Chandler and Wurt

[2016] FamCA 252

FAMILY COURT OF AUSTRALIA

CHANDLER & WURT [2016] FamCA 252

FAMILY LAW – PRACTICE AND PROCEDURE – Principal Registrar - Review of decision – Whether the mother should have time with the children – Where the father lives in Sydney – Where the mother lives in Queensland – Where the mother has a newborn baby to her incarcerated former partner – Where the father agrees to pay for airfares and contribute $100 to costs and expenses of the weekend per visit – Where the father previously tested positive for methyl amphetamines from a hair follicle test. 

Family Law Act 1975 (Cth) s60CC

APPLICANT: Ms Chandler

RESPONDENT: Mr Wurt

INDEPENDENT CHILDREN’S LAWYER: Fred Lang

FILE NUMBER: LEC 31 of 2014

DATE DELIVERED: 21 April 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 18 April 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Boys

MPB Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Dwyer

as Town Agent for
Jessep & Storm Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Huth

Legal Aid Queensland

Orders

1. That all previous parenting Orders be discharged.

IT IS ORDERED UNTIL FURTHER ORDER

1. That the children, B born …2009 and C born … 2012, (“the children”) shall live with the father at the paternal grandparents’ home in Sydney.

2. That the children shall spend time with the mother as might be agreed between the mother, the father and the Independent Children’s Lawyer, but in default of agreement as follows:

   (a)Every third weekend during New South Wales school term from Saturday morning until Sunday afternoon; and

   (b)During each New South Wales school holiday period in Autumn, Winter and Spring, in south Queensland, for a period of five (5) days being from the first Monday to the next Friday of those holidays, from 9.00 am to 5.00 pm (local time) on each of those days; and

   (c)During each New South Wales school holiday period in Summer for two (2) periods of  seven (7) days being from the first Monday to the next Sunday of those holidays and the fourth Monday to the next Sunday of those holidays, from 9.00 am to 5.00 pm (local time) on each of those days.

3. The weekend time the children are to spend with the mother shall commence on Saturday, 30 April 2016 and it shall be suspended at the end of each school term, starting again on the first Saturday after the children go back to school at the beginning of each new school term in New South Wales after school holidays.

4. The weekend time the children are to spend with the mother shall take place in Sydney in accordance with the following:

   (a)The mother shall fly to Sydney from D Town for that weekend time to take place in Sydney, accompanied, at her discretion, by her infant child;

   (b)The father shall book and pay for the mother’s return flights to Sydney so that she arrives at Sydney domestic airport by 9.00 am (Sydney time) on the Saturday morning and so that she flies out of Sydney domestic airport no earlier than 4.00 pm (Sydney time) on the Sunday to return home to D Town;

   (c)The mother shall notify the father (by telephone call, by text message or by email) no later than two full weeks before the scheduled third weekend (save for, of course, the first of those weekends), of her intention to travel to Sydney on the next scheduled third weekend to spend time with the children and as to whether or not she will be taking her infant child with her;

   (d)The father shall, within 48 hours of receipt of that written notice from the mother that she will be travelling to Sydney on the next scheduled third weekend, book and pay for return air tickets for the mother (accompanied by her infant child if she has told him she will be) and provide the mother with the details (by telephone call, by text message or by email) of the flight bookings and schedule;

   (e)The father shall cause one or both of the paternal grandparents to take the children to meet the mother off the plane when she arrives at the Sydney domestic airline terminal and, on the first three (3) occasions that the children spend time with her on these weekends in Sydney, to stay with the mother and the children for two (2) hours to ensure the children settle into the mother’s care;

   (f)The father shall provide the mother with $100 (one hundred dollars) each time she travels to Sydney on these scheduled weekends to assist her with the expenses of finding somewhere to stay in Sydney of her choosing on the Saturday night and with the expenses of spending time with the children on those weekends;

   (g)The mother shall inform the father on each such weekend (by telephone call, by text message or by email), by no later than nightfall on the Saturday night she is in Sydney where it is she and the children will be staying for the night during such scheduled weekends;

   (h)The father shall cause one or both of the paternal grandparents to meet the mother and the children at the Sydney domestic airline terminal no later than 1 (one) hour before the scheduled departure time of her flight back to D Town, and the mother shall then deliver the children back into the paternal grandparent/s care;

   (i)The father shall remain at least 500 metres away from the mother at all times that the children are spending time with her in Sydney pursuant to these orders.

5. That for the time the children are to spend with the mother during New South Wales school holidays, the father shall take the children to the south Queensland and stay there for the duration of the week, delivering them to and collecting them from the mother at McDonalds’ Family Restaurant D Town at 9.00 am (D Town (Queensland) time) and 5.00 pm (D Town (Queensland) time) on each of the days they are to spend time with her, with the father or the mother being entitled to have one other person deliver or collect the children to and from the other parent in his or her absence, provided he or she gives the other parent notice by telephone call, text message or email of  such intention and the identity of the other person.

6. That save as otherwise provided in these orders, the children’s scheduled time with the mother does not need to be supervised.

7. That the children shall communicate with the mother by telephone:

   (a)each Monday, Wednesday and Friday;

   (b)on each of the children’s birthdays;

   (c)on Christmas day from 6.00 pm to 6.30 pm New South Wales time;

   (d)with the mother to initiate the telephone call and the father to ensure the children speak with their mother and are given privacy to do so; and

   (e)with the father to arrange for the children to telephone the mother on the following night if, for any unforeseen circumstance, the children miss the telephone call from the mother.

8. That the mother shall not consume or be under the influence of alcohol during any telephone communication with the children.

9. That during the time the children are spending time or communicating with either parent, that parent shall:

   (a)respect the privacy of the other parent and not question the children about the personal life of the other parent;

   (b)speak of the other parent respectfully;

   (c)not denigrate or insult the other parent in the presence or hearing of the children; and

   (d)use his and her best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

10. That the children and the mother be at liberty to exchange cards, gifts and letters.

Restraints

1. That the mother shall not consume or be under the influence of alcohol or any illicit drug during any time that the children are in her care.

2. That the mother shall ensure the children are not brought into contact with, Mr E, at any time that they spend time with her pursuant to these orders.

3. That the mother and the father shall not bring the child into contact with any person taking or under the influence of illicit drugs.

4. That the father shall not take or be under the influence of any illicit drug during any of the time the children are in his care pursuant to these orders.

5. That neither parent shall discuss these proceedings with the children.

Exchange of information/authorities

1. That each parent keep the other parent informed at all times of their residential address, email address and contact telephone number and notify the other parent within twenty four (24) hours of any change.

2. That each parent shall keep the other informed of the children’s doctors, health care and other treatment providers and authorise said practitioners to provide the other parent with information that they are lawfully able to provide about the children and this Order shall serve as such authority.

3. That each parent shall inform the other parent as soon as reasonably practicable of any serious medical condition, serious health issue or significant illness suffered by the children whilst in their care and shall authorise any treating medical practitioner to release the children’s medical information to the other parent.

4. That the parents shall keep each other informed of any daycare, school, educational facility or extra-curricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the children and the option to purchase school photographs and this Order shall serve as such authority.

5. That if there is a cost associated with the provision of any information or documents under these Orders from the children’s doctors, health care and other treatment providers or daycare, school, educational facility or extracurricular activity provider the expense shall be borne by the parent requesting the information.

Professional referrals

1. That the mother and father undergo such random supervised blood tests of their Carbohydrate Deficient Transferrin levels and/or a urine alcohol and drug screen as required by the Independent Children’s Lawyer, with such test to be undertaken within twenty four (24) hours of any request with the cost of the test to be borne by the party being tested.

2. That the father continue to undergo hair analysis for the presence of illicit drugs, such test to be undertaken on such dates as directed by the Independent Children’s Lawyer, at the father’s expense and, after he has been given notice of such testing requirement by the ICL he shall not have his hair cut or died until after a suitable sample of hair from his head has been collected and

   (a)To verify his identity the father provide photographic identification at the time of collection of the head hair sample; and

   (b)The father ensure the testing is performed by Forensic Science South Australia, ....

   (c)Upon receipt of the test results by the father’s health care professional the father forthwith provide a copy of his test results/report to the court and each of the other parties.

3. That any testing under paragraph 21 of these orders shall be verified by a certificate to include a temperature endorsement thereon, with a copy of the certificates so obtained to be forwarded to the Independent Children’s Lawyer within forty eight (48) hours of receipt of said certificate.

4. That a diluted sample will be deemed a dirty sample.

Parental Responsibility

1. That the mother and the father have equal shared parental responsibility for the children.

2. That all other interim applications are dismissed.

3. That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 31 of 2014

Ms Chandler

Applicant

And

Mr Wurt

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. In my duty list on Monday 18 April, 2016 I heard competing applications for interim parenting orders by each of the parents in these proceedings. The dispute was before me by way of an Application for Review of the Principal Registrar’s decision of 8 December 2015.

2. The subject children are B born in 2009 (six years old) and C born on in 2012 (three years old). They are represented in the proceedings by an Independent Children’s Lawyer appointed when the matter was still in the Federal Circuit Court (“the FCC”), where it was started a few years ago.

3. The dispute between these two parents about the parenting of their two children has been ongoing since their separation at the end of a long de facto relationship in December 2013 when they were living at the southern end of Queensland. Unfortunately for both of them and their children, each parent has a history of struggle with substance abuse and the mother also with mental health problems.

4. Proceedings were commenced in the FCC soon after their separation but final parenting orders were made by consent soon after. They agreed to share parental responsibility for the children. Significantly, they agreed the children would live with the mother and spend time with the father every second weekend during school term and for half of their school holidays.

5. Conflict between the parents emerged again soon after and brought them back to the FCC in June 2014. More parenting orders were made by consent with the children to go back to the mother’s care (they were being retained by the father) with the mother and the children to stay with the maternal grandmother until the mother obtained appropriate independent accommodation for herself and the children. There were restraints imposed upon each of the parents in respect of consumption of drugs or alcohol and, in the mother’s case, stopping her from bringing the children into contact with Mr E, a man said to be her “former partner”.

6. The matter came back before the FCC again in September 2014 and Judge Purdon-Sully made orders varying arrangements so that the children would live with the father at his parents’ home in Sydney and for the children to spend supervised time with the mother every third weekend and during periods of five to seven days in the school holidays. Her Honour placed a great deal of weight upon the evidence of the family report writer who had seen the family and provided a report. His recommendations, supported by the ICL, were essentially followed by her Honour.

7. The matter was back before her Honour again in February 2015. There were some difficulties in respect of the supervision of the children’s time with their mother and amendments were made to reflect those matters.

8. In June 2015, the matter was back before the FCC again with some more amendments being made to the parenting orders and other procedural orders being made. Her Honour transferred the matter to this Court then.

9. On the mother’s application, after the matter had come into this Court, for further orders on an interim basis, the matter was listed before the Principal Registrar (“the PR”). The PR made some changes to the interim parenting regime provided for by the amalgam of previous FCC orders. Critically, the PR’s orders provided for a continuation of the supervision of the children’s time with their mother across a number of alternative scenarios of whether the children spend time with the mother in Sydney or in Queensland. Much of the dispute in recent times has centred around supervision and who might be suitable to supervise the children’s time with their mother.

10. Consequently, it is undisputed that the children have not seen their mother at all since November of last year, 2015, notwithstanding the orders made by the PR. That is simply not acceptable as it is not in the best interests of these two young children not to be spending any time with their mother whilst substantive parenting orders proceedings remain pending in this Court and where she was their principal carer until September 2014.

11. Of further relevance, is the fact that the mother has given birth to another child, a boy, in December of 2015. The two children the subject of these proceedings have not yet actually met and spent any time with their baby brother. That is not an acceptable set of circumstances either.

12. Of further relevance though, is the fact that the mother’s new baby is the child of Mr E, who, I have observed, was previously referred to as the mother’s “former partner”. He is currently serving a sentence of imprisonment in Queensland for an “assault” conviction. The mother’s solicitor candidly told the Court that it is the second period of imprisonment he has served since the separation of the parents in this case. Indeed, the mother’s solicitor candidly informed the Court that prior to those two periods of incarceration, Mr E had served many years in prison in Queensland for a serious offence of violence for which he was sentenced to 14 years of imprisonment. He is currently expected to be released from prison in June this year, the Court was told.

13. It is Mr E’s relationship with the mother that was one matter that seriously concerned the family report writer, the ICL and ultimately the FCC Judge at the time the orders were made that the children live with the father in Sydney. Evidence from Police records was adduced before me on Monday. That evidence supports a finding, although the mother apparently denies it, that Mr E was violent and abusive to the mother sometime last year, before he was imprisoned on this latest occasion, and after the children were already living with the father in Sydney.

14. Further, when the FCC Judge restrained the mother from drinking alcohol whilst the children were in her care, by consent order in mid-2014, the mother had recently been convicted of driving with in excess of the prescribed concentration of alcohol in her blood. Then, very shortly after the injunction was granted restraining her from drinking whilst the children were in her care, the mother was convicted, not once, but twice on the same night, of again driving with in excess of the prescribed concentration of alcohol in her blood. Both these offences occurred with the children in her car. That was another factor in the Judge’s September 2014 decision to remove the children to the father’s care and to impose supervision of the time the children spend with the mother. It seems the mother is now without a driver’s licence.

15. The father though, was not without blemish and his own history of self-confessed drug abuse led the FCC Judge to make orders that required the father to move to Sydney and live with the paternal grandparents if he was to have the children in his care.

16. I note here also, a request by the Judge for the Director General of the Queensland Department of Communities, Child Safety and Disability Services to intervene in the proceedings has not brought about such intervention. The FCC Judge was left, in a difficult parenting case where both parental applicants were not distinguishing themselves with great parenting capacities, to determine with which one of them these two little children should live.

17. In the middle of last year, the Court received the benefit of a report on the two parents produced by Dr F, a psychiatrist experienced in providing such reports to this Court and the FCC. Dr F was not of the opinion that the father suffered from a major mental illness. There was no suggestion, he said of psychosis or major mood disorder. The doctor suggested there might be significant personality vulnerabilities in the father if the mother’s assertions were assessed to be true, but he was not prepared to say that the father’s presentation or history was consistent with a diagnosis of personality disorder per se.

1. The doctor quite appropriately pointed out that the father was prepared to leave the children in the mother’s care during the relationship and post-separation despite the concerns he has since raised about the welfare of the children in her care due to her “underlying psychiatric condition” and her propensity to substance and alcohol abuse.

2. Dr F reports the mother has been diagnosed with schizophrenia complicated by substance abuse, poor insight and poor adherence to pharmacological treatment. He also expressed the view that she would display significant problematic personality traits if the father’s assertions are assessed to be true. He also expressed the view that she has difficulties prioritising the needs of the children ahead of her own.

3. Significantly, Dr F reported on the mother’s emotional lability during the family report process. He did not consider this was a result of her underlying psychiatric illness though, as there was an absence of other psychotic symptoms. He related it more to the presence of the problematic personality traits.

4. Dr F suggested the father might benefit from a referral to a suitably qualified mental health practitioner to assist him in managing the complexities of a co-parenting relationship with the mother in the long term. To his credit, the evidence adduced before me was that the father has been seeing a psychiatrist in Sydney following this recommendation.

5. The father’s drug use was flagged by Dr F as a problem, particularly if his asserted abstinence was unable to be maintained. On the other hand, Dr F said that if the mother was able to demonstrate ongoing appropriate management for her underlying psychotic illness with regular reviews by a medical practitioner as well as adherence with appropriate pharmacological medications and was able to demonstrate ongoing abstinence from illicit substances and the excessive use of alcohol, he would not be concerned that she would pose a risk to the children on a supervised or unsupervised basis as a result of her underlying psychiatric illness.

6. However, Dr F went on to discuss the mother’s personality and substance abuse irrespective of whether it impacts upon her underlying mental illness. He said that if the problem were to be ongoing it would demonstrate difficulties in prioritising the needs of the children ahead of her own. He said if she was not suitably engaged with a medical practitioner or demonstrating ongoing compliance with her prescribed medication and was seen to be continuing to use illicit substances and failing to protect the children from inappropriate displays of emotion within her household, he would have concerns the children would be at risk of significant harm in the care of the mother on an unsupervised basis.

7. These opinions, and others of the family report writer from the year before, underlay the FCC Judge’s orders made in mid-2015 and, no doubt, the PR’s December 2015 decision.

What I was asked to decide?

1. On the review application before me on Monday of this week, the mother’s solicitor pressed the mother’s application for the children to be ordered to live with the mother again in Queensland.

2. The father, who also was represented by a solicitor, opposed that application of the mother and initially maintained that supervision of the children’s time with the mother should continue. Although the children had not spent time with the mother since November 2014, because it has not been possible to put arrangements in place that meet the requirements of all of the orders currently in force, the father still only proposed a few hours of supervised time at a contact centre in Sydney near where he and the children live. To his credit though, he proposed paying for the mother to fly down to Sydney for this purpose on a regular basis.

3. The ICL, who appeared through an agent, also a very experienced ICL in the employ of Legal Aid Queensland, did not support the mother’s application that the children should live with her. She also submitted that care should be taken before orders were put in place for the children’s time with the mother to be unsupervised.

4. Nevertheless, during the hearing, I raised the possibility of the children spending time with the mother in Sydney, unsupervised, for an overnight stay on a regular, periodic basis.

5. Significantly, the father, through his solicitor, did not seriously oppose the idea. He volunteered that he would, despite not having a steady source of income other than from Government benefits, pay for the mother (and her infant child) to fly to Sydney each second weekend and give her up to $100 towards the costs incurred by her, particularly in accommodating herself and the children for the Saturday night.

6. The submissions for the ICL around this issue focused on the risk of emotional harm to the children caused by the mother’s unrestrained denigration of the father in their presence and her emotional lability. Otherwise, with respect to the solicitor who appeared for the ICL, I did not get a sense that the idea was opposed with any great vigour.

7. Of course, the mother opposed the idea. She said that there was no reason why the children should not be in her full-time care. She said that there was no reason why they should not be spending time with her in Queensland. She maintained the submission that there was no reason why the children’s time with her needed to be supervised.

8. The point was made on the mother’s behalf that she has been caring for an infant since December 2015 without intervention by any Government authority. That Mr E is still in prison, at least until June, was also referred to. The most forceful submissions made on behalf of the mother related to the father and questions surrounding his drug use. It was submitted that the Court could not be satisfied that he is abstinent from drug use and that, therefore, ought to support a transition of the children back to the mother’s care.

9. The evidence was that despite urine testing carried out from late 2014 through to late 2015 that supported a finding that the father has been successful with his abstinence throughout that time, a hair follicle test undertaken by the father at the end of 2015 showed up traces of methyl amphetamine (ice), amphetamine, cocaine, and other drugs. The report said the sample of hair provided was from the father’s pubic area and that the time span within which the father must have consumed those drugs could not be confidently stated because of the differing rates at which such hair grows compared to head hair. Nevertheless, the father maintained his assertions of abstinence, relying on the doubt surrounding the period of time over which the hair sample had grown to assert that his abstinence assertion was not disproved. He had submitted to another hair follicle test just a few weeks ago in which a hair from his head was provided. The results of that test were not back at the time of the hearing, and are expected back within a few weeks.

10. Needless to say, if the Court is ultimately satisfied that the father has not maintained abstinence from such illicit drugs whilst the children are in his care, that will be problematic for the father’s credibility and his parenting position.

11. However, there was evidence before the Court adduced by the father from his mother and his father. He and the children still live with them. His father is a retired corrective services officer. His mother, the evidence, establishes, has the apparent confidence of the mother in the case. They both give evidence of seeing no signs of regression into drug use by their son. They depose to his care for the children and the assistance they provide him in this respect.

12. I have no reason to doubt that their presence in the life of the children at present is a positive for these children. I have no reason to doubt that as grandparents of these children they would be most unlikely to stand by and tolerate harm being done to these children. There is no evidence before me, or referred to by the mother, that causes me to conclude that the children have not been properly cared for in Sydney since they were ordered into the care of the father, living in the same home as the paternal grandparents.

13. In the absence of such evidence, I am not persuaded that it is in the interests of these two young children to order an immediate move back to their mother’s care in Queensland.

14. The mother has a new baby that she is caring for. She must cope with the pressure that imposes upon her, along with all of the other pressures in her life, so that her capacity to provide the proper care for that baby is not compromised. I will not make an interim order that puts the two other children back into her full-time care at this point such that might compromise that capacity. That is not in the best interests of any of the three children.

15. The issue that I consider this determination must focus on is the putting in place of arrangements that provide for the children to begin spending time with their mother on a regular basis as soon as possible, whilst at the same time they are not placed at any unacceptable risk of harm, emotional or physical.

16. Firstly though, I must deal with parental responsibility. The parents consented to an order conferring equal shared parental responsibility on each of them in 2014. Many orders have been made since. The parental responsibility order has not been discharged or varied. I was not asked by anyone to interfere with it. It was not submitted that the father should have sole parental responsibility whilst the children are in his principal care.

17. I intend to discharge all previous parenting orders. That is so I can make one set of interim parenting orders that remain in force until final orders are made, for ease of reference and convenience for these parties who have enough challenges in life and do not need to be faced with a half a dozen extant parenting orders to work out.

18. I will include equal shared parental responsibility in the parenting order I make, simply reflecting the existing agreed position, accepting, for the moment, that it is in the best interests of these children, despite having some concerns about the capacities of these two parents to negotiate parental responsibility decision making.

19. That said, I hasten to say that orders providing for the children to spend equal time or substantial and significant time (as defined in the Family Law Act) with the mother and the father are neither in their best interests nor reasonably practicable (as defined in the Family Law Act).

20. Having read the evidence relied upon by the parties, having heard their submissions and considered the matter, I am not persuaded that if the mother spends a short amount of time with the children in Sydney, including overnight, that she requires supervision whilst there.

21. Mr E is currently in prison, apparently until June at least. The children must not be exposed to him. As I informed the mother at the hearing, her prospects of getting the children back into her full-time care will, prima facie, be significantly impaired if she again enters into a relationship with Mr E on his release from prison. I will maintain the injunction against the children being brought into contact with Mr E. The mother’s prospects of being able to maintain compliance with that are maximised, in my judgment, if she has to travel to Sydney to spend time with them.

22. I will maintain the injunction against the mother drinking alcohol or taking drugs, or being under the influence of alcohol or drugs whilst the children are in her care. The mother’s prospects of being able to maintain compliance with that are maximised, in my judgment, if she has to travel to Sydney to spend time with them.

23. I consider providing for the mother to travel to Sydney to be with the children down there will provide circumstances where she can focus exclusively on her relationships with the three children and their relationships with each other in an environment that offers new experiences for all of them rather than the day to day normality of the mother’s home environment where she might be distracted by other personal relationships and the greater risk of slipping into habitual alcohol use or drug abuse.

24. The mother asserts that it will be difficult for her with an infant and without a car or a driver’s licence in Sydney. The flight will take an hour or so and I have no reason to believe that the mother and baby will not be able to comfortably tolerate that. Sydney airport has ready access to public transport, including the Sydney rail system. My orders will provide for the children to be delivered to the mother there by one or both paternal grandparents and collected from the mother there at the end of the time. That will make travel to and from the airport easier for the mother.

25. My orders will provide for one or both of the paternal grandparents to stay with the mother and the children for two hours on the first few visits just to assist the transitional process where the children have not seen their mother for some months. My orders will provide for the father to pay the cost of the mother’s flights and to give her $100 towards her expenses. He told the Court he could and would do that, on a fortnightly basis.

26. Having considered the matter further though, I will order that such visits take place only each third weekend during school term. The father’s income is limited. I do not want to risk total frustration of the orders I intend to make by him not being able to actually afford to make the payments for the flights and to the mother.

27. In the circumstances, as I have already observed, I am, on balance, satisfied that the time in Sydney need not be supervised, but for the first few hours of the first few visits and I will order accordingly.

28. I did observe some emotional lability, or at least lack of self-restraint, on the part of the mother on display in the Court room. Though legally represented and nursing her infant child whilst in Court, the mother could not restrain herself from speaking out loud, out of turn and in a somewhat negative sense about the father. She continued to do so after I pointed out to her from the bench that she ought not do this, as it did not assist her case. Of course, there is a question about her capacity to restrain herself from denigrating the father to the children on unsupervised visits. Such behaviour would not be good for the children.

29. Again, on balance, I am satisfied that the best interests of the children are served in a greater sense by providing them with some unsupervised time with their mother and baby brother in Sydney, than by restricting that time to limited supervision because the mother might say some negative things about the father. In any event, I will grant an injunction against the mother denigrating the father to the children. The mother must know that if she contravenes that and still denigrates the father to these children or otherwise causes them emotional harm, that this Court is likely to hear about that, either through the father, his parents or the family report writer and that could have serious impact upon her prospects of potentially having the children restored to her care or even her prospects of maintaining unsupervised time with the children in the longer term.

30. I will provide for holiday visits with the mother in Queensland. I do not consider that unreasonable to impose on the father and it is in the children’s best interests to continue the connection with in Queensland, where they used to live, particularly as they had been travelling back up there through 2015 until that stopped at the end of the year. The time will continue to be daytime only whilst in Queensland though. I am not persuaded to move to longer overnight periods just yet.

31. Most of the other orders I will make will amalgamate the balance of the parenting orders already made across a number of different orders such that the existing obligations of the parents are maintained. I am satisfied that is in the best interests of these children.

32. I make the orders set out at the commencement of these reasons, satisfied that they are proper and in the best interests of these children pending finalisation of this matter.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 April 2016.

Associate:

Date:  21 April 2016