Gleeson and Osborne - [2009] FMCAfam 894

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GLEESON & OSBORNE

[2009] FMCAfam 894

FAMILY LAW – Parenting – live with – father in Sydney and mother in Melbourne – father better able to promote the children having a meaningful relationship with their mother – mother is unable to promote the children having any relationship with the father – mother has placed own needs above the needs of the children – children to live with their father in Sydney and father to have sole parental responsibility.

Family Law Act 1975 (Cth), ss.60CC (2), (3) & (4)

Champness & Hanson [2009] FamCAFC 96
Marsden & Winch (No.3) [2007] FamCA 1364

Applicant:

MR GLEESON

Respondent:

MS OSBORNE

File Number:

PAC 2031 of 2007

Judgment of:

Henderson FM

Hearing dates:

27, 28 & 30 July 2009

Date of Last Submission:

30 July 2009

Delivered at:

Parramatta

Delivered on:

28 August 2009

REPRESENTATION

Counsel for the Applicant:

Mr Allen

Solicitors for the Applicant:

Bell Lawyers

Respondent:

In person

Advocate for the Independent Children’s Lawyer:

Ms Shea

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission of New South Wales

ORDERS

That all previous orders are discharged.
That the Father shall have sole parental responsibility for the children [X] born in 1996 and [Y] born in 1998.
That the children [X] born in 1996 and [Y] born in 1998 shall live with the Father.
That the children [X] and [Y] shall spend time with their Mother as follows:
(a)For the whole of the New South Wales Term 1, Term 2 and Term 3 holidays commencing the first Saturday after school ceases until the last Friday before school resumes.
(b)For half of the New South Wales Christmas School holidays as agreed or in the absence of agreement the first half in even years and the second half in odd years.
(c)For two weekends during New South Wales school terms to be exercised in the Sydney Metropolitan area at the Mother’s cost with the Mother to give the Father fourteen (14) days prior notice in writing of her intention to spend time with the children in accordance with this Order.
(d)Such further time as agreed between the parties.
(e)The parties shall pay half each the air fares for [X] and [Y] to spend time with their Mother in Melbourne for the school holidays and for this purpose the Father shall be responsible to book and pay for the children’s flight to Melbourne and the Mother shall be responsible to book and pay for the children’s’ return flight to Sydney.
(f)For the purpose of the previous Order, the Father shall give the Mother a minimum of 28 days notice in writing where practical of the flight details, including flight number and departure and arrival times and a copy of the paid ticket.
(g)For the purpose of the previous Order, prior to the children flying to Melbourne, the Mother shall give to the Father confirmed details in writing of flight and departure from Melbourne and arrival in Sydney times and in the absence of such notice the Father shall not send the children to Melbourne.
(h)Telephone time by mobile, landline or internet with the Mother on Tuesday and Thursday each week between 7.00pm and 8.00pm with the Mother to telephone the children.
When the children are in the care of the Mother, the Mother shall facilitate the Father telephoning or communicating by internet with the children on Tuesday and Thursday between 7.00pm and 8.00pm.
In the event that the children are with the Father on Christmas Day, then the Father shall ensure that the children telephone the Mother and in the event that the children are with the Mother on Christmas Day then the Mother shall ensure that the children telephone the Father on Christmas Day.
In the event that the Mother spends time with the children in Sydney, then where possible, she will collect the children from school on the Friday afternoon and return them to school on the Monday morning, or as otherwise agreed with the Father.
That the Father shall authorise the Principal of the schools attended by the children to forward direct to the Mother copies of all school reports, school notices and both parents are entitled to attend functions to which parents are invited at the school including parent/teacher interviews.
That the Mother is forthwith restrained from sending the children to counselling without the Father’s written consent, including but not limited to the Victims of Crime Organisation.
That both the Father and Mother shall be restrained from denigrating the other in front of or in the hearing of [X] and/or [Y] and the Father and Mother shall use their best endeavours to restrain any other person from denigrating either the Father or Mother in front of or within the hearing of [X] and/or [Y].
That the parties shall use electronic communication such as email to provide information to each other concerning the children’s needs including relating to health, diet and extra-curricular activities and the parties shall keep each other advised of their current email address and in the event of any change shall forthwith notify the other.
That both parties be and hereby are restrained from discussing any Court proceedings or issues relating to child support with the children; or from showing them any document filed or prepared in relation to these proceedings.
That each party is to notify the other as soon as possible, and in any event within four (4) hours, should either of the children be injured or require urgent medical attention or hospitalisation.
That in the event the mother relocates to the Sydney metropolitan Area or within a maximum of two (2) hour’s drive from the children’s residence then the children shall spend time with the mother as follows:-
(a)Each alternate weekend from after school Friday until the commencement of school the following Monday morning.
(b)For the first half of all school holidays in even years and for the second half of all school holidays in odd years.
(c)For the purpose of Order 14(b) school holidays commence after school on the last day of the school term and end on the morning of the first day of the new school term.
(d)Alternate weekend time is suspended during school holidays.
(e)Such further time as agreed between the parties.
(f)From 9.00am to 5.00pm on Mother’s Day.
(g)From 4.00pm Christmas Eve until 1pm Christmas Day in alternate years commencing 2010.
(h)From 1.00pm Christmas Day until 4pm Boxing Day in alternate years commencing 2009.
(i)Telephone time in accordance with Order 4 (h) and Order 5.
In the event the mother fails to exercise her time set out in the orders on one occasion without an excuse sufficient to the father, then the mother’s time with the children is suspended and will be as agreed between the parents.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 2031 of 2007

MR GLEESON

Applicant

And

MS OSBORNE

Respondent

REASONS FOR JUDGMENT

The matter of Gleeson and Osborne was a parenting application heard on 27, 28 and 30 July 2009.
Mr Allen of Counsel represented the applicant father, the respondent mother represented herself and Ms Shea appeared on behalf of the Independent Children’s Lawyer.
The Application concerned the parenting arrangements for the parties’ two children, [X] born in 1996 and [Y] born in 1998.
The children presently live with their father in Sydney pursuant to Orders made by consent on 5 September 2008. Those Orders came about because the mother had unilaterally moved the children’s residence from Sydney to Melbourne on 9 May 2008 without informing the father. The father brought an Application for a Recovery Order, Location Order and an Order that the children return to live in Sydney. This hearing is the consequence of that Application.
The mother was represented by experienced Counsel, Mr Dura, at the interim hearing.
The children were returned to their father’s care pursuant to a Recovery Order issued by Federal Magistrate Donald on 16 June 2008.
At the conclusion of this hearing the Independent Children’s Lawyer submitted a minute of Order that proposed the children remain living with their father, the father have sole parental responsibility for the children, the children spend time with their mother in Melbourne, the parties share the costs of that travel, and the mother spend time with the children in Sydney when she is able to travel. These are essentially the same Orders that the father seeks as Final Orders.
The mother’s application is that the children return to live with her in Melbourne, that she have sole parental responsibility for the children and that they spend time with their father in Sydney and Melbourne.

Evidence

The evidence is as follows:
For the father I read:
a)His Affidavits sworn and filed on 15 February 2008 and 14 July 2009;
b)Affidavit of his mother and father filed 20 July 2009.
For the mother I read:
a)Her Response filed 30 July 2008;
b)Her Affidavits filed on 29 July 2008, 29 August 2008 and 24 July 2009.

Exhibits

The Family Report of Mr Michael O’Sullivan, released on 24 June 2009, was marked Court Exhibit 1.
The Consent Orders dated 8 May 2008 were marked Court Exhibit 2.

Father’s Exhibits

The father tendered the following exhibits:
Father’s Exhibit 1: Letter dated 16 May 2005 sent to the boy’s school.
Father’s Exhibit 2: Paragraph 1 of the mother’s affidavit filed 21 April 2008 which states:
1. That the Affidavit and Professional Opinion of Ms S sworn on 27th March 2008 be discharged. I believe the report to be biased. [X] and [Y] state that nothing was read back to them and they were extremely distressed at the contents of the report and have stated that there are things contained in the report that they did not say. I mention only one glaring example (for brevity) and that is in relation to Child Support. Para 40 states ‘I don’t want any contact with Dad. He won’t stop asking questions and he barely pays child support. Mum said he barely pays it and it’s rare for him to pay child support When asked how he knew this he said cause Mum says its rare, he barely pays’. Firstly let me make it clear that 1. I do not go into details about child support payments with [X] and [Y]. Child support is only ever mentioned when [X] or [Y] ask question on returning from their fortnightly contact with the Respondent. 2. My comments re child support have always confirmed that the Respondent pays child support. 3.Furthermore the Respondent advises [X] and [Y] regularly that he has no money because I take all his money from him. 4. Child support is paid through the Child Support Agency and has been since 2002. Further more, this is not the manner in which [Y] speaks.
Father’s Exhibit 3: The Father’s Minute of Proposed Orders. At the end of the day these Orders concur, in great part, with those proposed by the Independent Children’s Lawyer.

Mother’s Exhibits

The mother tendered the following exhibits:
Mother’s Exhibit 1: An Interim Report from [J] High School where the child [X] attended for a short period of time when the mother unilaterally removed the children to Melbourne.
Mother’s Exhibit 2: Letter from the mother to Ms L, the Principal of [R] Primary School.
Mother’s Exhibit 3: Documents from [S] Primary School where both children attended, and where [Y] was attending prior to the mother’s unilateral move to Melbourne. [Y] is a bright child achieving reasonably high levels particularly in mathematics, English and core subjects.
Mother’s Exhibit 4: Documents from [R] High School which is [X]’s current school. [X] is in the highest band for numeracy, measurement data, space and geometry and the second highest band for number, patterns and algebra.
It would appear both children have some scholastic ability. Whether that will ever come to fruition having regard to their parent’s behaviour and scant regard for them during their life remains to be seen.
The mother has marked these documents with blue post it notes setting out that when she had the children living with her they did extra homework; she was regularly at the school etc.
The mother’s opinion is that the children’s school work has significantly deteriorated since they came into their father’s care in June 2008.
In the bundle of documents produced from [R] High School there are also documents provided to them from [S] School. This includes an email from the mother dated 17 October 2005 to the school in which she sets out in great detail her version of the history of the divorce and care arrangements for the children:
I am currently divorced and I have full residency of both [X] and [Y]. Back in May I suspended my ex-husband contact with the children due to the constant verbal harassing of myself and my family whilst [X] and [Y] are in his care. [X] is ADHD and is intolerant to wheat and [Y] is showing the same signs but has not yet been tested. Their father continues to feed them wheat even after being advised in writing by the paediatrician. When [X] has too much wheat this affects is behaviour which in turn then affects his learning abilities at school and they both become constipated.
Their father was having contact every second week. I advised him in writing that I was suspending is contact and advised him to take me back to court. I would initiate this but [Mr Gleeson] has a track record of not showing up and this is a very costly exercise. I have exhausted all avenues regarding the children’s rights and found that this was the only road that is currently open to me.
As [Mr Gleeson] continues to turn up at the school and endeavour to exercise his rights for his contact weekend. [X] and [Y] do not attend school on these Fridays. They spend the day with my Mother going over school work and other activities that they may not currently be doing at school.
The mother attached an email from her own mother setting out the work she had done with the children whilst home schooling them on these Fridays.
On 16 May 2005 the mother also sent to the school a copy of a letter she had sent to the father which is Father’s Exhibit 1.
The letter was completely inappropriate to send to the children’s school. It was full of personal details, vitriol and was only the mother’s version of events. It had nothing to do with the children’s schooling and everything to do with the mother’s war against the father.
The mother again wrote to the school on 19 May 2005 advising that the children would not be attending school on 20 May 2005 because she had suspended the father’s time with the children “due to the emotional abuse he continues to inflict on the boys”. She advised that the Police had attended her home the previous evening. She advised the school that she was aware the father would be at the school to attempt to collect the children.
The mother sent copies of letters sent by her former solicitors to the father, to the school. Thus the school was informed of the sad situation for these boys and made aware of the mother’s litany of complaints against the father since separation. There was nothing in these letters relating to the boys education. This was done for the mother’s benefit as she saw it.
The mother had complained that someone else, the children’s paternal grandmother, was collecting the boys from school in 2003 and she wanted this to stop. The school wrote to the father on 27 May 2003 stating that:
We are not able to allow the children to leave the school with anyone except you specifically, unless prior permission from [Ms Osborne] is given, either verbally or in writing.
The copy of the custody order we have been given clearly states that your sons are to be picked up by their father. It does not allow for any other nominated person. The school in this case must follow the wording of the custody order.
The school records are a litany of complaints and difficulties that the mother has caused for her children, the father and the Principals of the children’s schools.
Mother’s Exhibit 5: Book written by [Y] in his handwriting. Again there are a litany of complaints about the father written by [Y]:
Dada said he will fix mum …
Dad yell at us for telling mummy whot we have to eat and drink at his place.
Dad said tell me the truth and all the truth do you like Mr G
Mr G is a person that the mother has shared a home with for six years but she is not, on her evidence, in a relationship with him at any level. He took no part in this hearing. Further complaints in the book included:
Dad shaved all our hair and we didn’t want him to.
Dad said that I am not going on the cruise because he will keep me. Dad said that we better hide because he will burn down our house, kick the down. And he will bring his mate and take us away. And he said that all weekend. And I am scared.
It is not clear when all these entries were written. It was a document the mother wanted me to read.

Independent Children’s Lawyer’s Exhibits

The Independent Children’s Lawyer tendered the following exhibits:
Independent Children’s Lawyer Exhibit 1: Letters by Dr B, a Consultant Paediatrician at [P], dated 23 December 2005 and

19 September 2009. The letter of 23 December 2005 states:
…I have been the treating paediatrician for [Y] and [X] since each child was an infant. Both children have difficulties with attention deficit disorder however [X] is the most severely affected. Over the past five years I have consulted each child on at least fifteen occasions regarding their behavioural difficulties.
Fortunately the children have not required medication to help manage their behaviour, however dietary manipulation has been important in their ongoing management. Both children have sensitivity to wheat products which aggravate their behaviour and cause difficulty with concentration. For optimal health the boys should be on an essentially wheat free diet. Additionally avoidance of caramel flavouring should also occur as this can also cause a deterioration in their behaviour and concentration.
Independent Children’s Lawyer Exhibit 2: Report prepared by the Brain and Behaviour Centre in relation to the child [X] dated

4 November 2003. The clinician reports that:
…[X] continues to retain a positive relationship with his father, seeing him every second weekend and possibly also during the holidays.
…Both his parents and his teacher feel that [X]’s potential is far greater than what he is manifesting at school.
Independent Children’s Lawyer Exhibit 3: Independent Children’s Lawyer Minute of Proposed Orders.

Short Chronology

The father is 43 years of age and the mother is 40 years of age.
The parties commenced their relationship in 1987 and were married in 1994.
[X] was born in 1996 and [Y] was born in 1998.
The parties separated in 2001.
The father did not take separation well. He was admitted to [M] Hospital after taking an overdose of sleeping pills on 18 December 2001. He was discharged the following day. The children were in the care of their mother at this time.
On 7 February 2002 Final Orders were made by consent for the children to live with the mother, the parents share parental responsibility, the children have contact with the father each alternate weekend, during holidays and on special occasions as well as telephone contact.
On 19 March 2002 an Apprehended Violence Order (AVO) was made at [P] Local Court naming the mother as the protected person and the father as the defendant. The father was ordered not to assault, molest, harass, threaten or interfere with the mother; or approach, contact or telephone except for the purposes of Family Court Orders.
The parties were divorced on 8 March 2003.
The AVO made on 19 March 2002 was extended for a further two years on 18 March 2003.
On 3 March 2005 the father scratched the door of the mother’s car and was subsequently charged and convicted of contravening the AVO and destroy/damage property. He was sentenced to a bond and fined.

That event seems to be the commencement of the deterioration in the parent’s relationship.
From March 2005 until December 2005, a period of nine months, the children spent no time with their father.
On 22 March 2005 a further final AVO is made at [P] Local Court for two years naming the mother as the protected person and the father as the defendant. That came about as a result of the contravention of the previous AVO. The father was ordered not to go within 100 metres of the residence or workplace; not to assault, molest, harass, threaten or interfere with the mother; approach, contact or telephone except for the purposes of Family Court Orders; and not to destroy or deliberately damage or interfere with property.
On 31 October 2005 the father filed a Contravention Application.
Orders were made by Federal Magistrate Sexton on 9 December 2005 finding that the mother breached the Orders of 7 February 2002 without reasonable excuse. The mother told the Court on that occasion, and it was noted by the Federal Magistrate, that she proposed to comply with the Orders of 7 February 2002 forthwith being that the children were to spend make up time with their father:
a)from the conclusion of school on 9 December 2005 to the following Monday;
b)
from the conclusion of school on 21 December 2005 to 5pm on 24 December 2005; and then 1pm Christmas Day to 5pm

27 January 2006; and
c)contact on each non-contact weekend from beginning of Term 1 2006 from after school Friday to before school Monday until the end of March 2006.
The Orders were further varied so that:
a)the children’s time with the father continued through to the commencement of school Monday so that changeover could occur at the children’s school;
b)if changeover was not to occur at school then it was to occur at [P] Police Station;
c)the father or his nominee may collect or return the children;
d)the mother was to keep the father informed of medical appointments and the like; and
e)it was noted that the father was to take the children to Karate on a Friday evening.
On 12 April 2007 the mother filed a Contravention Application alleging that the father had not taken the children to Karate on 24 dates between 9 December 2005 and 23 March 2007.
In May 2007 the mother applied to the Victims Compensation Tribunal for counselling for the children.
On 18 July 2007 the mother made an Application to the Court for the children to attend a family wedding on 24 August 2007, a passport to issue for each of the children so that they could attend a cruise from

5 April 2008 and other matters including that the father was not to attend the children’s maternal grandmother’s home.
The matter came before me on 24 August 2007 in relation to that Application. I suspended the father’s time with the children so that the children could attend the wedding and I permitted the mother to obtain passports for the children and travel with them as she had sought in her Application.
The mother amended the travel dates and filed a further Application on 29 August 2007.
There is an allegation that the father threatened the mother via the children on 14 December 2007 by saying words to the effect:
If you are not at school on Friday your mother better go into hiding because I’ll be around with some mates and I’ll kick down the door and I’ll be taking you with me.
That allegation is set out in an Application by the mother for an AVO as annexed to the father’s affidavit sworn 14 July 2009.
From 14 December 2007 until 17 June 2008, a period of six months, the children spent no time with their father.
The mother filed another Amended Application on 19 December 2007 seeking that “all physical contact cease”, reducing telephone contact and requesting an Independent Children’s Lawyer be appointed for the children. The mother also filed a Notice of Child Abuse/Family Violence at this time.
An Interim AVO was made at the [P] Local Court on 15 January 2008 as a consequence of the alleged words said to the children about kicking the mother’s door down.
On 15 February 2008 I made an Order appointing an Independent Children’s Lawyer and listing the matter for Interim Hearing on

14 March 2008.
The mother’s Application for an AVO was heard and dismissed on

3 March 2008.
Ms S, Social Worker with the Legal Aid Commission, prepared a “wishes report” for the children dated 26 March 2008. This was Annexure D to the father’s affidavit sworn 14 July 2009.
On 15 April 2008 the mother makes an application to the Victims Compensation Tribunal for compensation for the children.
On 8 May 2008 the matter came before the Court and Federal Magistrate Orchiston makes Orders by consent. These Orders included Orders that:
a)The mother and father have equal shared parental responsibility for the children;
b)The children live with the mother;
c)The children spend time with their father each alternate week, half school holidays, special occasions and the like;
d)Telephone communication;
e)Changeover occur at school or [P] Police Station;
f)Restraining the mother from attending the children’s schools on any day that they are due to spend time with their father;
g)Restraining the mother from sending the children to the Victims of Crime Organisation for counselling;
h)Injuncting both parties from discussing the proceedings with the children.
The following day on 9 May 2008 the mother relocated to Melbourne with the children without the father’s knowledge let alone his consent.
The father, after frantically searching for his children for two weeks, files an Application on 23 May 2008 seeking an Order that the children be returned to Sydney and live with him if the mother will not return. Federal Magistrate Donald made those Orders on an interim basis on 16 June 2008.
The children commenced to live with their father on 17 June 2008 and have lived with him since. The mother continues to live in Melbourne.
[Y] commenced attending [R] Primary School on 19 June 2008 and [X] commenced attending [R] High School on 23 June 2008.
By the Orders made on 5 September 2008 the mother was required to have a supervisor in Order to spend time with the children. That person was the children’s maternal aunt, Ms O.
Since the children returned to their father’s care on 17 June 2008, it now being late July 2009 and thus over 13 months, the mother has spent 12 days with her children in Sydney.
Mr Michael O’Sullivan, family consultant, prepared a family report which was marked Court Exhibit 1. Mr O’Sullivan stated that having regarded to the small amount of time the mother spent with the children, an issue for the Court will be the mother’s commitment to the children.
Suffice to say that these parents have an atrocious relationship. They have spent much energy and time, particularly the mother, since separation focusing on their dispute, their own needs and themselves. In reality little emotional input has been given to the children by either parent as was observed by Mr O’Sullivan. Insufficient parental time or attention has been focused on the children during their lives.
This will come as quite a shock to the mother as she believes she is an excellent parent who has always done everything in the best interests of her children.
However, it is fairly clear from the family report that the children are emotionally detached from both parents.

Family Report

When Mr O’Sullivan interviewed the children he reported at paragraph 19:
[X] stated ‘I would like somewhere different to live than up here. I’m sick of Sydney and eventually will get sick of Melbourne. If Dad moved to Perth, probably Aunty G will live over there or we moved to Adelaide for somewhere else to live. I could live with any relatives, anyone, I don’t care even in Tasmania. I could live with Mum in Sydney. I would do it but it would be boring. I could live with Dad in Melbourne and would do it for I have lots of friends there’. [X] added ‘The most important thing about where I live and who I live with is not getting bored over and over again. I don’t have any particular choice but first I would like to live with [Y], second with Mum and third with Dad’.
[X] noted that his mother took him to Melbourne and she should not have but she did not want to live in Sydney because his father knew where she lived, had been abusing her and had scratched her car at night. He believed that he had to live with his father as his mother had taken him and [Y] to Melbourne. [X] stressed ‘I like it with Mum, because we have freedom to go over to friend’s houses whenever we want. I don’t like it with Dad because we are not allowed to friend’s places. Dad is not home very often and Nan and Pop are there and he does not allow us to go out at all. There is very little opportunity for me to do anything and be able to be with my friends and cousins and I’m sad about that’.
[X] reported that he ‘was happier living with Mum because I can get out of the house and go to the park whenever I want but with Dad I’m not allowed to go very often’.
[Y] reported at paragraph 23:
[Y] recalled that he and his brother lived with their mother in Melbourne for about one month and ‘found it better than Sydney and we found a friend in the park and Mum let us visit whenever and we would ride around. There are better park areas and lots of stuff to do and quieter than Sydney. I like it with Mum and we have a lot more freedom like we are allowed to ride around to our friend’s house, go exploring the neighbourhood and finding out things and go to the two parks with our friend’. He advised that in Melbourne he has a television in his room and has a computer and play station at both his parent’s places and both his mother and father have bought him games and his father has racing and shooting games. He indicated he likes it at his father’s house as he has a lot more games to play and he sees his cousins about once a week. He noted what he did not like at his father’s house was having to share a room with his brother and misses his previous four bedroom house.
It transpired at the hearing that is not the home the mother is living in at present. She and Mr G moved from that original home to a three bedroom home. Thus [Y] cannot have his wish and go back to the four bedroom home Mr G had rented and that [Y], his mother and brother lived in Melbourne.
[Y] expressed a desire to live with [X]:
…I never really talk to Mr G (Ms Osborne’s partner) only if we need money for our MP3. I would prefer to live with Mum as we have more freedom with Mum and she lets us do what we want and she does not care what we do. Dad is always telling us not to play our DS and play station during the day and tells us to go outside and play. But Mum says whatever, and we tell her we are going out’.
The observation of the father and the children was good:
…[Y] appeared to gain more of his father’s attention while [X] was more involved in solitary play.
That may be a reasonable outcome for boys of this differing age.
Mr O’Sullivan observed:
…Mr Gleeson displayed an ability to respond to and encourage both boys and at times set limits particularly on [Y]’s boisterous behaviour. [X] and [Y] appeared to relate and engage with their father positively and Mr Gleeson appeared to interact appropriately with both boys.
The boys with their mother were much more physical:
…Both boys engaged more physically in throwing balls at each other and Ms Osborne told them not to throw and intervened and took [X] to sit with her on the lounge. Ms Osborne displayed an ability to verbally and physically set appropriate limits and talked to both boys about their behaviour. [X] and [Y] did not respond to realistic questions from their mother and became more attention seeking or bored with activities…It was observed that Ms Osborne did not physically engage in activities with the two boys and sat and talked with them but demonstrated responsible intervention and limit setting with the children’s provocative behaviour.
Mr O’Sullivan confirmed in cross examination that [X] and [Y] have the strongest attachment to each other, not their parents. This is all the more surprising since they have lived all their lives with their mother, save for the last thirteen months. It may not be as surprising with the father as there were significant periods of time, one approaching six months and the other nine months, where he had no time with the boys due to the actions of the mother and his failure to take quick remedial action.
It is most surprising the lack of attachment these boys show to their mother given she has been their primary carer for all their lives.
Mr O’Sullivan says at paragraph 29 of his report:
…[X] made very curious comments about his adaptability to live with other relatives in other cities and the main criteria that he was not bored. It was a concern that [X] expressed these issues and more of a concern if in fact it was his perception or his reality. It is noted that both boy’s assessments of the best living options were self centred and self absorbed which is not unusual for children of their age and experience. However[X]’s emotionally detached comments might reflect other issues for him and/or his relationship with his parents.
This was fleshed out at the hearing. Mr O’Sullivan said that:
the parents have been so involved in their own dispute that their children have not been able to securely and emotionally attach to them.
This is all the more concerning when the mother has been their primary carer. The father has had real, physical separation from his children when they were much younger. The mother’s separation was only in the last 12 months when the boys were older and due to her inaction in taking up time available to her.
Mr O’Sullivan reported at paragraph 31:
Mr Gleeson appeared to respond to both boys in a positive and age appropriate manner and was able to encourage some play and set limits on inappropriate behaviour. He also engaged in activities with both boys especially the drawing on the whiteboard that held both boy’s interest. Ms Osborne had a more difficult task as the boys were more boisterous or ‘bored’ by the time they met her but were affectionate to her and she managed to settle them with her on the lounge. She demonstrated an ability to set limits but did not engage in play with them and her language at times did not appear to resonate with two active boys.
Mr O’Sullivan commented that the father needed to be more physically available for the boys and spend more time with them than he does. He should minimise the times he leaves them with his parents although I accept he has a difficult work roster [in the Transport Industry].
Mr O’Sullivan made a very telling comment at paragraph 32:
…Both [X] and [Y] did not express any concern for their safety or welfare with either parent and it appeared that they did not expect or receive any significant engagement with either parent. This reported limited interaction between the parents and the children could be a result of relational/family history, the parent’s involvement and availability or the children’s perception of their parent/child relationship.
After the hearing it is clear that the mother is totally absorbed in her vendetta to eradicate the father from the children’s lives and that the father has been somewhat passive in answering this charge in the past. What is obvious is the boys have missed out on being the centre of their parent’s attention.
The mother has been totally focused on herself and her dispute with the father. The letters to the children’s school since 2003 are testament to that.
The father has let the mother disrupt his attachment with the boys on at least two significant occasions, being nine months in 2005 and six months in 2006, at a crucial time for their development.
Mr O’Sullivan recommended that sole parental responsibility be given to the parent with whom the children reside due to the acrimonious, long-standing dispute between the parents and that he had already observed the impact of that dispute on the boy’s attachments to each parent:
…The reported time the children had spent with Ms Osborne over that period [the time the children were living with their father] is only twelve days and that raises issues about motivation, Ms Osborne’s relationship with the children or her reluctance to negotiate with Mr Gleeson. Ms Osborne stressed that both boys’ health and education needs are neglected with their father. Mr Gleeson has advised that he is open to the children spending time with their mother and would try and facilitate further times than is ordered.
Mr O’Sullivan concluded at paragraph 35:
It is a concern that the litigation, conflict and both parents’ capacity to provide for the developmental needs of the children would indicate limitations for the children with either parent. Given the recent history, the children’s need and the parental abilities it is still questioned which parent would provide the best possible long term care.
Mr O’Sullivan was clear the mother should spend more time with the children.
It is clear that the boys have expressed to Mr O’Sullivan a wish to live with their mother and they expressed a similar wish in the wishes report of Ms S prepared on 26 March 2008.
The mother’s case was largely based on the wishes of the children expressed by both report writers and her belief that the father was neglecting the children’s education and health and that the father had been abusive to her and the children in the past. The mother asserts the abuse was so extreme that she is able to pursue a claim for victim’s compensation for her sons.
In cross examination I asked Mr O’Sullivan whether it would be feasible for me to draw the conclusion that the mother spent so little time with the boys in the last twelve months because:
a)She knew that would cause them distress;
b)This distress may result in a lesser performance at school and difficult behaviour; and
c)She believed this would assist her case.
Mr O’Sullivan said it was quite proper for me to draw an inference that the mother deliberately chose not to see the children so that their wish to live with her would be stronger due to them missing her and that wishes were a large part of the mother’s case.
In cross examination the mother’s excuse or reason for not attending Sydney to spend time with the children were:
a)She had just started a new job;
b)The cost;
c)It was difficult to arrange suitable time for Ms O to be available to supervise the time with the children; and
d)The twelve days were the only times she could spend with the children.
I reject that evidence from the mother. She had been represented by solicitors up until the final hearing. She was well able to ask for the Orders she consented to on 5 September 2008 requiring supervision to be discharged or varied. She did not. She made no complaint in her affidavits or by letter or in any way that Ms O was making it difficult for her to spend time with the boys. This only came out in cross examination. I find that is nothing but an excuse for her poor behaviour and lack of effort in physically seeing her sons in the last 13 months.
When the mother came to Sydney in the Christmas 2008 / New Year 2009 period she had 22 days to spend with the children from

26 December 2008 to 15 January 2009. The mother cut the visit short to 8 days only. The mother said her reason for so doing were that she was ill, the boys were upset and she was upset because they wanted to come home and live with her. Yet the mother managed to go to Parkes with Mr G, the friend she lives with, on the way back to Melbourne.
The father was called on 2 January 2009 by Ms O, the supervisor, and asked to come and collect the children because the mother had left early. I found this most distressing evidence as it would clearly have had a negative and sustained impact upon these boys’ emotional health and sense of worth.

The father reported that when the children speak to the mother on the telephone it is for two or three minutes and then the mother hangs up. He says the children want to speak for longer but the mother does not seem to want to.
I am most concerned that the mother has, consistent with her prior history, placed her need to win this war against the father, because it is a war for her, over the needs of the children to maintain their important relationship with her, their mother and primary carer. To achieve her end she ensured she did not see the children in any meaningful way for 13 months so that they would miss her, their behaviour and perhaps their school work would deteriorate as she believed this would help her case.
That finding is well open to me on the evidence for the following:
(1)The mother is not a witness of truth.
(2)The mother has lived with a man called Mr G for six years in both Sydney and Melbourne. The mother’s case is that they do not have a sexual relationship, that they are just friends and share a home. However, Mr G went to Melbourne in about February 2008 and the mother followed in May 2008.
(3)The mother tells the Court nothing about him.
(4)The mother asks the Court to accept that she has lived with this man for six years, shared a bedroom with him but not a bed according to her evidence, yet he is neither a person significantly involved in the care of the children, nor someone who should have come to Court to give evidence.
(5)
The mother makes no reference at all to him in any of her three affidavits filed, nor does she make reference to him with

Mr O’Sullivan or Ms S.
(6)The only reference to Mr G is from the children themselves and the fact that the father knows this is a man who lives with them.
Thus the mother kept from the Court and the father any details of a person who on any stretch of the imagination has had to have been involved in the care of these children as he has lived with them for six years. The mother cannot escape the fact that the timing is she left for Melbourne to follow Mr G where he had gone for a job.
The mother’s affidavits are nothing but a litany of complaints of the father’s poor behaviour towards her, his violence perpetrated against her in front of the boys, his denigration of her in front of the boys, his denigration and poor behaviour to the boys in her presence, raising issues of child support, not correctly following their diet, not being interested in their education and the like.
The mother says she has been pressured and bullied to enter into Consent Orders in February 2005 and on 8 May 2008; and that she has lodged a claim for the boys with the victims of crime service NSW for compensation for the effects of psychological or emotional harm perpetrated against them by their father between 16 October 2001 and 18 May 2008.
The difficulty for the mother is that during this period of time, when she was legally represented, she entered into two separate sets of Consent Orders.
On 7 February 2002 Final Orders were made by consent. The mother was represented.
From March 2005 to December 2005 the children spent no time with their father at all. The father damaged her car in March 2005. That was very poor behaviour by him. He has acknowledged this poor behaviour in his affidavits.
On 9 December 2005 Final Orders are made by consent before Federal Magistrate Sexton following a Contravention Application brought by the father. The mother was legally represented at that time.
In December 2007 the mother filed an Application seeking Orders that the father spend no face to face time with the children. That is the mother’s position today and has, in reality, been the mother’s position for some time.
The children spent no time with their father from December 2007 to June 2008 for no good reason.
On 8 May 2008 the mother was unrepresented and she again entered into another set of Final Consent Orders providing for the children to spend time with their father.
It was clear from Ms S’s report which was part of the evidence before the Court at that time that despite the litany of complaints by the mother, and the litany of complaints from the boys about their dad, the boys must spend time with their father, want to spend time with their father and would benefit from a relationship with their father.
Commencing at paragraph 46 of Ms S’s report states:
Both children were initially expressing a wish not to have contact with their father. However, as the interviews progressed and the issues were explored fully, it became clear that both children were resistant to contact with their father more so as a result of his behaviour towards them, such as the continual questioning, in addition to the comments he made about their mother.
Neither child expressed a fear of their father at any stage throughout the interview process. [X] appeared more bemused and frustrated with his father’s behaviour…
It is my professional opinion that both children should have contact with their father. It is clear that the comments he makes, as expressed by the children, are inappropriate and this issue needs to be addressed. However the children express no fear of him and recount positive interaction.
I accept Mr Gleeson has taken on board that he needs to ameliorate his comments. There is not much complaint in Mr O’Sullivan’s report prepared almost 12 months later of the father questioning and commenting poorly about the mother to his sons. In fact there is no complaint at all from the boys in that regard.
Ms S’s report continued at paragraph 49:
In addition to this, according to the children, their father facilitates all contact with the paternal side of the family. The children appear to have a very positive relationship with these members of the family, and it would be a significant loss for them should this contact cease.
The positive relationship for the children with their paternal family comes through in Mr O’Sullivan’s report as well when the children talk of enjoying the time they spend with their cousins.
Mr O’Sullivan reports the children said they were dissatisfied with their father’s rules. That is just a difference in parenting techniques as Mr O’Sullivan explained in cross examination. The father is stricter and does place more limitations on the boys’ behaviour. That is not a bad thing. It is merely a difference in parenting techniques.
The father is better at defining boundaries for his children and that may, in this day and age, be a positive parenting technique that the mother does not have.
Ms S said both the mother and father discussed matters concerning these proceedings with the boys inappropriately and that the boys are:
… patently aware of their mother’s views with regard to them having contact with their father, in that she wishes contact to cease.
The mother’s views were also supported by the maternal grandmother by whom they were being home schooled every second Friday when their father should have been spending time with them. The mother took the children out of school so that the father could not collect them.
Ms S also reports that the children:
…were able to express their mother’s opinion in relation to the adequacy of child support received by their father.
Faced with this evidence the mother entered into Consent Orders on

8 May 2008 and on the very next day left with the boys for Melbourne to live in a four bedroom house that Mr G, a single man, had rented in about January / February 2008. The mother says to me Mr G did not rent the house with a mind to her and the boys joining him in Melbourne it was just fortuitous he did so. I do not accept that evidence.
From her cross examination in this hearing it is apparent that at 8 May 2008 when the mother entered into Consent Orders she had no intention to abide by the Orders. She left for Melbourne the next day. This was put to the mother.
The mother feigned ignorance in the witness box and said she could not remember what happened that day as she was so stressed. Yet she was not so stressed that she did not ensure that in those Orders was an obligation on the father take the children to Karate. Further she was not so stressed that she did not realise the Orders meant that the father was to spend time with the children on the very next weekend. The mother then said:
I was always going to comply with the Orders. It was never my intention to leave. But when I went home and realised what had happened and how upset the boys were and I was, I fled in fear of my safety.
The mother puts to me that she is the most capable, competent and better parent for these children. Yet she asks me to accept that 24 hours after entering into Consent Orders she flees to Melbourne in fear for her safety and the boy’s safety.
The mother is not a witness of truth.
I have formed the view that, consistent with the mother entering into Consent Orders before Federal Magistrate Sexton on 16 December 2005, before Federal Magistrate Orchiston on 8 May 2008 and her conduct in March 2005 to December 2005 and again from

14 December 2007 to 17 June 2008 that she has never had any intention to ensure her children spent time with their father. She has for many years conducted a war against the father to achieve her desire that the children spend no time with him.
Yet she says to me at this hearing that if I allow her to remove the children to Melbourne that she will now ensure they spend time with their father.
The mother was asked by Mr Allen for the father:
What has changed?
Why would her position expressed in her affidavits and expressed by her conduct since at least March 2005 now change? Why now does she ask me to accept that she believes it is appropriate for these boys to spend time with their father?
The mother said it was because she has had counselling since about February 2009 and that has helped her see that the boys need to have a relationship with their father.
The mother made no mention of this counselling in her affidavit. She made no mention of this counselling to Mr O’Sullivan. She brought no letter, document, or report from this counsellor she says she has seen.
I reject her evidence.
The mother’s plan which she has used before was to put a proposal to the Court that she knew would have a chance of being accepted as it provided for the boys to live with her and spend most of the school holidays with their father in Sydney and for the father to see the children whenever he was able to come to Melbourne. The mother did this because she knew that those Orders are, at face value, very similar to the Consent Orders she agreed to on 8 May 2008 save for where the boys live.
I find, consistent with the mother’s behaviour after the Orders of

16 December 2005 and 8 May 2008, she still has no intention to comply with any Order that provides for her sons to spend time with their father.
If I acceded to the mother’s request for the children to move to Melbourne, the week after the Orders were made I would have a further Contravention Application filed by the father because he would not be able to contact or communicate with the children, let alone spend any time with them.
The mother is so imbued with her dislike and almost hatred of the father that she will say and do anything in order to achieve her end. That includes putting her own children’s emotional and psychological health at significant risk as is shown by her appalling behaviour in failing to spend time with them other than a paltry twelve days in the last thirteen months.
The mother knew the damage that would do to her children. She knew the consequences for the children may have been poor behaviour in their father’s care, lack of focus in school work and real hurt. The mother wanted them to express to the family consultant at the family report interviews how much they miss their mother and that they wanted to live with her.
I find the mother has engaged in a course of conduct to achieve her end and she has had no regard for who she injures along the way including her own children.
I am not satisfied that the father does not understand the children’s allergies to wheat. They do not have coeliac disease. It is an allergy and a mild allergy at best. [X] is 13 years of age, he is not the child he was when seen in 2003.
The father is managing their school work and their nutrition well. He must spend more time with his children. I am satisfied that by the father’s answers in cross examination he realised he has been somewhat passive with the mother in the past. The children missed him in the thirteen months when they did not see him and there was no good reason at all for them not seeing him. This is something the father should be ashamed of.
I asked Mr O’Sullivan whether the balance for me was that the children should live with the parent where there was the most favourable outcome for them having a relationship with both parents.
Mr O’Sullivan agreed that it was ultimately, in this case, the best outcome.
Neither child has an attached relationship with either of their parents. There is real difficulty with each of the children’s attachment to each of their parents. Neither of the parents has fostered a meaningful relationship with the children.
The parents have failed their duty to their children under section 60CC(4) of the Act.
The father is the only parent who can set boundaries for the children and he sees the benefit of doing so. Both boys described having absolute freedom in their mother’s home.
The father is the only parent who has any capacity to ensure that the boys have a relationship not only with him, but also with their mother. I am satisfied from the observations of him by Mr O’Sullivan, the father’s affidavit evidence and cross examination that he does want the boys to spend time with their mother. This is not an issue for him. He knows it is important and this is what he wants. It is the mother who has chosen not to take up that offer for her own warped reasons.
This is a matter where sole parental responsibility will be given to one parent or the other. It is contended for by the Independent Children’s Lawyer and certainly favoured by the family consultant. Having so found, I do not need to consider equal time or substantial and significant time, but make an Order in the children’s best interests.
The mother made it clear she will continue to live in Melbourne, she will not be returning to Sydney. She said she is in fear for her life. She says the constant harassment and appalling behaviour of the father makes her fearful. She may consider living in a country town two hours from Sydney but that was all. That is a matter for the mother.
The father will not consider moving to Melbourne.

The Law

Primary considerations

Any Order I make can only be an Order in the children’s best interests. In order to make such a decision I must have regard to the relevant factors under sections 60CC(2),(3) and (4) of the Family Law Act having regard to the various options the parties have put forward.
The options are:
(1)that the children remain in Sydney with their father, the mother remains in Melbourne and the arrangements I put in place for the children to spend time with their mother in Melbourne and Sydney;
(2)the children live with their mother in Melbourne, the father remains in Sydney and the arrangements I put in place for the children to spend time with their father in Melbourne and Sydney;
(3)the mother returns to live in NSW within a two hour distance from the father’s home, the children live with the father and the arrangements I put in place for the children to spend time with their mother;
(4)the father will not relocate to Melbourne no matter what Order I make;
(5)the mother will not return to Sydney no matter what Order I make but would consider living in a country town some two hours from Sydney.
Section 60CC(2)(a) is as follows:
The benefit to the child of having a meaningful relationship with both of the child's parents.
The only way these children can maintain a relationship with their father is if they live with him. The only possibility for the children to maintain a relationship with their mother and father is if they live with their father.
If they live with their mother they will only have a relationship with her. The mother is hell bent on ensuring that the father is excised from these children’s lives. Her intention has been made abundantly clear to me from her conduct in the past and which I believe will continue in the future.
Section 60CC(2)(b) is as follows:
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It was extremely distressing to hear the mother lie to the Court and attempt to justify her actions. I do not find these children are at risk of being physically harmed in either parents care but they have been emotionally and psychosocially harmed by each parent hence their lack of a secure attached relationship to either parent.
I am unsure of the mother’s friend Mr G, as he was not cross examined nor involved in the Family Report interviews. There is some evidence from the father that the boys had complained to him some years ago that Mr G had been physically chastising them. He says he sent a message home to the mother via the boys to the effect “Tell your mother, Mr G is to leave you alone or I will deal with it”. Since that time the boys have not complained about Mr G. The Court does not know and neither does the father.

Additional considerations

Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views. I cannot rely on these children’s wishes. These children are pining for their mother and are missing her desperately. Her actions resulting in her spending only twelve days with them in thirteen months and cutting short a twenty-two day visit to eight days at Christmas would clearly have affected the children’s emotional health and distorted their wishes. I am distressed at hearing of the mother’s conduct. I can only imagine the level of hurt these boys must have felt and no doubt still feel.
The nature of the relationship of the child with each of the child's parents; and other persons (including any grandparent or other relative of the child). The relationship between the children and their father is appropriate. The father is able to set boundaries and limitations. The father can engage with the boys, though he must spend more time with them as they report enjoying activities they do engage in with their dad. He has to give the boys more of his time and his attention so that their attachment to him can become what it should be.
The mother’s relationship with the boys is far more lax. She is unable to contain the boys as well as the father. They are boisterous with her and despite having lived with her all their lives and for months at a time solely with her they have a detached relationship with her.
I do not know what their relationship with Mr G is.
It is clear that the maternal grandmother is so aligned with the mother that their relationship with her is a problem.
The children have a very supportive and important relationship with their paternal family. That will be maintained by them remaining in Sydney.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living. These boys must live together. In fact their closest personal attachment is each other and for their adult attachment possibly their Aunt [Ms O].
If they move to Melbourne, their relationship with their father will be severed, their relationship with their Aunt [Ms O] severed and their relationship with their extended paternal family severed.

They will be left be living alone with their mother and Mr G, of whom we know nothing. They will be isolated and cut off from the very people in their life who have given them comfort, particularly in the last twelve months, when they have not lived with their mother for the first time in their lives nor seen her in any meaningful way.
The children remaining in their fathers care will continue a care arrangement that has been in place for thirteen months and which, although not perfect, is adequate.
Remaining in Sydney will continue their important secondary relationship with their paternal family which has comforted them in the last thirteen months.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis. Whichever decision I make the children will need to travel on a plane. That is expensive. However, they are of an age where they can travel unaccompanied. Both parents are able to travel by plane. The mother asserted in cross examination she had recently discovered a fear of flying. I reject that evidence. It was a recent invention and part of a plan the mother thought would help her case.
This is something the parents have the capacity to do. Both are working and have an income that is sufficient to support travel by plane or by driving.
The capacity of each of the child's parents; and any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs. Both these parents have a limited capacity to promote the emotional needs of these children. The mother has a demonstrated higher capacity to promote the children’s educational needs over the father. However, he has only been given that opportunity in the last 13 months. The boys are bright and have done well at school.
The mother is very much into their health. I do not see that this is of such significance or that the father is not managing that well.
The boys are doing as well as can be expected from boys who are living away from their primary carer and whose primary carer has failed to exercise the time provided for her to spend with them.
The father is showing signs that he can, and from Mr O’Sullivan’s report has the capacity, to set proper boundaries for the children, engage physically one on one with the boys and together, and hold their attention. The mother has this to lesser degree than that of the father.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents and section 60CC(4). In my view the mother shows scant regard for her responsibilities as a parent. Her focus is to ensure the father spends no face to face time with the children, no matter the cost. That cost has been at the emotional health of her children. They have a detached relationship with her and their father.
The mother made sure they did not see her for thirteen months in any meaningful way as part of her campaign against the father. The mother will manipulate any situation to achieve her end. She has entered into at least two sets of Consent Orders, one in 2005 when she was legally represented and the second in May 2008 when she was unrepresented, with little or no intention to comply. The boys did not see their father for 6 months after the 2005 Orders and the mother fled with the children to Melbourne the day after the 2008 Orders.
The mother has no capacity whatsoever to see anything from the children’s point of view. Life is, for the mother, as she sees it.
The father has some capacity to see matters from the needs of the boys. Although he has a somewhat detached relationship with the boys at present that is understandable given the difficulties he has had in spending continued time with them.
The boys’ lack of an attached relationship with their mother when they have always lived with her is only explicable if her focus has been on her needs and not their needs.
Both parents are responsible in terms of the children’s education and health.
I find these children have been exposed to very little family violence, if any, at their father’s hands. They have been exposed to his poor behaviour towards the mother, his denigration of her, speaking ill and poorly of her. That has hurt them. However, I am satisfied from hearing the father give evidence that he is aware of that and has desisted from that in the last thirteen months since the boys have been in his full time care.
The children have been exposed to the mother’s implacable almost hatred of the father since separation.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. If the children return to live with their mother in Melbourne further proceedings will eventuate. I have no doubt that the week after the father is meant to spend time with the children or speak to them by telephone, there will be a Contravention Application filed by him because he will not have seen his children or spoken to them in accordance with the Court Orders.
I have no faith that the mother will comply with these Orders. She has not done so in the past. She has showed scant regard for Orders made by the Court, the consequences for her children of her failure to abide by them, and scant regard for her children’s needs.
If the children remain in Sydney there will be no further institution of proceedings as the mother does not even take up the time she is offered. This will not be a case of the father failing to comply with Orders. It will be the mother failing to comply with Orders because she has not achieved what she wants.
There is a risk that the mother may not spend time with the children if I do not make the Orders she seeks. This will of necessity impact upon the benefit to the children of a relationship with their mother. However although this is a primary consideration under the Act it is not the only consideration.

Conclusion

The matter of Champness & Hanson [2009] FamCAFC 96 was an appeal by a father from a decision of a Judge to permit a mother to remove their two children to Ireland. The appeal was dismissed. In considering their decision the Full Court said this at paragraph 101:
It is true the primary considerations are “above” the additional considerations in the sense they appear first in s 60CC. However, we do not accept the premise inherent in the submission of counsel for the father that the primary considerations will always outweigh the additional considerations.
Their Honours referred to a decision of the Full Court in Marsden & Winch (No. 3) [2007] FamCA 1364 at paragraph 77:
…whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
This is the very issue here. In order to maintain for the boys the benefit of a meaningful relationship with their mother I would be sacrificing their relationship with their father and paternal family and in so doing would expose them to further physiological harm in their mother’s care to that which they have already been exposed.
In all those circumstances the balance heavily favours the children remaining in Sydney and living with their father due to their mother’s inability to put their needs as a priority and her absolute focus and determination on winning the war which is the father spending no time with his sons.
I will make Orders as set out by the father in Father’s Exhibit 3 with which the Independent Children’s Lawyer agrees. They are the Orders the Court determines are in the children’s best interests.
Furthermore, the Court will make an Order that in the event the mother fails to exercise her time as set out in the Orders on one occasion without an excuse sufficient to the father, then the mother’s time with the children is suspended and will be as agreed between the parents.
I will not put these children in a position of thinking their mother will spend time with them when she does not. Nor will I put the father in the position of having to organise dates, times and flights if the mother chooses to behave as she has in the past with her children and put their emotional and psychological health at risk. I will minimise this by ensuring that there is no time ordered for her to spend time with the children unless it is agreed. That is an Order in their best interests.
Therefore, I make the Orders as set out at the commencement of this decision.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Henderson FM

Associate: A. Morris

Date: 28 August 2009