Mother or any member of the children’s extended family in the presence and/or hearing of the child/ren and shall use her best endeavours not to allow any other person to do so.

ADDITIONAL PARENTING ORDERS:

1. That the Mother be permitted to provide a copy of the Final Orders and the Reasons for Judgment to the children’s respective schools and/or counsellor.

2. That the Father be permitted to provide a copy of the Final Orders and the Reasons for Judgment to Dr I.

3. That the Mother and the Father be at liberty to attend on such other occasions and at such other events which are significant to the children’s welfare, being occasions relating to education, religious education, health, sporting activities, extracurricular activities where the attendance of either or both parents is to be reasonably expected.

4. That the Mother and the Father keep the other informed of their current address and contact mobile / landline telephone numbers at all times.

5. That in the event of the child/ren or any of them being hospitalised or receiving medical attention the parent with whom the child/ren or child are with shall notify the other parent as soon as practicable after first contact with a medical practitioner, medical centre or hospital.

6. That the Mother shall keep the Father informed at all times in relation to the name, address and contact number of any medical and health professionals involved in the care of the child/ren and authorise such professionals to provide to the other all information reasonably requested in relation to the child/ren.

7. The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

8. Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC8235/2015

Mr Carter

Applicant

And

Ms Greenhill

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings relate to the parenting arrangements for the parties’ three children, being B (born in 2005, and hence presently 12 years of age), C  (born in 2006, and hence presently 10 years of age) and D (born in 2012, and hence presently four years of age) (“the children”).  Mr Carter (“the father”) seeks orders which, in effect, would make the present interim arrangements, which see the children primarily live with him in F Town, but spend alternate weekend time and school holiday periods with Ms Greenhill (“the mother”), into final orders.  For her part, the mother seeks orders that the children move into her primary care in M Town, and spend every third weekend with the father, together with one half of all school holidays.  She justifies those orders on the basis that the father presents an otherwise unacceptable risk of harm to the children, arising from family violence, drug use and his seeking to restrict the children’s relationship with her.  The Independent Children's Lawyer supports the children moving into the mother’s care, but relies upon different grounds for doing so, namely that the mother is the parent best likely to facilitate a relationship between the children and the other parent.  That said, the Independent Children's Lawyer conceded that the case was a very finely balanced one, with which observation I agree.

THE FACTS

The father

1. The father was born in 1980, and hence is presently 36 years of age.  He was raised in F Town, and attended primary school there.  He then went to S School, a boarding school in Q Town.  In the latter stage of his schooling, his parents purchased the paternal great grandfather’s farm, called Property K, which is about 100km from F Town, and moved to live on it. The paternal grandfather had, it seems, always worked on his father’s property, and it was expected that he would, in due course, take it over, as he did.

2. Property K is a rural grazing property of about 45,000 acres.  It is likely that, although initially it was exclusively a grazing property, during the course of the paternal grandfather’s development of it, it also became suitable for growing irrigated crops, and a feedlot was established on it.

3. After finishing boarding school, the father himself returned to F Town, and commenced work at Property K.  It was whilst he was working there, and aged 22, that the father met the mother, and commenced a relationship with her.

The mother

1. The mother was born in 1984, and hence is presently 33 years of age.  Although she spent her early childhood in F Town, she and her family moved from there to L Town when she was in primary school.  She completed her schooling there, and obtained employment in administration with a local firm.  It was whilst in that employment that, aged 19, she met the father.

The relationship

1. After the parties’ relationship had continued for about 12 months, the mother moved to F Town.  In June 2004 she obtained employment there in administration, and in July of that year, the parties commenced cohabitation in F Town.

2. B was born on 21 February 2005, after which the mother took three months of unpaid leave to care for him.  The father continued to work on Property K.

3. The mother returned to work, initially for two days per weeks, but then from December 2005, full-time.

4. On 1 August 2006 the parties purchased the former matrimonial home at E Street  F Town.  Then on 13 December 2006 C was born, after which the mother took 32 weeks of maternity leave.  The father again continued in full-time employment on Property K, save that by then it appears as though there had also commenced an aspect of the Property K operation which saw the father regularly driving trucks carting cattle to and from Property K, from distant locations.  As a result of that, the father commenced to take amphetamines to help keep him awake on the long journeys.  I say that it was likely at about this time that the father commenced taking those drugs because, in October 2012, he told Dr I, a psychiatrist who examined him, that he had been using amphetamines “for the past five years.”

5. In about 2010, the mother had an extra-marital affair, and later confessed this to the father who, it transpired, admitted to also having had an affair.  This appeared to rekindle the parties’ relationship, and in 2011, they married.  In evidence before me were photographs from the wedding, which show both C and B (then aged four and six respectively) very excited and happy at their parents’ marriage.

6. The mother says that after the marriage, she first began to observe changes in the father’s behaviour.  He became increasingly paranoid, including expressing a belief that there were people outside their house, checking the roof of their house for cameras, and expressing fears that the mother was being unfaithful to him.

7. This culminated with the father being admitted to hospital on 17 September 2012.  Events which led to that hospitalisation are concerning.  On the evening before, the father had been continuing to harass the mother in relation to her alleged infidelity, and the parties argued.  Also present at the parties’ home were the mother’s sister, her partner and their young child.  The father then left the house, and did not return that night.  In the morning, the mother prepared the children for school and day care, and left with them.  At about 10:00am the father returned home, obviously very unwell.  He looked pale and tired.  He identified that he himself realised he was sick.  He was of the belief that there was someone “after him.”

1. The maternal grandmother, who was at the home, telephoned the mother, and advised that the father needed to be hospitalised. That process commenced, although the father refused to go to the F Town hospital, because he was embarrassed about his condition, and the fact that, being such a small community, meant that the news about him would rapidly spread by gossip. So it was resolved to take him to L Town Hospital, but the mother was sufficiently concerned about the father’s condition that in fact the father travelled in the maternal grandmother’s car, and the mother travelled in a second vehicle.  On the way to L Town, the father started dismantling his phone, believing that there was a “bug” in it.  At one stage, having taken the battery out of the phone, he proclaimed that he had found the “bug”, and then opened the window and threw the phone and battery out of the car.  He then began to fossick around the dashboard looking for wires that he could pull out, in order to stop cameras, which he believed were there, from filming him.

2. Understandably the maternal grandmother became concerned that the father was so unwell that they would not be able to get to L Town.  It was then decided to take the father to the nearest hospital, which was in G Town.  The father was very opposed to this, but nonetheless he was admitted there.  From there, he was later transferred to L Town.  Whilst in hospital, he admitted that he had been using amphetamines to assist him with driving, although he inconsistently reported that he had been doing so for two years or five years.  He is also recorded as having told relevant staff that he would not use them again; they expressed some uncertainty about that, given his history of using them over such a period of time.

3. At all events, the father was discharged from hospital after five days, and returned to work at Property K.

4. In 2012 D was born.

5. Unfortunately the parties’ relationship thereafter progressively deteriorated.  The father continued to be obsessed with the mother’s alleged infidelity, and would take to looking through her mobile phone trying to find evidence from which he could accuse her.  Ultimately on 1 May 2014 the parties finally separated.  Although initially the mother and the children went to live with her sister, shortly thereafter, the father moved out of the former matrimonial home and the mother and children returned.  The parties have not cohabited since.

Post-separation

1. After separation, the mother continued in full-time employment in F Town, and the father remained working on Property K.  Initially the relations between the mother and paternal grandmother remained cordial, and the paternal grandmother would, from time to time, assist the mother with the care of the children, as would other paternal family members.

2. After separation, the father began to regularly telephone the mother.  In her evidence, she said he would call her up to 30 times a day, perhaps as early as 3:00am or 4:00am in the morning.  He remained obsessed with her alleged infidelity, and wanted her to admit to it.  Further, there was an occasion when, whilst the mother was away from the home, the father apparently obtained entry to it, and accessed the family’s wedding album and the mother’s wedding dress.  The wedding album was subsequently located on the front driveway with a tyre mark across one of the pages.  The wedding dress was located on the ground nearby.  It seems likely that the father was responsible for that.

3. On another occasion, the father obtained entry to the mother’s home, and smashed her television and computer screen.  He later bought her new items to replace them.

4. On 12 September 2014 the mother first reported the father’s harassing of her to New South Wales Police.  She had resisted doing so prior to then.  Police subsequently applied for, and obtained, a temporary apprehended violence order against the father.

5. On 6 November 2014 the father was admitted to hospital after a stick penetrated his leg.  The facts surrounding that incident are not clear.  In evidence before me the father said he was only admitted to hospital three days after the stick had penetrated his leg, and after he had sourced some amphetamine to assist with pain relief.  On the other hand the New South Wales health records in evidence before me, note that “patient admits he took amphetamine at the time of incident.”  Further, those notes say that the father was admitted on 6 November 2014 (a Thursday) but the stick had penetrated his leg on Monday night.  That is consistent with the father’s version of waiting three days and ingesting amphetamine as an analgesic, although Dr I, in his oral evidence, said that amphetamine in not an analgesic.

6. Ultimately nothing really turns upon whether the father was under the influence of amphetamine at the time of the episode, or took it subsequently for pain relief or both; the simple fact is that the father admits to then taking speed.

7. On 20 November 2014 the parties agreed to a parenting plan.  It provided for equal shared parental responsibility in relation to joint decision making for the children, who would live with the mother, but spend two out of three weekends with the father, together with the majority of school holidays.

8. On 4 January 2015 the father attended the mother’s home by prior agreement, but then used the opportunity to start questioning the mother again about her personal life.  This was in breach of the apprehended violence order, and the father was in due course charged and convicted for that breach, and received a six month bond in consequence.  However, unfortunately, that did not stop him from continuing to telephone the mother on occasion, and leaving text messages for her.

9. On 6 April 2015 the father again attended the mother’s home, for the purposes of retrieving the children for school holidays.  An argument ensued and the father refused to leave.  The mother then contacted the police, but by the time they had arrived, the father had left.  Later the police intercepted the father with the children in his car, and the father told the police that the mother was “mentally unstable and unfit to care for his children.”

10. On 23 April 2015, a final apprehended violence order was made against the father, for a period of 12 months.  However again, the father continued to contact the mother, contrary to the order.  For instance, on 16 May 2015 he called the mother four times, left two voice messages and sent seven text messages; the following day he phoned the mother on eight occasions, left six voice messages and sent 20 text messages.

11. The next day (the 18^th) he called the mother 19 times and left eight voice messages and sent five text messages.  The next day he called the mother seven times and left four voice messages.  The following day he made six telephone calls, left eight voice messages and sent 18 text messages.

12. Amongst the matters which the father was trying to communicate with the mother about, was his concern that he had possession of a photograph of a woman, who he believed was the mother, with a man, with both of them apparently at least semi-nude.  He was plainly somewhat obsessed with this, and wanted her to confess that it was her in the photograph (which the mother denies).  At all events, that led to him, on 20 May, when attending the mother’s house to collect the children, saying to her “you are a fucking bitch I know that was you in the photo.”

13. All of this led to the father being charged with five breaches of the apprehended violence order, and with one offence of intimidation.  Subsequently the father was arrested and bailed.  He later pleaded guilty to those offences.

14. In about June 2015, the mother became aware that a job similar to that which she occupied in F Town, was becoming vacant in M Town.  She discussed that, and the prospect of moving to M Town, with the paternal grandmother.  She again raised the subject in September of that year, including having a discussion with the paternal grandmother (with whom she was then still on good terms) about where the children might go to school in M Town.  She says that she asked the paternal grandmother to pass that information on to the father.

15. The following month the mother made a formal application for the job and was interviewed, but told the paternal grandmother that she did not believe that she had performed well in the interview.  As it transpired, in fact the position was offered to her.  However prior to her accepting it, on 24 November 2015 the father’s solicitors advised that the father did not consent to the children relocating to M Town.  Nonetheless on 7 December 2015 the mother accepted the position in M Town, and resigned from her position in F Town.  Plainly, when she did so, she was on notice that the father would not consent to the children relocating.  She says that she had instructed her solicitors to commence proceedings seeking permission to relocate, but in fact the father commenced these proceedings first.  However, as it transpired, no early court date in the Family Court could be obtained, and so the father proceeded to seek interim parenting orders in the Local Court at L Town, which orders were made in January 2016.  Those orders did not permit relocation of the children to M Town.  The mother’s subsequent appeal from the Local Court decision was dismissed.

16. In fact seemingly in December 2015, the mother left for M Town without the children, and has remained living there since.

17. Under the interim orders ultimately made in the Family Court, the parties had equal shared parental responsibility for the children, who lived with the father, but spent alternate weekends with the mother, together with one half of school holidays.  This required the parties and the children to undertake extensive travel between F Town and M Town.  The mother obtained assistance with that from the maternal grandmother who lives in L Town, which is en route between the two towns, and changeovers were effected at H Town and G Town.

18. Under those interim orders, the father was obliged to submit to random drug tests from time to time.  On 26 May 2016, the father first tested positive for amphetamine and methamphetamine in a hair follicle test required of him under those orders.  Then on 28 June 2016, the father again tested positive to codeine, amphetamine and methamphetamine; importantly the report noted that, in relation to methamphetamine, “this concentration is indicative of more than a single use of this drug in the three months covered by the testing period.”

19. Although initially the father claimed only to have used amphetamines once in 2016, during the course of his oral evidence he conceded a second occasion.  He nonetheless denied any use of methamphetamine, seemingly holding the view that it was a more dangerous drug than amphetamine.  How therefore the father tested positive to methamphetamine is, on his evidence, unclear.

20. As time wore on, unfortunately the communication between the paternal grandmother and the mother worsened.  Sadly, that led to the communication between the respective grandmothers also deteriorating, and ultimately ceasing.  From about mid to late 2016, it appears as though there have been no words exchanged between the adults at changeovers in any location.

21. Also it appears clear that the boys became progressively resistant to spending time with the mother, and began to voice a disinclination to do so.

22. During this period, as I shall discuss in detail later, the father and paternal grandmother failed to convey to the mother significant information relating to the children’s medical issues, educational issues, and extra-curricular activities.  The mother began to feel that she was being marginalised and excluded from the children’s lives, by being deprived of this information.

23. On 20 July 2017, the father underwent a further hair follicle test, which detected Phentermine was present.  It is not in dispute that Phentermine, also known as Duromine, has an effect similar to amphetamine, albeit it is a legal prescription drug used for weight loss.  The father says that his general medical practitioner prescribed it for weight loss, and that indeed, whilst taking it, he lost about 10kg in weight.  He denied that he knew that it was akin to amphetamine, or that it is commonly known as “legal speed.”  A further urinalysis on 11 August 2017 again showed Phentermine in the father’s body.  That said, in fact the request was made of the father on 8 August, and therefore the fact that the specimen was taken on 11 August meant that it was outside of the 48 hour court ordered time frame.

24. On 15 August 2017 police executed a warrant at Property K.  They seized a number of items, including sheep ear tags and vendor declaration books, which are designed to record the sale and movement of livestock.  They also located and seized a bulldozer, and a number of unregistered firearms.  Subsequent investigations led to both the father and paternal grandfather being arrested and charged.  The father was charged with stealing livestock, and with threatening to cause injury or harm so as to prevent information being provided to police, and further, with the use of a carriage service to menace, harass or offend.  The paternal grandfather was charged with stealing livestock, stealing a bulldozer, and possessing unregistered firearms.

25. The value of the livestock that are said to have been stolen is in excess of $78,000.00.

26. The other two charges against the father arise from the fact that, unbeknownst to the father, at about this time, police had a telephone intercept on his phone.  The two charges relate to his sending messages to a person who proved to be a police witness against him in relation to the sheep stealing charge.  The first was a text message, that simply comprised the image of a fist.  The father says he only sent that message in an effort to try and find out who had caused police to become involved and investigate offences against him.  He denies that he knew the person whom he sent it to was in fact involved.  The second relates to the father sending a winking face to the same person, immediately after police had rung him, asking him to come into the F Town Police Station.

27. According to the police Statement of Facts which is in evidence before me, the person who received both of these messages felt threatened and intimidated when they received them.

28. After being charged, initially the father and paternal grandfather were refused bail, but it was granted the next day. 

29. On 29 August 2017 the father again submitted to urinalysis testing.  That report suggested that the urine sample was dilute, and its chemical analysis was “not consistent with human urine.”  The father denies that he substituted any other type of urine for his.

Current situation

1. As at the time of trial, the mother remained living in M Town in a three bedroom home, and continued in employment with New South Wales Police in M Town.

2. For his part, the father remained operating a livestock enterprise on Property K, together with a contract carting business, using a truck he acquired post-separation. 

3. There is some dispute as to where the father in fact resides.  Although both the father and paternal grandmother say that the children spend most school nights at the former matrimonial home in E Street in F Town, the mother does not accept that, and says that in fact, the children spend most nights at Property K.  The importance of that is that commuting between Property K and F Town adds another two hours to the children’s school day.  Particularly, the mother points out that on the occasion that the police executed the warrant at Property K – a Wednesday – the children had spent the Tuesday night there.

4. Whatever be the case, it is plain that the paternal grandmother is responsible for a significant component of the children’s day-to-day care, and likely considerably more than that undertaken by the father.  For instance, it does not appear as though the father ever stays with the children alone, but rather the paternal grandmother is also always present.  That is to say that she always overnights with the children when they are staying at E Street.

5. In 2017, B repeated grade 6.  C is in Grade 5.  It appears to be a joint class.  Although neither boy is achieving particularly well at school, their teachers gave evidence, in the form of a report, that the boys’ effort has improved.

6. It is not in dispute that the boys are resistant to spending time with the mother, and according to their teachers, demonstrate anxiety on the Thursdays and Fridays before they are due to go into her care.  The boys have regularly said that they do not enjoy going to the mother’s home, and do not like M Town generally.

7. The boys are engaged in a number of activities which they enjoy, principally motorbikes and football.  D has recently taken to dancing, which she apparently greatly loves.

8. B will move to high school next year; the school he is to attend is a matter of significant dispute between the parties.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

1. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

2. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.

3. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings, albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[1]

   “(1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the Dr I, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?”

   [1] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

   [2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

Relocation

1. The application of the above provisions in the context of relocation cases has been discussed by many authorities.  In the decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paragraphs 79 to 81, where her Honour said as follows:

   79. “In considering whether the child should live with the parent who proposes to relocate a court:

   ·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   ·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   ·Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   ·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   ·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   ·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   ·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.   Depending on factors such as  the age of the child, the wishes of the child, the relationship between the child and a parent,  the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   -    that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   -    that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   -    that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   -    the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   ·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. 

   80. It follows from my exposition of the legislation, that earlier core principles:

   -    that the child’s best interests remain the paramount but not sole consideration;

   -    that a parent wishing to move does not need to demonstrate “compelling” reasons;

   -    that a judicial officer must consider all proposals, and may himself or herself  be required to formulate proposals in the child’s best interests; and

   -    the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

   81. What the legislation now requires is:

   - consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   -     if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility  applies the consequences of an order for equal shared parental responsibility.

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”

THE ISSUES

1. During the course of the trial, with the assistance of the parties I identified that the following are the issues in the litigation, in that their determination is likely to substantially inform its outcome:

   1.What is the nature of the relationship between each parent and child.

   2.What risk, if any, does each parent or their household pose to the children, and what means are available to mitigate such risk.

   3.Does each parent have the capacity to provide for the children’s developmental, educational and emotional needs.

   4.Would the children benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.

   5.Would each parent facilitate a meaningful relationship between the children and other parent.

   6.What would be the likely effect on the children of each party’s proposal.  

2. Once I have discussed relevant legal principles but in advance of a traverse of any residually relevant s 60CC consideration, I shall discuss those issues and then determine the appropriate parenting orders in this case.

CREDIBILITY

1. There are several conflicts between the parties’ evidence in relation to some significant matters.  It is therefore appropriate that I commence by making some general observations in relation to credibility.

2. Turning firstly to the mother, I am satisfied that, generally, her evidence was honestly given, and reliable.  Particularly I was impressed by her willingness to readily make concessions, or give evidence, which was contrary to her case.  Most noticeable in this respect was her concession that the boys have both told her they did not wish to relocate to M Town, and have a particular desire to remain at F Town, and in the case of B, go to S School rather than the school which the mother prefers.  I think that her ready concession of these matters – which do not help her case – speaks volumes as to her credibility, generally.

3. The next important witness whose credibility is in issue is the paternal grandmother.  Although less willingly, she too was prepared, on occasion, to make concessions which were contrary to her son’s case.  For instance, she was prepared to concede that her conduct (and indeed his) in withholding information from the mother was appalling, and later made a concession that she and the father had discussed their evidence, and she had prompted the father in relation to detail which he had forgotten.  Again these things point generally to her credibility, albeit I do accept that they had to be extracted from her during the course of a robust cross-examination.  That said, I am generally satisfied that the paternal grandmother’s evidence is reliable.

4. Turning then to the father, I regret that I cannot make a similar conclusion in relation to his evidence.  Firstly he himself conceded that at times much of his memory was blurry.  However, and particularly, I am not satisfied that he was being honest when giving evidence in relation to his drug use, but was intent on deliberately minimising it and its impact upon him.  I have little doubt that he realises that his drug use is a large and looming issue in this case, and was aware that admissions of drug use would negatively impact upon his prospects.

5. Whilst it is not the case that I would require the father’s evidence to be independently corroborated before I would act upon it, I nonetheless will view it with great suspicion, particularly in relation to areas of importance in the case.

NATURE OF RELATIONSHIP BETWEEN EACH PARENT AND CHILD

1. The Family Report writer, Mr W, concluded that the children have good relationships with both of their parents.  Although he was troubled that underneath the surface, the relationship with the father may be problematic if he was seeking to in fact minimise the mother’s relationship with the children, nonetheless he concluded, based upon his assessments over 12 months ago, that the children could successfully live with either parent.

2. However it appears as though the children derive different things from each parent.  Particularly in relation to the two boys, the father’s relationship seems to be more activity driven.  For instance, B was asked by Mr W about the things he enjoys doing with his father, to which he replied that there were “lots,” and explained that his father “teaches me to do farm things, teaches me how to drive [a truck, car, tractor, motor bike boat].”  Likewise C said that the things he likes doing with his dad included “going mustering, riding the bikes.”

3. In contradistinction, neither of the boys were able to identify any activity they particularly enjoyed doing with their mother.  B said that “there was nothing much” he enjoys doing with his mother, although she “takes us to good places, but she doesn’t do nothing with us.”  He went on to say that “she plays on [her] phone, that’s all she does.”

4. To like effect, C said that the mother “doesn’t usually play with us.”

5. This evidence was confirmed by the paternal grandmother, who said that when they come back from spending time with the mother the boys often complain that it was “boring” and if asked what they did, they respond “not much” or like words.

6. It may be that the relationship between the mother and D is in a different category.  Particularly, D is reported to become clingy and teary when separating from her mother, as indeed she did at the Family Report interviews in 2016.  It seems likely that spending time with the mother is of greater value to D, than the boys perceive their time with the mother to be to them.

7. Nonetheless I am satisfied that both parents have good relationships with the children.

RISK EACH PARENT POSES TO THE CHILDREN

Overview

1. It was not suggested that the mother posed any risk of harm to the children.  Certainly the father’s case was not constructed around risk as justifying the orders which he seeks.

2. On the other hand it was contended that the father poses three species of risk to the children, firstly arising out of his history of family violence, secondly arising out of his history of drug use, and thirdly arising from what was said to be his sidelining of the mother in the children’s lives.  Of course some of those overlap and, in any event, it is necessary to ultimately consider risk cumulatively.

Family violence

1. The mother says that the early stages of the parties’ relationship was “great.”  However thereafter she says that things deteriorated.  She told the Family Report writer that, during the relationship, the father threw things at her, and was very emotionally and verbally abusive.  She gave an instance of the father throwing a washing basket at her, which did not hit her only because she moved out of the way.  On another occasion he had pushed her out of the car with his feet when she was at least six months pregnant, as a result of them arguing about something, although he returned five minutes later to collect her.

2. Additionally the mother told the Family Report writer that the father had been “very possessive and jealous” during the relationship and “wouldn’t let me go out and see friends.”

3. Post-separation, there have been two species of conduct by the father.  The first was his incessant phoning and messaging of the mother, particularly with a theme of seeking to have her admit to infidelity.  The second is the father’s interfering with the wedding album and wedding dress, and his smashing of the television and computer monitor.

4. The mother’s case it that there is a coercive and controlling aspect to this behaviour.  That was a concern shared by the Family Report writer, who thought, if the mother’s allegations about the father’s behaviour were true, that they were consistent with coercive and controlling violence, and more, the father’s denial of any such behaviour would inform that he had a limited capacity for change in the future.  At [93] Mr W continued:

   93. Children can be adversely affect through ongoing contact with a person who perpetrates family violence (including the exercise of controlling behaviour and psychological abuse) in a number of ways, including: having that person undermine the other parent’s role as a parent and their relationships with the children; increased risk of exposure to threats or actual violence against their other parent; increased risk of psychological abuse and manipulation of the children by that parent; and increased risk of exposure to neglectful or irresponsible parenting.  These risks are likely heightened when the parent instigating violence has the primary care of the children. 

1. Moreover, the Family Report writer noted that, whilst ordinarily one might seek to mitigate any such risk by having the parent complete a recognised program for perpetrators of domestic or family violence, there was no appropriate program in Western New South Wales that the father could avail himself of.

2. In evaluating whether or not I accept the mother’s evidence about the father’s conduct, there is little objective material, however there is some.  Particularly there is the tone of the father’s text messages which he sends the mother from time to time, which are consistent with a demeaning approach to the mother.  For instance on 28 October 2016 the father sent her a text message saying “Ur full of shit and U have to stop telling lies.”  Then on 5 December 2016 he said “I can why the kids don’t like being with you.  Just stop you weirdo.  I don’t have to put up with your shit.”  There are a number of other instances where the father is using poor language and abusive, denigratory, phrasing when dealing with the mother.

3. A controversial matter is whether or not at the end of child responsive interviews in April 2015, the father said to the mother, in the children’s presence, “you are a fucking liar I fucking hate you.”  As to that, the relevant consultant did observe an exchange between the father and the mother, but could not hear what was said.  She observed it to be apparently heated.  I am satisfied that the father’s denial of saying that in the conversation is untrue, and I am satisfied that it occurred as the mother says.

4. Generally speaking I accept the mother’s evidence in relation to the allegations of family violence, and am satisfied that there is a coercive and controlling component to it.

5. Interestingly, the consequences of that, as contended for by the mother, was not as dramatic as was apparently contemplated by the Family Report writer, at least in his oral evidence.  He appeared to be of the view that, if there had been such conduct by the father, it may justify the cessation of all time between the father and the children, although that was not taken up by the mother.  Rather, she contended the appropriate response was to move the primary care of the children to her.  I will consider that in due course.

Father’s drug use

1. There seems little doubt that the father has been using speed since about 2006 or 2007, because that is what he told Dr Dr I in 2012.  Moreover, as I have already recited, the tests of the father’s hair confirm subsequent use by him of not only amphetamine, but also methamphetamine.

2. The father has, on several occasions since 2012, said that he will no longer take amphetamines, and yet he has returned to their use on at least several identifiable occasions.  Moreover, in 2012 he refused to let his treaters advise the mother, or indeed any member of his family, of his amphetamine use, which, on one view, was so as he could continue to take the drug without suspicion from those around him.

3. The father says that virtually all of his use of amphetamines was to enable him to drive long distances without falling asleep.  In a sense, he therefore says that they were necessary for his driving, but were not otherwise used by him as a recreational drug.  The one exception he points to is when he says he took amphetamine as a form of analgesic after the stick had penetrated his leg in 2014.

4. Dealing with that episode, there is some independent corroboration of the father’s version of events.  He says that he waited three days before presenting at hospital, and it was towards the end of that period that he had recourse to amphetamine for pain relief (although his psychiatrist, Dr Dr I, said that in fact amphetamine does not effect pain relief). 

5. The independent corroboration comes from the New South Wales health records, which show that the father was admitted on Thursday 6 November 2014, but his history says “on Monday night patient was running in bush…”  That confirms what was otherwise a somewhat unusual aspect of the father’s evidence, namely that he waited three days before presenting at hospital.  Further, those notes record “patient states his pain and swelling got worse today,” which again is consistent with the father’s story.  What is not consistent is the record that says “patient admits he took amphetamine at the time of incident.”

6. In the end, as I have earlier stated, not much turns upon precisely when the father took the amphetamine: the simple fact is that he had access to it, and used it, in a context unrelated to his driving activities.  Precisely why the father would take amphetamine as an analgesic, rather than simply present to a medical practitioner, was not explored and is difficult to fathom.

7. I have already recited the results of the father’s drug tests from time to time, and particularly those in 2016 which suggested that the concentration of drug was consistent with him having used methamphetamine on more than one occasion.  Although up until giving oral evidence, the father had protested that he had only used amphetamine once, and never used methamphetamine, he ultimately conceded that he had used amphetamine twice in 2016.  However he continued to deny ever having used methamphetamine, which he seemed to regard as a more dangerous and less socially acceptable drug than amphetamine.  He did however say that he attempted to smoke amphetamine once in a pipe without success.  Perhaps it was, in fact, methamphetamine, but I cannot be so satisfied.

8. The simple fact is that the toxicology tests demonstrate that the father has ingested methamphetamine.  Perhaps he was unaware of what he was taking, and thought it was amphetamine, but there remains the live prospect that the father is simply being dishonest in relation to his use of drugs.

9. Certainly it does not appear as though he has explained to Dr Dr I the full extent of his drug use, and particularly did not tell him about his use of duramine in 2016.  As to that, Dr Dr I was of the view that it was most ill-advised for the father, with a history which he described as one of heavy and regular use of amphetamine, to then, whilst allegedly abstinent from amphetamine, use an effective substitute in the form of duramine.  That the father lost 10kg of weight which would suggest that he may have been ingesting duramine for some time.

10. The father protests that he has been abstinent from amphetamine, because he realises that it is not a good idea to be using it when he has the care of children.  Moreover he points to the fact that he now rarely travels long distances at night whilst carting cattle, and hence, inferentially, the attraction of ingesting amphetamine is reduced.

11. Some support for his argument that he has only ever used it (with the exception discussed) to assist him with driving, is to be had from the evidence of his parents, and indeed the mother, who, apart from the psychotic episode in 2012, claim never to have seen the father affected by drugs, or even suspected that he so was affected.

12. Given the father’s relatively lengthy history of amphetamine use, it would be idle to say that no risk still attaches to him in relation to further relapse and abuse.  On the other hand I do not think the evidence would enable me to conclude that the father remains a regular user of the drug.  Rather what the evidence points to is the risk that, at times of stress, the father may have recourse to drugs as a means of helping him cope.  However the risk is not of a magnitude that means that he should not spend time with the children, or that any time he spends with them needs to be supervised. 

13. Correctly, the mother identified that the appropriate way to deal with the risk is to have those around him to notify police in the event they believe he is under the influence of drugs.  A further means of mitigating the risk is to require the father to submit to ongoing drug tests, and for him to provide those results to the mother.  As to that, the father has an unfortunate history, at least in recent times, of maintaining his head hair length Dr Ier than the minimum length required to undergo testing.  Moreover (although it is apparently is habit of long standing) he keeps all of his body hair either Dr I or shaved.  Thus notwithstanding that prior to trial the Independent Children's Lawyer wanted the father to again submit to a hair test, it was said to be impossible, given the very Dr I hair which the father had. 

14. All of this maintains the suspicion that the father may be still ingesting amphetamine and/or methamphetamine, and is seeking to avoid detection.  Certainly the risk remained a live one, even at the time of trial.

Father’s marginalisation of the mother 

1. The mother says that the father, and indeed the paternal grandmother, have actively sought to exclude her from the children’s lives.  She points to the following conduct of the father and/or paternal grandmother as demonstrating that:

   ·Failing to advise the mother of the pre-school that D was enrolled in, in 2016 (accepting that indeed there is only one pre-school in F Town);

   ·Not advising the mother that D had commenced dancing lessons (the paternal grandmother said in her evidence that it was something that was between herself and D);

   ·Not extending an invitation to, or advising that D had been in a dance recital;

   ·Not directly advising the mother that C was to undergo the rite of First Reconciliation;

   ·Not directly advising the mother of B’s year six farewell dinner, and arranging for the paternal grandfather to attend instead of her (albeit that the mother did find out, and did attend);

   ·Failing to advise the mother that B was repeating year six this year;

   ·Not advising the mother that D has started in a transition to school unit;

   ·Not advising her of the decision for D to commence formal schooling next year;

   ·Not placing the mother’s contact details, or indeed even her name on D’s enrolment forms from time to time;

   ·Not placing the mother’s details, or indeed even her name, on the enrolment form for B at S School;

   ·Failing to advise the mother in relation to paediatric appointments (accepting that the father says that appointment only came up at the last minute);

   ·Not seeking the mother’s input into the information provided to the paediatrician;

   ·Not advising the mother in relation to B and C’s appointments for speech pathology;

   ·Not advising the mother of an appointment with a skin specialist for one of the children;

   ·Not advising the mother in relation to a “crazy hair day” at the children’s school.

2. The father’s, and indeed the paternal grandmother’s, response, was that they believed that the mother otherwise knew about these matters, or had the means of finding out.  However I am well satisfied that, even if that be the case, it was their hope, and perhaps intent, that the mother would not attend any of the relevant events.  That is because the father, and indeed the paternal grandmother, appear to have the most unfortunate view, that when the children are in the father’s care, it is “his (or their) time” and not the mother’s time.  Indeed the father has not only told the children that, but in evidence conceded that that was his view.  However as the Family Report writer said, such a view is not child focussed.  The child’s time is not one parent’s, depending upon in whose care the child is; rather the child’s time is his or her time.

3. Part of the difficulty might be that the father is still smarting from what he believes to have been the mother’s infidelity.  Certainly he was obsessed with that in the period after separation, and does not appear to have ever renounced the view that the mother had been unfaithful to him.  It is entirely possible that he is seeking to deprive the mother of knowledge of the children’s lives, and minimising her involvement in them, with a view to some sort of punishment of her for what he believes to have been the wrongs perpetrated against him by her.

4. I am satisfied that the children would benefit from the mother being engaged in their lives, in a more wholehearted way than the father appears to want to support.  There plainly is a risk that the children will feel that the mother is not interested in their lives if, for instance, she does not attend important events, such as end of school dinners, dance recitals, sporting presentations and the like.  These are important milestones for children, which they likely wish to share with both parents.  The father has little insight into the fact that depriving the children of both parents at those events, is likely to cause them distress.  In that sense he poses a risk of emotional harm to them.

5. The mother says that the appropriate means of mitigating this risk is to have the primary care of the children put to her.  Another means might be to require the father to undertake post-separation parenting courses, although it does not appear as though he has expressed any desire to do so, to date.

PARENTS’ CAPACITY TO PROVIDE FOR CHILDREN’S NEEDS

1. No party contended that the mother was incapable of providing for the children’s needs.  Particularly, it was said that, in the period of time covered by the initial parenting plan, the mother had willingly permitted the children to spend considerable time with the father, and shown some flexibility in relation to increasing that.  Some slight criticism was made of the children being hungry on occasions when in the mother’s care, but I am well satisfied that the mother has the capacity to physically provide for the children.  Again some attempt was made to dissect the mother’s expenses, with a view to showing she would be unlikely to be able to afford the children’s costs of care, but I am well satisfied that her salary, which is considerable, would enable her to pay for the costs of raising the children.

2. Turning to the father, it is plain that, at least with the assistance of the paternal grandmother, he has been able to do a good job in raising the children.  The only criticism that is made of him, really, is that he has attempted to marginalise the mother’s involvement in the children’s lives, as previously discussed.  Other than that deficit, plainly the father has the capacity to provide for the children’s needs.

3. True it is that the father’ capacity, without the assistance of the paternal grandmother, remains untested, but it is likely that she will continue to have a significant involvement in the children’s lives, if they remain living with the father.

CHILDREN’S BENEFIT FROM MEANINGFUL RELATIONSHIP WITH EACH PARENT

1. Both parties conceded that all the children needed to maintain a meaningful relationship with each parent, and inferentially therefore conceded benefit from that relationship.  They were supported in that by the Family Report writer, who said that unless the father were assessed at a high risk of harm to them, the children would benefit from a relationship with both parents.  He sounded a note of caution, and said that if one parent impinges upon the ability of the other to have a relationship with the children, then steps may need to be taken to redress that, but otherwise his view was that the best means of facilitating a meaningful relationship, was for the children to spend regular, face-to-face time with both parents, and for them to be involved in their lives.

2. Interestingly, Mr W denied that the literature supported the view that during adolescence, children obtain any particular benefit from spending time with the parent of their gender.  He said that if the interests of the same gender parent and child align, there would probably be benefit, but otherwise he thought it unlikely.

WOULD EACH PARENT FACILITATE MEANINGFUL RELATIONSHIP BETWEEN CHILDREN AND OTHER

1. Because of the way in which the mother structured her case in relation to risk, I have already traversed much of the material which deals with the father’s failure to involve the mother in the children’s lives, which therefore informs the prospect that he would continue not to promote that relationship with any real enthusiasm.  However there is additional material which supports the argument that he is unlikely to promote a relationship between the children and the mother, or at least his household is unwilling to.  Particularly that arises from the paternal grandmother’s influence, including:

   ·Both the father and paternal grandmother conceding that the father has told D that he and the mother are not friends, because the child (aged four) “should know the truth about these matters.”  The prospect of this emotionally harming the child did not appear to register on their radar;

   ·The paternal grandmother’s evidence that, when the children seem dispirited about spending time with the mother, she thinks that she is encouraging them to go, when she says things such as “you will get through it,” “everything is going to be alright,” “it won’t be that bad;”

   ·Similarly, when speaking with the children about their disinclination to move to M Town, and the children tell her that they intend to run away, her response is to say things such as “it can’t be that bad that you have to run away,” or “you never know it might be good;”

   ·The paternal grandmother’s bland acceptance that the children don’t enjoy their time with the mother, for instance, when the children went of a ship cruise with the mother, accepting their statements that it was boring and not enjoyable for them;

   ·The paternal grandmother telling the children, when they are saying that they don’t love their mother, that “you’ve got to love your mother.”

2. The point which was made forcefully by Senior Counsel for the mother was that, not only was there no actual encouragement being offered to the children to maintain a positive view of the mother, but that tacitly the children were being supported in their negative view of her, and certainly not in any real way being challenged.

3. I do not overlook the fact that, for many months, the paternal family have been, no doubt at great expense and inconvenience, driving the children half way to M Town and back again each alternate weekend (and on other occasions), but that itself is no doubt a negative experience for the children, who obviously resent that level of travel.  What is missing in the father’s household is any positive promotion of the relationship between the mother and the children, or any positive projection of the mother as an important figure in the children’s lives.  Although both the father and paternal grandmother professed to say that the mother was an important figure in the children’s lives “because she is their mother,” beyond that fairly wooden statement, there was little demonstration of them actively promoting her.

4. Mr W was of the view that there is an obligation on the primary residence parent to actively seek to promote the relationship between the children and the other parent, or conversely, it is incumbent on that parent to recognise that a failure to promote the relationship can lead to negative consequences for the children.  Unfortunately I am well satisfied that the father, and his household more generally, are unlikely to ever promote, in any meaningful way, the relationship between the children and the mother.

5. Turning to the mother, it has to be said that in recent times, since she moved to M Town, with the consequence that the primary care of the children moved to the father, she is untested in relation to her facilitation of a relationship between the father and children.  However as I have previously indicated, during the period of the parenting plan, she did demonstrate real flexibility, and did involve the paternal family in the children’s lives in a more enthusiastic way than I assess the father’s household presently involves her in the children’s lives.  There is no real reason to think that the mother’s position in that regard has changed.

LIKELY EFFECT ON CHILDREN OF COMPETING PROPOSALS

1. Somewhat ironically, neither of the parties’ proposals found much favour with the Family Report writer, who was of the view that those proposals were reflective of appropriate arrangements between parents who get on reasonably well, but were unsuitable for high conflict situations such as sadly prevail here.  Particularly he focussed upon the excessive travel which both parties’ proposals required the children to undertake.  He said that level of travel really required there to be substantial motivation in the both parents for the children to spend time with the other parent.  However both parties’ proposals retained extensive travel, even after that evidence.

2. The effect of the mother’s proposal would be that the children would leave F Town, and Property K in particular, and move to live in a larger city than they say they feel comfortable in.  Further, it would involve the children attending schools which they profess a dislike of, or at least a lack of interest in.  The mother concedes that the children have expressed to her their views that they do not wish to move to M Town, do not wish to leave Property K, and do not wish to attend the schools that the mother has in mind for them.  Inevitably that means that the children will be very disappointed if they move to live with the mother, albeit Mr W thought that, over time, that disappointment will abate, and they will adjust to their new situation.

3. Ironically the mother’s proposal likely sees B spend more time at Property K than the father’s proposal would.  That is because the father proposes that B be a seven day boarder at S School, and only return home on holidays.  The mother’s proposal would see him in fact travel to Property K every third weekend, together with half of school holidays.  Further, she points that her proposal would not terminate the children’s connection with Property K, which would remain intact and regularly experienced by them.  She also argues that the father’s proposal does not see the children primarily living at Property K, but rather living in F Town.

4. There are, of course, advantages for the children in the mother’s proposal, that flow from her living in a larger town than F Town.  In M Town, there are a greater range of activities for the children to engage in, albeit they do not have the benefit of being experienced in a rural environment such as Property K.  She anticipates that she will be able to continue to take them for motocross, and that the boys’ other interest, rugby, will be better able to be enjoyed by them, because there are more teams in the M Town district.

5. Notwithstanding those advantages, it has to be conceded that the children, or at least the boys, will be extremely disappointed if they reside with the mother in M Town, as she proposes.

6. As to how she might deal with that, the mother indicated that she has spoken with her work’s employee counselling service, and intended to access it to develop strategies to help with the children’s coping with any change, and if needs be, would seek external professional assistance for them.  Certainly she struck me as cognisant of the likely difficulties she will have in assisting the children to adjust, in the event that she is successful in these proceedings.

7. Therefore, ultimately, I am satisfied that the effect of the mother’s proposal will be one of Dr I term disappointment for the children, but that in due course, over time, they will adjust to the changed circumstances.

8. As to the father’s proposal, until B starts boarding school next year, it is simply a continuation of the present arrangements, save that there will be a slight reduction in the time the children spend with the mother from each alternate weekend, to every third weekend.  However when B starts boarding school, the father does not propose that B would spend time with the mother, or with the other children, although he would not be opposed to the mother collecting him from school, so that he could spend time with his siblings when they are with her.  However unless that occurred, and apart from weekends when the father may take the other children to Q Town to spend time with B, the reality is that his proposal would see the siblings separated during school terms.  When C starts boarding school in 2019, as the father proposes, only D would be left in F Town.  She would then only be six years old, and only get to see her brothers during school holidays, or on weekends if the father took her to see them at Q Town, or if on the weekends when the mother had D, she also retrieved both boys from boarding school.

9. I have already noted the irony that, notwithstanding the steady focus of the father’s case upon the children’s connection with Property K, on his proposal, by 2019 the boys would be spending substantially less time at Property K than they would on the mother’s proposal

10. I do not overlook the fact that the paternal family has a connection with S School, in that the boys’ grandfather and father attended there as boarders, and therefore there may be a sense that S School is an extension of Property K, or at least the paternal family, but the reality is that cannot compensate for the separation of the siblings during their boarding school years.

11. As to that, the Family Report writer said there was no clear evidence that boarding school was either good or bad for children, and he noted that some children absolutely thrive in that environment.

12. Therefore, on balance, the father’s proposal is likely to see, within a relative Dr I space of time, D being separated from both of her brothers for virtually all of her school life.  She would only get to experience them on school holidays, or on any weekend when they happened to all be together.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already addressed both of the primary considerations, and many of the additional considerations when discussing the issues.  Nonetheless, by reference to the additional considerations, I further observe as follows.

2. The two boys have expressed strong views that they do not wish to live in M Town, and do not wish to move away from F Town and Property K.  They have also expressed strong views that they wish to attend S School.  The boys are 12 and 10 years old respectively, and therefore their views should be given some weight.  However I do not give them determinative weight, not only because of their age, but also because it is likely that they are, to some degree, influenced by the paternal family.

3. As to D’s views, they were not in evidence before me, save that it appears as though she wishes to spend more time with her mother, in that she is distressed when she has to leave her.  Beyond that she has expressed no view.

4. The children have good relationships with both sets of grandparents, albeit it appears as though they are closer to the paternal grandparents.

5. Criticism was made of the mother for moving away from F Town, and particularly that she resigned her employment in F Town knowing that the father did not consent to the children relocating to M Town.

6. The mother has not paid any child support to the father, or otherwise contributed to the cost of maintaining the children whilst in his care.

7. By virtue of the distance between the parties’ households, there is real difficulty and expense in the children maintaining personal relations and direct contact with both parents, on a regular basis.

8. Family violence orders have applied, and they have been breached by the father.  The inference I draw from that is that without those orders, and without the consequences of breaches of them being sheeted home to the father, it is likely that he would have continued to harass the mother, albeit now it appears as though he has chosen to cease all direct communication with the mother whatsoever.

9. The mother has the right to live wherever she chooses, subject to domestic law.

PARENTAL RESPONSIBILITY

1. Obviously there are reasonable grounds to believe that there has been family violence in this case.  The presumption of equal shared parental responsibility therefore does not apply.  In any event, it could not seriously be said that the parties either have adequately discharged their responsibilities under the existing orders for equal shared parental responsibility, or that their communication is of a nature which would be able to permit them to so discharge their obligations.  Both parties recognised this by seeking orders for sole parental responsibility, and conceded that, in the event that the children were not in their primary care, parental responsibility should flow to the resident parent.  I accept that is the case, and the only practical solution.  Therefore parental responsibility will go to the primary residence parent.

WITH WHOM SHOULD CHILDREN LIVE

1. During the course of the trial, and with the parties assistance, I identified the following points of as being in favour of the children remaining primarily living with the father, or being contrary to the mother’s proposal:

   ·The father has the capacity to provide for children’s needs (albeit also dependent on paternal grandmother to meet them);

   ·The children have a good relationship with the father (and paternal family generally);

   ·The children would benefit from a meaningful relationship with the father (and paternal grandparents);

   ·The father’s proposal would be best means of facilitating a meaningful relationship between the children and the father (and paternal grandparents);

   ·The children have a strong association with Property K, and likely derive part of their identity from it (albeit the mother’s proposal won’t terminate that);

   ·The father’s proposal accords with the boys articulated wishes (accepting they may be influenced);

   ·The father’s proposal would enable the mother to maintain a meaningful, albeit sub-optimal, relationship with the children;

   ·There is a live prospect that if ordered, the father’s proposal would see the mother move to F Town, with the further prospect of her, at least, spending substantial and significant time with the children, when they are in F Town;

   ·The father’s proposal would see the children attend a school with which they have a family history and connection;

   ·The mother’s proposal would significantly disrupt the children’s lives, and see them move away from the area they have always lived in;

   ·The mother is, in recent times, untested as to her willingness to facilitate a meaningful relationship between children and father (and paternal family generally);

   ·The mother’s proposal only arises because she chose to leave F Town (accepting that the father’s behaviour at time involved him breaching AVOs);

   ·The mother’s proposal would significantly reduce the children’s time at Property K (except B, if at S School, and then C when schooling there as well);

   ·The children have expressed their dislike for M Town, and bigger towns more generally;

   ·The mother’s proposal requires regular, long, travel for the children (albeit so does the father’s);

   ·The mother’s proposal does not enable the children having everyday experience of the activities they engage in at Property K;

   ·The mother’s proposal sees the boys as day students at T School, thereby undertaking a significant daily commute to and from school;

   ·The mother’s proposal will likely see the children require regular care by third parties (eg after school);

   ·The mother has little family or other support in M Town (albeit there is such support in L Town).

2. On the other hand the following points were identified as being in favour of the children moving to live with the mother, or contrary to the father’s proposal that they continue to primarily live with him:

   ·The mother has the capacity to provide for children’s needs (including better organisational skills than the father);

   ·The children have a good relationship with mother (and the maternal family generally);

   ·The children would benefit from a meaningful relationship with the mother (and the maternal family);

   ·It would be the best means of facilitating a meaningful relationship between the child and the mother (and the maternal family);

   ·Historically the mother has been the better facilitator of a relationship between the father and the children than vice versa;

   ·The mother’s proposal is the only one that would see all children live together in one household during their schooling;

   ·The mother’s proposal would enable the father to maintain a meaningful, albeit sub-optimal, relationship with the children;

   ·There is a greater range of activities for the children in M Town (albeit different to those they presently engage in, at F Town);

   ·The paternal family have been reluctant to, and poor at, facilitating a meaningful relationship between mother and children (although it nonetheless has been maintained);

   ·The mother’s proposal significantly reduces the chances that the children are exposed to risks associated with father’s drug taking and psychological issues (accepting he says both are now historical) and any risk of harm from unsecured firearms at Property K (albeit the mother left the children there in 2015);

   ·The mother’s proposal will likely better shield the children from the father’s (and paternal grandfather’s) forthcoming criminal trials, and any jail time they may serve;

   ·The mother’s proposal would not see the children lose their connection with Property K and F Town;

   ·The mother’s proposal would not see the children lose their involvement in activities such as motocross and rugby;

   ·Both boys will likely have connections with T School (eg friends from primary school attending there);

   ·The current status quo in relation to the prevailing orders only came about by the father (and perhaps the paternal grandmother) concealing the father’s drug use from the court during earlier hearings;

   ·The father’s proposal sees the siblings separated during school terms;

   ·The father’s proposal requires regular, long, travel for the children (albeit so does mother’s) and has the complication of co-ordinating the child/ren at S School with the children at F Town;

   ·The father’s proposal (on one view) is really just a proxy for the paternal grandmother parenting the children;

   ·The father’s proposal likely involves some long, commutes to primary school in F Town;

   ·The father’s proposal, once the boys are at S School, sees them spend less time as a sibling group, than they would under the mother’s proposal. 

3. In my view, weighing those competing considerations, does indeed demonstrate that this is a very finely balanced case.  However it seems that the critical issue is indeed that identified by the Independent Children's Lawyer, namely, which parent is best likely to facilitate a meaningful relationship between the children and the other.  I have already observed that the paternal household, to date, has a very poor record of involving or promoting the mother in the children’s lives.  True it is that the mother is in recent times untested in that respect, but when she was the primary resident parent, it is obvious that she was willing to facilitate and promote the father in the children’s lives.

4. I am conscious that the mother’s proposal is contrary to the boys’ strongly articulated views and wishes.  However the evidence satisfies me that the boys’ disappointment will, over time, abate.  Moreover the mother’s proposal has the benefit that the children will remain an intact sibling group for their (or at least the boy’s) childhoods.

5. Weighing all these matters in the balance, as I am obliged to do, in my view favours the mother’s proposal as being more in the children’s best interests.  There will therefore be an order that the children move into the mother’s care, and relocate to M Town.  As to the timing of that, I am satisfied that it should commence three weeks prior to the commencement of the 2018 school term.  That will see the children continue to have a holiday experience of Property K, and yet be able to move into the mother’s care and prepare for the new school year with sufficient time.  It will also enable them to commence their adjustment to life in M Town without immediately having to also attend new schools.

TIME AND COMMUNICATION WITH FATHER

1. Ultimately there was little difference between the father’s alternate proposal and the mother’s primary proposal, in this respect.  The Independent Children's Lawyer proposed that the father should have a disproportionately greater amount of time for school holidays other than Christmas; ultimately the mother conceded that should occur for the spring and autumn holidays, but that she should have a disproportionate amount of time in winter, so as she can take the children to undertake winter activities closer to M Town.  I am satisfied that that is the appropriate order, and will make it.

2. Otherwise there will be orders as contemplated by the Independent Children's Lawyer in relation to the father spending time and communicating with the children, and I am satisfied that those orders are in the children’s best interests.

OTHER ORDERS

1. The only other matter of substance in dispute between the parties is schooling.  The father wishes the children to board at S School, which is a co-educational boarding school which has the benefit that all of the children could attend the same school.  The mother proposes that the two boys attend T School (accepting that C will initially, until High School, attend school in M Town).  It is common ground that, when living with the mother, the children could not commute on a daily basis to S School. 

2. The father did not seriously press a case that, if the children lived in the mother’s care, they should nonetheless attend S School, and I am well satisfied that such a proposal would not be in the children’s best interests.  One of the real advantages which the mother’s case has, is that it maintains the siblings together for their (or at least the boy’s) schooling years, even accepting that the boys will have lengthy commutes each day to and from T School.

3. I am satisfied that the mother should be able to determine which schools the children attend from time to time.  Therefore I will not make an order requiring the children to attend any particular school; the mother may chose it in the exercise of sole parental responsibility.

4. Otherwise there will be orders in the terms as sought by the Independent Children's Lawyer, including those relating to the father’s drug testing; costs may be sought in the usual way.

CONCLUSION

1. For these reasons there will orders pronounced as set out at the commencement of this judgment.   

I certify that the preceding one hundred and fifty six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 14 December 2017.

Associate:  T Ranson

Date: 14 December 2017