HAVELOCK & STOREY
[2015] FCCA 2466
•4 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAVELOCK & STOREY | [2015] FCCA 2466 |
| Catchwords: FAMILY LAW – Long-term parenting contest – Mother seeking to relocate from region of [W] to south coast of New South Wales – relationship between children and Father strained by Mother’s unilateral cessation of their time with the Father – failure of Mother (and her partner) properly to consider impact on the children of such a relocation because of the arduous travel commitments and the impact of it on the young children – more significantly the Mother (and her partner) did not properly or adequately consider the likely adverse impact on the children by them being so removed from the relationships with their siblings (children from the Father’s later relationship) – Mother (and her partner) failed adequately to consider the likely adverse impact on the children of a move to the south coast of NSW by removing them also from their proximity to the Mother’s partner’s daughter with whom it was said the children had a close relationship – the Mother and her partner failed to consider adequately (or at all) the likely impact of proposed further parenting litigation by which the Mother’s partner seeks to secure parenting orders in relation to his daughter (who continues to live in [W], as do the children’s siblings) – restraint on the Mother relocating away from [W] region. |
| Legislation: Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(a) – (i), 61DA, 65DAA(1), (2) & (5) |
| Cales v Cales (2010) 251 FLR 454; (2011) 44 Fam LR 376 Collu & Rinaldo [2010] FamCAFC 53 McCall v Clark (2009) 41 Fam LR 483 Maluka v Maluka (2012) 45 Fam LR 129 Mazorski v Albright (2008) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 Morgan v Miles (2008) 38 Fam LR 275 Mulvany v Lane (2009) 41 Fam LR 418 MRR v GR (2010) 240 CLR 461 Sayer v Radcliffe (2013) 48 Fam LR 298 SCVG v KLD (2014) 284 FLR 191; (2015) 51 Fam LR 340 Shaeffer v Jacobs (2011) FLC ¶93-468 Sigley v Evor (2011) 44 Fam LR 439 Taylor v Barker (2008) 37 Fam LR 461 U v U (2002) 211 CLR 238 |
| Applicant: | MS HAVELOCK |
| Respondent: | MR STOREY |
| File Number: | CAC 224 of 2010 |
| Judgment of: | Judge Neville |
| Hearing dates: | 2 & 3 March 2015 |
| Date of Last Submission: | 25 March 2015 |
| Delivered at: | Canberra |
| Delivered on: | 4 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Siggins |
| Solicitors for the Applicant: | Mackenzie & Vardanega, Griffith, NSW |
| Solicitor/Advocate for the Respondent: | Mr S. Finch |
| Solicitors for the Respondent: | Creaghe Lisle, Wagga Wagga, NSW |
| Solicitor/Advocate for the Independent Children's Lawyer: | Ms N Dwyer |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW ([W]), NSW |
ORDERS
That the parties have equal shared parental responsibility for the children [X] born [omitted] 2006 (“[X]”) and [Y] born [omitted] 2009 (“[Y]”) and will make a genuine effort to come to joint decisions about:
(a)The children's education.
(b)The children's religious and cultural upbringing.
(c)The children's health, including scheduling of medical appointments.
That [Y] and [X] live with the Mother.
That [Y] and [X] spend time with the Father as follows:-
(a)On Sunday 8 March 2015 from 10am until 4pm,
(b)On Saturday 21st March 2015 from 5.00pm to 4.00pm Sunday 22th March and each fortnight thereafter for 6 fortnights;
(c)On Friday 28th June 2015 from the end of the school day to 4.00pm Sunday 28th June and each fortnight thereafter for 5 fortnights;
(d)On Friday 18th September 2015 from the end of the school day to the beginning of the school day on Monday 21th September and each fortnight thereafter;
SCHOOL HOLIDAYS AND SPECIAL OCCASIONS
(e)For school term holidays commencing in 2016, the children will remain in the care of the Father from the Monday of the weekend the Father would ordinarily have the children, until 5.00pm on the following Friday;
(f)Thursday 24th December 2015 (Christmas Eve) from 3.00pm until 3.00pm Friday 25th December and each alternate year thereafter;
(g)Sunday 25th December 2016 (Christmas Day) from 3.00pm until 3.00pm Monday 26th December and each alternate year thereafter;
(h)Where the first ordinary weekend visit with the Father falls on Christmas Eve or Christmas Day, that visit will remain in place with the exception that the Mother will spend time with the children either Christmas Eve or Christmas Night from 3.00pm for 24 hours, on alternate years to that described in e) and f) above;
(i)From, Friday 8th January 2016 from 4.00pm until 10.00am Friday 15th January;
(j)From Friday 6th January 2017 from 4.00pm until 10.00am Monday 16 January 2017, and thereafter each year beginning on the first ordinary weekend visit with the Father in January and ending at the end of the second ordinary visit with the Father in January;
(k)For no less than 2 hours on the children's birthdays as agreed between the parties but failing agreement from 4.00pm to 6.00pm, those dates being:
(i)a. [X] – [date omitted]
(ii)b. [Y] – [date omitted]
(l)For no less than 2 hours on the Fathers birthday as agreed between the parties but failing agreement from 4.00pm – 6.00pm;
(m)From 8.30am to 12.30pm each ANZAC Day;
(n)That the children spend at least 2 hours over the Easter long weekend with the parent they are otherwise not spending time with at time agreed between the parties and failing agreement on Easter Sunday from 4.00pm to 6.00pm.
(o)In the event that the Mother’s birthday ([date omitted]); the children’s birthdays; the children’s half siblings (born of the Mother); the Mother’s partner Mr J’s birthday ([date omitted]) falls on a day where the children are otherwise spending time with the Father, the children will spend time with the Mother for no less than 2 hours at times agreed between the parties and failing agreement from 4.00pm to 6.00pm.
(p)Changeover will take place by agreement of the parties. Failing agreement, changeover is to take place at the Father’s place of residence at the beginning of each visit, and at the Mother’s place of residence at the end of each visit, except where the Father is picking up from or dropping the children off at school.
CHILD-PARENT COMMUNICATION
The party with whom the children are not living at the time may telephone or video chat with the children at all reasonable times as agreed and failing agreement on Wednesday and Friday between 5.30pm – 6.00pm and for half an hour on Christmas morning;
The parties will provide means for the children to communicate freely and privately with both of their parents via appropriate electronic email/messaging applications. Neither parent will obstruct this communication or prevent the children’s access to such means, save for what would be considered reasonable limitation of the use of electronic equipment and the internet for a child.
MEDICAL INFORMATION
Each parent will ensure the other is kept informed:
(a)Of any medical problems or illness suffered by the children while in their care;
(b)Of any medication that has been prescribed for the children;
(c)In the event the Father is not present when appointments are made, the Mother shall inform the Father in writing as soon as practical (writing including by email or text) of any specialists medical appointments with any paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist in relation to the children.
(d)That the Mother do all acts and things to authorise any specialist that the children attend upon (paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist) to provide the Father with all reports by any such specialist.
All reasonable attempts will be made by both parties to agree to appointment times which are suitable to the Mother, Father and the children;
Both parents be permitted to attend on such appointments.
SCHOOLING
The Mother will do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time that the school forward directly to the Father copies of all the children's school reports, merit cards, any written material pertaining each child's academic and extracurricular activities;
The Mother will ensure that the school(s) are aware that the Father will be picking up and dropping off the children at times, and provide them with the Father’s contact details.
INJUNCTIONS AND OTHER MATTERS
The Mother is restrained and injuncted from changing the children’s place of residence from the City of [W]
That without admitting the need for same, both parties are injuncted and restrained from consuming alcohol to excess or using or allowing a third party to use illicit drugs whilst the children are in their care;
That the parties are hereby restrained by injunction of discussing these orders with the children or permitting anyone else to do so in the presence of the children;
The Mother is restrained from using or attempting to use any surname other than the surname Storey in respect of the children either formally or informally for any purpose whatsoever.
The Mother is to encourage the children at all times to refer to the Father as “Dad’ rather than “[fist name omitted]”
COURSES
Both the Mother and Father are to contact Centacare [W] within seven days of these Orders and enrol in the course known as “Keeping Kids in Mind” and complete the next available course and provide each other with a copy of their certificate of completion
The Father is to contact Centacare [W] within seven days of the making of these Orders and enrol in their Anger Management Course and complete the next available course and provide the Mother with a copy of his certificate of completion.
The Father is to within seven days contact [K] Medical Centre to make an appointment with a general practitioner from that practice for a review of his mental health plan and obtain a referral to a drug and alcohol counsellor.
The Father is to follow all recommendation of his general practitioner in this regard including any recommendations for generalist counselling. The Father is to advise the Mother’s solicitors, when he has attended that appointment and any recommendations arising.
The Father has leave to provide any health professional he attends upon with a copy of these Orders and a copy of the family report prepared by Ms C dated 27 February 2015, and is to advise the Mother of the details of any person he provides the family report to.
The Father is to attend upon a drug and alcohol counsellor for assessment and to advise the Mother of the outcome of this assessment.
IT IS NOTED that publication of this judgment under the pseudonym Havelock & Storey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WAGGA WAGGA |
CAC 224 of 2010
| MS HAVELOCK |
Applicant
And
| MR STOREY |
Respondent
REASONS FOR JUDGMENT
Introduction
In the course of this parenting hearing in Wagga Wagga in relation to [X] (born [omitted] 2006) and her young brother [Y] (who has autism) (born [omitted] 2009) (“the children”), it was agreed (or at least conceded after some to-ing and fro-ing) by the Applicant Mother that the issues to be determined were limited to three: (a) the Mother’s wish to relocate to the south coast of New South Wales (in particular, the [J] area), (b) whether the Father’s time with the children should remain supervised, and (c) the duration of the children’s time with their Father.[1]
[1] Among other places, see T 11, 15 - 16, 22, & 119.
In the course of the trial, and in submissions filed subsequent to it, the experienced independent children’s lawyer (“the ICL”) (a) opposed the Mother’s relocation, (b) said that the Father’s time with the children did not need to be supervised, and (c) that the children’s time with the Father should increase.
The evidence of the family consultant, Ms C, both in her Report (dated 26th February 2015) (Exhibit C) and in her oral evidence, in substance and in effect supported the position proposed by the ICL.
The Father, Mr Storey, has two young boys ([A], who has autism, and [B]: aged almost 5 and 3½ respectively) from his relationship with his former Wife, Ms S. Mr Storey says he co-parents his sons with Ms S in a shared-care arrangement, and does so without difficulty. Ms S filed an affidavit in the current proceedings in support of her former Husband to confirm such matters. Although she was available to give evidence at the trial, because of Mr Storey’s evidence, his former Wife was not required for cross-examination.
In my view, the unchallenged evidence of Mr Storey, and his former Wife, about the Father’s shared care parenting arrangement for his young sons [A] and [B] (notably with [A] having autism) is a significant consideration in terms of the Father’s parental capacity. It is also relevant, comparatively, about the co-parenting relationship between the Father and Ms S, on the one hand, and the Father and Ms Havelock, on the other.
The Mother has two children with her new partner, Mr J: [name omitted] (aged 1), and a new-born babe, who was to be born some three days or so after the trial concluded.
For the reasons that follow and in the light of all the evidence, in my view, the orders proposed by the ICL (with very modest adjustment) are in the best interests of the children, pursuant to s.60CA of the Family Law Act 1975 (“the Act”).
These reasons proceed as follows: (i) orders sought by the parties and the ICL, (ii) evidence of the parties (and others), (iii) evidence of the family consultant, (iv) outline of principle, and (v) consideration of the legislative scaffold.
Orders Sought by the Parties & the ICL
Orders Sought by the Applicant Mother (with numbering slightly amended but otherwise taken from the Mother’s Initiating Application):
1) That, excluding Clause 15 and notation of the court B, the Order made on the 11 December, 2013 is discharged.
2) That the Mother and Father have equal shared parental responsibility for the children, namely [X] born [omitted] 2006 (“[X]”) and [Y] born [omitted] 2009 (“[Y]”) and will make a genuine effort to come to joint decisions about:
a) The children’s education;
b) The children’s religious and cultural upbringing;
c) The children’s health, including scheduling of medical appointments.
3) That [X] and [Y] live with the Mother
Relocation and Spending time
4) That the Mother be permitted to relocate with the children to [J] or any other place within a 50 kilometre radius of [J].
5) That, subject to any further provisions as to supervisions, psychological treatment and/or counselling that is recommended and/or the court deems appropriate, [X] and [Y] spend time with the Father, unless otherwise agreed, as follows:
a) Half of the Christmas/summer school holidays, alternating the first and second half of those school holidays, with the children to spend the first half of those school holidays with the father in even numbered years and the second half in odd numbered years. Changeovers shall take place at McDonalds in [W], or any other place agreed to by the Mother and Father
b) The whole of the school holiday periods commencing at the end of the first school terms in even numbered years (including the Easter Long weekend whether it falls inside our outside the school holidays) and the whole of the school holiday period commencing at the end of the second school term in odd numbered years. Changeovers shall take place at McDonalds in [W], or any other place agreed to by the Mother and Father;
c) The whole of the school holiday periods commencing at the end of the third school term. Changeovers shall take place at McDonald’s or any other of the Restaurants at [omitted] Service Centre agreed to by the Mother and Father
d) From 10:00am Saturday until 2:00pm Sunday on the 3rd weekend of each school term, and where such weekend falls on a public holiday that the time be extended by 24 hours to include the Friday prior to or Monday subsequent to that weekend on which the public holiday falls. Changeovers shall take place at McDonald’s or any other of the Restaurants at [omitted] Service Centre agreed to by the Mother and Father;
e) From 10:00am Saturday until 1:00pm Sunday on the 6th weekend of the 1st and 4th school terms, and where such weekend falls on a public holiday that the time be extended by 24 hours to include the Friday prior to or Monday subsequent to that weekend on which the public holiday falls. Changeovers shall take place at McDonald’s or any other of the Restaurants at [omitted] Service Centre agreed to by the Mother and Father;
f) From 9:00am Saturday until 1:00pm Sunday on the 6th weekend of the 2nd and 3rd school terms, and where such weekend falls on a public holiday that the time be exted by 24 hours to include the Friday or Monday that the public holiday falls on. Changeovers shall take place at McDonalds or any other of the Restaurants at the [omitted] Service Centre agreed to by the Mother and Father;
g) The Easter Long Weekend from 10:00am on Good Friday until 2:00pm on Easter Sunday in each even numbered years and where the Easter Long Weekend falls outside of the school holiday period, changeovers shall take place at McDonald’s or any other of the Restaurants at [omitted] Service Centre agreed to by the Mother and Father;
6) That the children shall remain with the Mother for the Easter Long Weekend in odd numbered years, including where the Easter Long Weekend falls in school holidays periods the children would otherwise spend time with the Father pursuant to that Order.
Communication
7) That the parent with whom the children are not living at the time may telephone the children at all reasonable times as agreed and, failing agreement, by telephone and/or skype on Wednesdays and Fridays between 5:30pm and 6:00pm; for half an hour on Christmas morning and on the children’s birthdays; their siblings birthdays’ the parent’s and parent’s partner’s birthdays.
Medical Information
8) The Mother shall ensure that:
a) the Father is kept informed of any medical problems or illness suffered by [X] and/or [Y] whilst in the Mother’s case that requires medical intervention and/or hospitalisation;
b) The Father is kept informed of any medication and/or other treatment that has been prescribed or recommended for [X] and/or [Y];
c) In the event that the Father is not present when appointments are made for [X] and/or [Y], the Father is informed in writing (mail or text message) as soon as practical of any specialists; medical appointments with any paediatrician, surgeon, psychologist, psychiatrist, counsellor, therapist or other professional in relation to [X] and/or [Y];
9) That the Mother shall do all acts and things necessary to authorise any specialist that either [X] and/or [Y] attend upon (paediatrician, surgeon, psychologist, psychiatrist, counsellor, therapist or other professional) to provide the Father with all reports by any such specialist.
10) That all reasonable attempts shall be made by both parties to agree to appointment times which are suitable to the mother, Father and the child who is the subject of the appointment.
11) That the Father be permitted to attend on such appointments.
12) That the Father shall ensure the Mother is kept informed of any medical problems or illness suffered by the children whilst in the Father’s care.
Schooling
13) That within 14 days of the date of this Order and within 14 days of [X] and/or [Y]’s enrolment at any school the Mother shall do all acts and things and give all irrevocable authorities necessary to ensure that, at the Father’s expense, the school or schools the children attend provide directly to the Father copies of all the children’s school reports, merit cards, any written material pertaining to the children’s academic and extra-curricular activities.
Other matters
14) That, without admitting the need for same, the Mother and Father are injuncted and restrained form consuming alcohol to excess whilst [X] and/or [Y] are in their care.
15) That the Father shall not physically discipline the children and ensure that his wife, Ms S, does not physically discipline the children.
16) That the Mother and Father are hereby restrained by injunction of discussing this Order with [X] and [Y] or permitting any other person to do so in the presence of the children.
17) That the Mother is restrained from using or attempting to sure any surname other than the surname Storey in respect of [X] and [Y] either formally or informally for any purpose whatsoever.
AND THE COURT NOTES
A. It is intended that the Father’s wife, Ms S, will file an undertaking with the Court prior to 16 December, 2103 to the effect that she undertakes not to physically discipline [X] and/or [Y] whilst they are in her care and that the Father will supply to the Mother’s solicitors a signed and witnessed copy prior to 4:30pm on 16 December, 2013 and a sealed copy once received.
B. It is intended that the Undertaking given by Ms S is to continue with this Order.
The orders sought by the Respondent Father are as follows:
1) That the parties have equal shared parental responsibility for the children [X] born [in] 2006 ("[X]") and [Y] born [in] 2009 ("[Y]") and will make a genuine effort to come to joint decisions about:
a) The children's education.
b) The children's religious and cultural upbringing.
c) The children's health, including scheduling of medical appointments.
2) That [Y] and [X] live with the mother.
3) That [Y] and [X] spend time with the father as follows:-
a) On Saturday 7th March 2015 from 5.00pm to 4.00pm Sunday 8th March and each fortnight thereafter for 6 fortnights;
b) On Friday 12th June 2015 from the end of the school day to 4.00pm Sunday 14th June and each fortnight thereafter for 5 fortnights;
c) On Friday 4th September 2015 from the end of the school day to the beginning of the school day on Monday 7th September and each fortnight thereafter;
SCHOOL HOLIDAYS AND SPECIAL OCCASIONS
d) For school term holidays beginning on or after Friday 4th September 2015, the children will remain in the care of the Father from the Monday of the weekend the Father would ordinarily have the children, until 5.00pm on the Friday;
e) Thursday 24th December 2015 (Christmas Eve) from 3.00pm until 3.00pm Friday 25th December and each alternate year thereafter;
f) Sunday 25th December 2016 (Christmas Day) from 3.00pm until 3.00pm Monday 26th December and each alternate year thereafter;
g) Where the first ordinary weekend visit with the Father falls on Christmas Eve or Christmas Day, that visit will remain in place with the exception that the Mother will spend time with the children either Christmas Eve or Christmas Night from 3.00pm for 24 hours, on alternate years to that described in e) and f) above;
h) Friday 8th January 2016 from 4.00pm until 10.00am Monday 18th January and each year beginning on the first ordinary weekend visit with the Father in January and ending at the end of the second ordinary visit with the Father in January;
i) For no less than 2 hours on the children's birthdays as agreed between the parties but failing agreement from 4.00pm to 6.00pm, those dates being:
a. [X] – [date omitted]
b. [Y] – [date omitted]
j) For no less than 2 hours on [Mr Storey’s] and [A]’s and [B]’s birthdays being [dates omitted] as agreed between the parties but failing agreement from 4.00pm – 6.00pm;
k) From 8.30am to 12.30pm each ANZAC Day;
l) That the children spend at least 2 hours over the Easter long weekend with the parent they are otherwise not spending time with at time agreed between the parties and failing agreement on Easter Sunday from 4.00pm to 6.00pm.
m) In the event that the Mother’s birthday ([date omitted]); the children’s birthdays; the children’s half siblings (born of the Mother); the Mother’s partner Mr J’s birthday ([date omitted]) falls on a day where the children are otherwise spending time with the Father, the children will spend time with the Mother for no less than 2 hours at times agreed between the parties and failing agreement from 4.00pm to 6.00pm.
n) Changeover will take place by agreement of the parties. Failing agreement, changeover is to take place at the Father’s place of residence at the beginning of each visit, and at the Mother’s place of residence at the end of each visit, except where the Father is picking up from or dropping the children off at school.
CHILD-PARENT COMMUNICATION
4) The party with whom the children are not living at the time may telephone or video chat with the children at all reasonable times as agreed and failing agreement on Wednesday and Friday between 5.30pm – 6.00pm and for half an hour on Christmas morning;
5) The Parents will provide means for the children to communicate freely and privately with both of their parents via appropriate electronic email/messaging applications. Neither parent will obstruct this communication or prevent the children’s access to such means, save for what would be considered reasonable limitation of the use of electronic equipment and the Internet for a child. For example, after 7.00pm on a school night, or where the child is at risk of incurring excessive financial cost to the parent in a given billing period.
MEDICAL INFORMATION
6) Each parent will ensure the other is kept informed:
a) Of any medical problems or illness suffered by the children while in their care;
b) Of any medication that has been prescribed for the children;
c) In the event the father is not present when appointments are made, the mother shall inform the father in writing as soon as practical (writing including by email or text) of any specialists medical appointments with any paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist in relation to the children.
d) That the mother do all acts and things to authorise any specialist that the children attend upon (paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist) to provide the father with all reports by any such specialist.
7) All reasonable attempts will be made by both parties to agree to appointment times which are suitable to the mother, father and the children;
8) Both parents be permitted to attend on such appointments.
SCHOOLING
9) The Mother will do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time that the school forward directly to the father copies of all the children's school reports, merit cards, any written material pertaining each child's academic and extracurricular activities;
10) The Mother will ensure that the school(s) are aware that the Father will be picking up and dropping off the children at times, and provide them with the Father’s contact details.
OTHER MATTERS
11) That without admitting the need for same, both parties are injuncted and restrained from consuming alcohol to excess or using or allowing a third party to use illicit drugs whilst the children are in their care;
12) That the parties are hereby restrained by injunction of discussing these orders with the children or permitting anyone else to do so in the presence of the children;
13) That the parties will endeavour to build and maintain an amicable relationship without conflict.
14) That the parties recognise that the ‘best interests of the children’ are not necessarily a single parents view, and that conflicting views should be resolved by seeking an appropriate person or source of information which both parties are able to consult.
15) The mother is restrained from using or attempting to use any surname other than the surname Storey in respect of the children either formally or informally for any purpose whatsoever
Minute of Order Sought by the Independent Children’s Lawyer are as follows:
1) That the parties have equal shared parental responsibility for the children [X] born [omitted] 2006 (“[X]”) and [Y] born [omitted] 2009 (“[Y]”) and will make a genuine effort to come to joint decisions about:
a) The children's education.
b) The children's religious and cultural upbringing.
c) The children's health, including scheduling of medical appointments.
2) That [Y] and [X] live with the mother.
3) That [Y] and [X] spend time with the father as follows:-
a) On Sunday 8 March 2015 from 10am until 4pm,
b) On Saturday 21st March 2015 from 5.00pm to 4.00pm Sunday 22th March and each fortnight thereafter for 6 fortnights;
c) On Friday 28th June 2015 from the end of the school day to 4.00pm Sunday 28th June and each fortnight thereafter for 5 fortnights;
d) On Friday 18th September 2015 from the end of the school day to the beginning of the school day on Monday 21th September and each fortnight thereafter;
SCHOOL HOLIDAYS AND SPECIAL OCCASIONS
e) For school term holidays commencing in 2016, the children will remain in the care of the Father from the Monday of the weekend the Father would ordinarily have the children, until 5.00pm on the following Friday;
f) Thursday 24th December 2015 (Christmas Eve) from 3.00pm until 3.00pm Friday 25th December and each alternate year thereafter;
g) Sunday 25th December 2016 (Christmas Day) from 3.00pm until 3.00pm Monday 26th December and each alternate year thereafter;
h) Where the first ordinary weekend visit with the Father falls on Christmas Eve or Christmas Day, that visit will remain in place with the exception that the Mother will spend time with the children either Christmas Eve or Christmas Night from 3.00pm for 24 hours, on alternate years to that described in e) and f) above;
i) From, Friday 8th January 2016 from 4.00pm until 10.00am Friday 15th January
j) From Friday 6th January 2017 from 4.00pm until 10.00am Monday 16 January 2017, and thereafter each year beginning on the first ordinary weekend visit with the Father in January and ending at the end of the second ordinary visit with the Father in January;
k) For no less than 2 hours on the children's birthdays as agreed between the parties but failing agreement from 4.00pm to 6.00pm, those dates being:
a. [X] – [omitted]
b. [Y] – [omitted]
l) For no less than 2 hours on the fathers birthday as agreed between the parties but failing agreement from 4.00pm – 6.00pm;
m) From 8.30am to 12.30pm each ANZAC Day;
n) That the children spend at least 2 hours over the Easter long weekend with the parent they are otherwise not spending time with at time agreed between the parties and failing agreement on Easter Sunday from 4.00pm to 6.00pm.
o) In the event that the Mother’s birthday ([date omitted]); the children’s birthdays; the children’s half siblings (born of the Mother); the Mother’s partner Mr J’s birthday ([date omitted]) falls on a day where the children are otherwise spending time with the Father, the children will spend time with the Mother for no less than 2 hours at times agreed between the parties and failing agreement from 4.00pm to 6.00pm.
p) Changeover will take place by agreement of the parties. Failing agreement, changeover is to take place at the Father’s place of residence at the beginning of each visit, and at the Mother’s place of residence at the end of each visit, except where the Father is picking up from or dropping the children off at school.
CHILD-PARENT COMMUNICATION
4) The party with whom the children are not living at the time may telephone or video chat with the children at all reasonable times as agreed and failing agreement on Wednesday and Friday between 5.30pm – 6.00pm and for half an hour on Christmas morning;
5) The parties will provide means for the children to communicate freely and privately with both of their parents via appropriate electronic email/messaging applications. Neither parent will obstruct this communication or prevent the children’s access to such means, save for what would be considered reasonable limitation of the use of electronic equipment and the internet for a child.
MEDICAL INFORMATION
6) Each parent will ensure the other is kept informed:
a) Of any medical problems or illness suffered by the children while in their care;
b) Of any medication that has been prescribed for the children;
c) In the event the father is not present when appointments are made, the mother shall inform the father in writing as soon as practical (writing including by email or text) of any specialists medical appointments with any paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist in relation to the children.
d) That the mother do all acts and things to authorise any specialist that the children attend upon (paediatrician, surgeon, psychologist, psychiatrist, counsellor or therapist) to provide the father with all reports by any such specialist.
7) All reasonable attempts will be made by both parties to agree to appointment times which are suitable to the mother, father and the children;
8) Both parents be permitted to attend on such appointments.
SCHOOLING
9) The Mother will do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time that the school forward directly to the father copies of all the children's school reports, merit cards, any written material pertaining each child's academic and extracurricular activities;
10) The Mother will ensure that the school(s) are aware that the Father will be picking up and dropping off the children at times, and provide them with the Father’s contact details.
INJUNCTIONS AND OTHER MATTERS
11) The mother is restrained and injuncted from changing the children’s place of residence from the City of [W]
12) That without admitting the need for same, both parties are injuncted and restrained from consuming alcohol to excess or using or allowing a third party to use illicit drugs whilst the children are in their care;
13) That the parties are hereby restrained by injunction of discussing these orders with the children or permitting anyone else to do so in the presence of the children;
14) The mother is restrained from using or attempting to use any surname other than the surname Storey in respect of the children either formally or informally for any purpose whatsoever.
15) The mother is to encourage the children at all times to refer to the father as “Dad’ rather than “[first name omitted]”
COURSES
16) Both the mother and father are to contact Centacare [W] within seven days of these Orders and enrol in the course known as “Keeping Kids in Mind” and complete the next available course and provide each other with a copy of their certificate of completion
17) The father is to contact Centacare [W] within seven days of the making of these Orders and enrol in their Anger Management Course and complete the next available course and provide the mother with a copy of his certificate of completion.
18) The Father is to within seven days contact [K] Medical Centre to make an appointment with a general practitioner from that practice for a review of his mental health plan and obtain a referral to a drug and alcohol counsellor.
19) The father is to follow all recommendation of his general practitioner in this regard including any recommendations for generalist counselling. The father is to advise the mother’s solicitors, when he has attended that appointment and any recommendations arising.
20) The father has leave to provide any health professional he attends upon with a copy of these Orders and a copy of the family report prepared by Ms C dated 27 February 2015, and is to advise the mother of the details of any person he provides the family report to.
21) The father is to attend upon a drug and alcohol counsellor for assessment and to advise the mother of the outcome of this assessment.
Evidence of the Parties (and others)
In addition to the three specific issues already referred to, generally, the following matters were canvassed with both parties:
(a)Two incidents involving the Father’s former Wife (Ms S) and the children; the first incident (in January 2013) involved Ms S smacking [Y], following which the Father’s time with the children was suspended by the Mother for the better part of one year;
(b)The second incident (in March 2014) involved the Father drinking for some time, finding out about his Wife having an affair, and him punching her. This incident occurred in the garage of the Father’s residence, while the children were in the house; police (and ambulance) were called and the Father was charged with assault occasioning actual bodily harm; he pleaded guilty. Again, the Father’s time with the children was suspended by the Mother for a significant period of time;
(c)A third issue related to the Father’s history of drinking and anger management;
(d)A fourth issue related to the Mother’s partner (Mr J), and his relationship with his child ([Z]) from an earlier relationship, who he has not seen since Christmas 2013, and his intention to commence legal proceedings to seek to spend time with his daughter, who resides in [W]. The Court was advised that those legal proceedings would commence after the current proceedings concluded.
The Mother’s Evidence
At the outset of her cross-examination, the Mother was asked about the Father’s drinking and also in relation to allegations of family violence. In passing, the Father’s solicitor noted that there was no challenge to the Mother’s affidavit evidence regarding the Father’s use of alcohol during the relationship.[2]
[2] T 30-31.
The Mother confirmed there was one occasion in the course of the relationship where she threw a cup at Mr Storey, but otherwise did not agree with the proposition that she had thrown more than the cup.
There was some examination of the Mother regarding the incident between the parties when the eldest child [X] was quite young in 2006. I pointed out to both parties and their lawyers that, absent very specific reason why I needed to be taken through matters in 2006 for a trial taking place in 2015 I had difficulty seeing the utility in such cross examination.[3]
[3] T 33.
The Mother noted the following as things that she saw as important in order for the Father’s time with the children to increase. This was also in the context of her still seeking that the Father’s time with the children be supervised. She sought that there be a mental health assessment for the Father (on the basis of the Father’s admitted depression, amongst other things); she also sought that there be orders dealing with the Father’s drinking habits. For example she suggested that he might attend meetings of Alcoholics Anonymous. The Mother also confirmed, in my view significantly, that there was never any violence perpetrated by the Father directed towards the children.[4]
[4] T 34-35.
Quite fairly the Mother agreed that if orders were in place that dealt with anger management issues and the Father’s use of alcohol, and given that there had never been any violence towards the children, there would be no need for the Father’s time with the children to be supervised.[5]
[5] T 35-36.
Regarding the Mother’s proposal to relocate to the South Coast she agreed that in approximately August 2009 she had said to, if not threatened, the Father that she could just move to the Coast and he would never see the children again.[6]
[6] T 38.
The Mother also agreed that, following an incident whereby the Father’s then Wife smacked [Y] in January 2013, the Father’s time with the children was suspended by the Mother until mid December of that year.[7] She said that while the Father gave her an assurance that the children would be safe in his care, the Mother was not satisfied with just an assurance.
[7] T 40 & 45.
Time between the children and the Father only resumed, some 12 months or so later, upon the Father’s Wife giving an undertaking (in the latter part of 2013) that she would not physically discipline the children. Once that undertaking was given, the Father’s still somewhat limited time continued from December 2013 until 2nd March 2014, when the Father assaulted his Wife, at which time the Mother again suspended the Father’s time with the children. That suspension of time continued until 7th September 2014.[8]
[8] T 46.
And from September 2014, the Father has had the children with him each alternate Sunday between 10am and 4pm. The Mother agreed that this “time with” regime was the same to that which applied in 2012.[9]
[9] T 46 - 47.
The Mother also confirmed that she had made multiple complaints/reports to the Department of Family and Community Services (formerly the Department of Community Services “DOCS”), as well as to the police, and to the NSW Ombudsman. Following all of these reports, it was confirmed to the Mother by each agency that no further action would be taken against the Father in relation to the smacking incident involving [Y].[10]
[10] T 52.
Annexed to the Father’s affidavit, filed 30th May 2014 is a report of Dr B, who is/was the Father’s treating psychologist. The Mother confirmed that she accepted the opinion of Dr B, which indicates that the Father posed no relevant risk to the children in the context, or against the background, of the Father’s assault on his former Wife.[11]
[11] T 56.
In relation to the issue of relocation to the south coast of NSW, the Mother’s evidence was as follows.
She confirmed that (a) she had no specific plans regarding relocation at the present; (b) her partner was confident of obtaining work on the south coast; (c) the issue of relocation had been “on the table” for possibly five or six years.[12] She also said that the last time she lived in the [J] area was when she was in year 9, in approximately 2001.
[12] T 56 – 57.
In answer to questions from the ICL, the Mother commented as follows.
She confirmed that she did not have any discussion with Mr Storey regarding what school [Y] would attend. Equally, she did not discuss with the Father, in the light of some health/learning issue with [Y], whether the child should in fact commence school. She left that decision up to the paediatrician.[13]
[13] T 59 – 60.
The Mother confirmed that she had obsessive compulsive disorder (“OCD”), and that she was not seeing anyone about this disorder at the moment, but had previously been going to “community mental health and Headspace.” But otherwise she said that her OCD was under control.[14]
[14] T 60 – 61.
She confirmed that when the children returned to her after spending time with their Father, the reports of that time are “good.”[15]
[15] T 61.
She confirmed also that the children call their Father “[first name omitted]”, and the Mother’s partner “Dad.” She said that she left such decisions about what to call another adult, including what to call their Father, up to the children. This applied, she said, even to [Y] who is only five years old.[16]
[16] T 62.
In my view, the Mother showed here, in particular, very significant lack of insight and parental responsibility. Decisions that should properly remain with a parent have been delegated to very young children.[17]
[17] See the general discussion and the Mother’s answers to questions from the Bench at T 62 - 63.
The Mother said that [Y] changed for the better during the 12 months or so when he did not see his Father following the smacking incident involving the Father’s then Wife.[18]
[18] T 63.
She said that, notwithstanding the distance between [G] (where the Mother lived prior to her time in [J]) and [J] (she said it was a drive, without stopping of about 4½ hours; the ICL started to refer to Google Maps – which shows that the shortest time for such a journey to be just over 6½ hours), it was a reasonably practical exercise to do such a trip a number of times each year, and that this occur with four children.[19]
[19] T 67 – 68.
The Court may take judicial notice that travelling with young children almost invariably requires that, for long journeys, reasonably regular stops are required for refreshments, and other things. Assuming this to be the case for the trip from [J] to [G], such a journey would obviously take quite a deal longer than either the Mother, or Google Maps, suggest.
There were a series of questions to the Mother that concerned whether the Father had sought any additional time with the children. Initially in her affidavit material, the Mother said that this had not been requested by him. However, the ICL pointed out an SMS exchange which confirmed that the Father had sought extra time, specifically around Christmas [2014]. The Mother confirmed that her affidavit evidence was incorrect.[20]
[20] T 70.
In the same exchange, the Mother’s evidence was that the children had not asked for extra time with their Father. This was in answer to questions regarding whether it would be in the children’s interests to see their Father at Christmas. She went further and said that it would not be in their interests because “there was nothing in writing to … the effect that it was in order, so no.”[21]
[21] T 70.
Again, unfortunately, in my view, this showed very limited insight by the Mother in relation to the children’s best interests in having a meaningful relationship with their Father. In practical effect, the Mother’s evidence was that if something was not in the orders, she would not accommodate any so-called extra time between the children and their Father – even at Christmas. Leaving aside any Christmas cheer and goodwill, such an attitude more generally showed little insight into the significance of the children’s relationship with their Father.
The Mother confirmed that she and Mr Storey do not talk. All communication was now effectively done through or with her partner and the Father.[22] Later she confirmed that if anything happened to her partner, she again confirmed that she did not communicate with Mr Storey.[23]
[22] T 71.
[23] T 73.
There was the following important exchange between the ICL and the Mother regarding her proposed move to the [J] area (emphasis added):[24]
[24] T 72.
When you say your physical and emotional health has suffered whilst living in [W], following on from his Honour’s questions, is that whilst living in [W] [sic: [W]] where Mr Storey is, is that’s what you’re saying?‑‑‑It has nothing to do with Mr Storey completely, like I – I don’t like [W], it’s not my ideal place to be, no.
Okay. I just have some questions arising from what his Honour was [to] talking to you about. You live in [W]?‑‑‑Correct.
And Mr Storey lives with his parents in [omitted]?‑‑‑At present apparently, correct.
For his Honour’s benefit that’s a small village on the [omitted] Highway about 15 to 25 minutes depending on traffic?‑‑‑Just out of [W].
It’s not too far away, it’s a ..... village, but it’s not in town?‑‑‑Correct.
And that’s still too close for you?‑‑‑I would prefer not to be in [W] at all. It doesn’t matter how far away Mr Storey is. I don’t like [W] itself.
So the desire to move to [J] is a desire to get away from Mr Storey?‑‑‑No, it’s a desire to get away from [W].
It will be immediately seen that the Mother’s proposed move has got nothing to do with the relationship between the Father and the children; nor is it related to anything as between the Mother and the Father. She further confirmed that her parents had not moved down the coast to the [J] area from the general [W] region.
The Mother confirmed that the children were well settled where they are at the present; the children’s medical practitioners are in place including [Y]’s paediatrician.[25]
[25] T 74.
In further questions on the second day of the trial, the Mother confirmed that the supervision requirement that she sought could be dispensed with once the Father had undertaken courses regarding anger management and alcohol use.[26]
[26] T 84 – 85.
Again, Ms Havelock confirmed that the real issue was not Mr Storey but rather living in or near “[W].” She did say that she had some family support in the [J] area. She also said that that her partner’s daughter (and that child’s Mother) lives in [W]. She confirmed that her partner does not see his daughter; this would only happen, she said, when parenting proceedings were commenced in relation to that child – [Z].[27]
[27] T 86 – 87.
The Mother further confirmed that [X] and [Y] had a “close” relationship with [Z], but that they had not seen [Z] for 12 months.[28]
[28] T 87.
In answer to further questions from the ICL, Ms Havelock said that [X]’s and [Y]’s relationship with Mr Storey’s younger children ([A] and [B]) was, she agreed, an important one.[29]
[29] T 89.
She confirmed that, notwithstanding her concerns about the Father’s drinking, there was only one incident of which she was aware that related to such drinking, namely the Father’s assault on his former Wife after he found out that she had been having an affair.[30]
[30] T 90 - 91.
Evidence of Mr J (Mother’s Partner)
Mr J confirmed that the children, [X] and [Y], call him “Dad”; he said [X] first began this practice some time ago, while [Y]’s use of that term was more recent. He said that being called “Dad” made him feel more accepted. He said he did not think how it might impact on Mr Storey, or that it would affect his (Mr Storey’s) relationship with the children, who (he said) were aware that he was not their real Father.[31] He acknowledged that anyone meeting or hearing the children and referring to him as “dad” would be confused as to who their real Father is.[32]
[31] T 93.
[32] T 94.
After noting a range of issues that would likely flow from a move to the [J] area (e.g. obtaining employment and accommodation, and working out the appropriate educational requirements for the children), he agreed that the regular travel arrangements for visits back to [omitted] and or [W] as proposed by Ms Havelock would be “a fairly busy schedule.” He agreed with the ICL that, as proposed, it would be some 11 trips per year. He thought this was realistic.[33]
[33] T 95.
For my part, respectfully, I have very significant doubts about such a regime – short, medium and long term. It is bound to be onerous on all the children involved, as well as on the parents (and any partner), not to mention reasonably costly.
He said his communication with Mr Storey was without any major issue. It was primarily by SMS.[34]
[34] T 96.
Mr J agreed that [X]’s and [Y]’s relationship with [Z] is important. He also confirmed that it will be necessary to undertake legal proceedings to enable him to obtain parenting orders in relation to [Z]. Those proceedings, he thought, would not commence until at least in twelve months’ time. They would likely depend, in the first instance, on paying off the costs of the current proceedings.[35]
[35] T 97.
The Father’s Evidence
The Father provided a certificate that confirmed his participation in a parenting seminar styled “Building Connections.” It became Exhibit D.
It was not disputed, for the purposes of the limited issues this Court is required to decide, that, in relation to the incident of the Father’s assault on his former Wife, (a) he had been drinking the night before the incident, and (b) his former Wife gave evidence on his behalf in relation to the assault charge, such as that Mr Storey was depressed at the time of the assault.[36] He also had some gambling issues at that time.
[36] T 107.
He confirmed that it was not unreasonable for a restraint on him drinking when the children are in his care, which are requirements under an Apprehended Violence Order involving his former Wife and the care of his children with her. That order was due to expire in April or May of this year. The Father confirmed that, in his view, he had an issue with alcohol but it was something he was dealing with, something for which he was seeking (and had been seeking) assistance, such as with various counsellors (who dealt with both gambling and alcohol), as well as having seen Dr B.[37]
[37] T 111 – 115.
There was some exploration of what the family consultant reported (whose evidence is noted later in these reasons) regarding the assault on his former Wife. It was said by Mr Storey (to speak somewhat generally) that he sort of blacked out regarding the actual incident. He said that in discussions with Dr B it was more likely than not that this “blackout” was as a result of the long build-up of stress he felt in not being able to see his children for so long, his depression, his realisation of his Wife’s affair, and what he said was a relationship (with Ms Havelock) of domestic violence.[38]
[38] T 116. Sometimes in the evidence, this “blackout” was referred to as a “brain snap.” Whatever the description, Mr Storey said that he was not aware of his actions for that split second of the assault.
Dr B said (in his report annexed to Mr Storey’s affidavit filed 30th May 2014) that Mr Storey’s “brain snap” will not happen again.[39] Of course, Dr B’s report speaks for itself rather than Mr Storey’s summary of it. It might properly be said here that the Report is, in my view, thorough and helpful in its assessment of the Father and notes (p.3 of the Report): “In my opinion, Mr Storey has a sound prognosis for recovery and stability.”
[39] T 117.
The Father confirmed that he was living with his parents; he did this, he said, primarily because he was lonely living on his own when the children (primarily the boys from the marriage to his former Wife,
Ms S) were with their Mother. He also said that he formerly had some suicide ideation, and had once tried to cut himself. He saw a counsellor in relation to this.[40]
[40] See the discussion at T 123 – 124.
After some general comments about [X] being a bright and enthusiastic young girl (about which there was no disagreement) there followed discussion about [Y]’s autism. In this regard Mr Storey noted that one of his other sons, [A], also has autism, which has resulted in the Father having regular engagement with speech pathologists and other relevant experts that deal with regular assessments of [A] and his progress. In fact, the centre that [Y] attends for his autism ([K] Early Intervention Centre) is the same Centre attended by [A].[41]
[41] Generally, see the discussion about the range of issues dealt with by [Y] and [A] at T 126 – 128.
In relation to the care of, and Mr Storey’s capacity to care for, all four of his children, he said:[42]
Combine all that together, I put it to you that that’s quite a handful, isn’t it?‑‑‑You throw a two year old on top of that, it sure is.
It sure is. Now, that’s especially quite a handful for somebody that has an ongoing issue with stress, isn’t it?‑‑‑I beg to differ. I find that the days I’m happiest and most confident and motivated and have a sense of direction and generally go better is the days when I have either my boys, or in fact when I have all four children.
[42] T 128.
He confirmed that his intention (and orders sought) was to ensure that all of his children spent regular time together. He confirmed also that he intended to move out into his own residence sometime in the next year or thereabouts; he said that while he lived with his parents, there was more than adequate room for the children when they spent time with him.[43]
[43] T 129.
As outlined earlier, the Father said that there were no parenting issues with his former Wife in relation to arrangements for [A] and [B]. In this regard I note –again - that Ms S filed an affidavit in support of Mr Storey, but ultimately she was not required for cross examination.
In relation to the Mother’s proposal to relocate, his main evidence seemed to be that not only did he have some difficulties (he said: “It’s not my choice for her to move”) with it but as well he had difficulty ‘getting his head around’ the thought and operation of it.[44]
[44] T 133.
More particularly he confirmed that the main reason he opposed the Mother relocating was because the history of the matter indicated to him that he would never see the children.[45]
[45] T 134 – 138.
The Father confirmed to the ICL that he still had a mental health plan in place, apparently through the medical centre he attends.[46] He was also taken, by the ICL, through a range of the recommendations made by Dr B that would assist him, such as daily exercise, structure in his daily life and such matters. The Father confirmed that when he saw
Dr B, he was very anxious, but now he was back at full time work, which occupied him very much, particularly when the boys ([A] and [B]) were not with him.[47]
[46] T 139.
[47] T 140.
The ICL explored with the Father his drinking and its possible effect on his parenting, and also the likely impact on the children (who were in the house at the time) of the assault on Ms S by the Father, which took place in the garage of the residence. He said that, generally, he did not think that drinking had any impact on his parenting, but he was conscious of the negative impact on the children of family violence (including the incident involving Ms S) and being exposed to it. In this regard he indicated that he saw the negative impact on [X] arising from the abuse given to the Father by Ms Havelock, and also the impact of the current litigation on all the children.[48]
[48] T 141 – 144. The COPS event document relating to the assault on Ms S, which sets out the terms of the apprehended violence order, dated 5th May 2014, became Exhibit E.
The Father said that when [X] and [Y] spend time with him, not only are [A] and [B] usually present but so too are cousins, [names omitted]. He said that [X] goes off all the time with these slightly older cousins doing “make-up or organising a little show.”[49]
[49] T 146.
The ICL returned to the Father’s engagement with the Kurrajong Early Intervention Centre and his relationship with [Y] (and the Centre itself) through it. The following exchange, in my view, is instructive:[50]
[50] T 148 – 149. It is “curious” as well as unfortunate, that the Mother did not advise the Father of [Y]’s attendance at this Centre.
… And what contact do you have with [K] in relation to [Y]? ‑‑‑ It’s a funny story. When I - I first approached [K] because I heard second-hand or something that [Y] was going there. I – [Ms Havelock] never informed me, same as [Ms Havelock] didn’t inform me of schools or anything else that I was supposed to be contacted and – so I went – I went down there and introduced myself. I explained who I was and that I had court orders which I could show them which says that, you know, any part of his schooling or whatnot I should be – they should be able to contact me or whatnot and they were really happy to meet me to and know that I was this person that was in his life and care. I had a – a couple of appointments with them with regards to – they do a – like a family plan, what they want to achieve for the child, what their main concerns are and what they were going to do to address each of those concerns. So we went through one of those. I met all of his teachers and therapists and for some time they did keep in contact with me and whatnot, but then in the last, I think, year I haven’t really heard much from them at all, same as I haven’t heard anything from their school or anything. I just get reports and I don’t get them any more either, so I don’t know what happened or why.
Have you rang and asked?‑‑‑I haven’t. It ‑ ‑ ‑
Because you could have couldn’t you?‑‑‑I could have.
Okay.
HIS HONOUR: Also the fact that [A] has programs with them, wouldn’t they have known you or you would have known them? You wouldn’t have been there any other stage? ‑‑‑ I actually mentioned to them on a couple of times now about how [Y] was there and had been there. Now, whether the people that I was talking to didn’t have any direct involvement with [Y] or didn’t think to mention it, I’m not really sure. I did bring it up as a – a brief topic, but none of them seemed to offer or say anything. As far as I hear [Y] may well not be there anymore. They – they didn’t seem to offer any kind of indication that he was there.
The Father said that he used to get copies of the children’s school reports but [strangely] he did not do so now. He had not followed this up with the school.[51]
[51] T 149.
Finally, in relation to relocation, the Father said:[52]
And just lastly, Mr Storey, just thinking about the recommendations, Ms C’s report, she has made four and the final one is that Ms Havelock’s wish to relocate is deferred until a stable visitation schedule is in place, that is for at least 18 months. I want you to think carefully about this, if that were to happen, if Ms Havelock or his Honour made orders in line with what you’re proposing and you had a stable period of 18 months, no hiccups, no stopping and starting, overnight time, is relocation something that you would consider?‑‑‑I would consider it, yes.
[52] T 150.
Evidence of Family Consultant
Here I will deal firstly with matters noted in the Family Report (“the Report”) of Ms C (Exhibit C), then with her brief oral evidence.
In my view, it is sufficient to note the following from the Report, more particularly, those parts that record her observations between the children and their Father, then in full, her evaluation and recommendations.
Firstly, regarding [X], Ms C noted, at [73] & [74] following:
[73] [X] said she did not really know how much time she wanted with each of her parents. Agreeing that she did not have much time with her father at the present time, [X] said this was “OK”. She went on “I don’t really like going to my father’s … because he doesn’t really play with us”. [X] complained her father played with her half-brothers rather than with her or [Y]. Her comments here could well reflect some coaching.
[74] I heard from [X] that she used to sleep over at her father’s but that “I kind of got sad because I missed Mum and whenever I got to ring her I cried because I missed her”. [X] recollected she rang her mother on Friday and Saturday nights when she stayed over. [X] told me she would “not really” like to sleep at her father’s again because “I’d miss Mum and Dad [Mr J]”.
Then at [79], Ms C recorded:
As might be expected, [X]’s test results at Attachment 3 indicated [X]’s strongest positive involvement was with her mother and that she derived her feelings of self-worth from her perceptions of her mother’s regard for her. She was also strongly positively involved with her stepfather. Not surprisingly, given her living arrangements, [X] was much less involved with her father. [X] showed a normal degree of sibling rivalry towards her brother, [Y]. She scored in the normal range on a common measure of children’s anxiety, according with her presentation.
In relation to her brief [initial] encounter with young [Y], she said, at [80]:
[Y] was keen to see me by himself. He did not know why he had to talk to me but speculated it was because he had to play some games with me. After I explained, [Y] lengthily told me his current arrangements. I could not understand his conversation. [Y] corrected me when I asked him if he would like to spend time with his “other Dad”, advising me “You mean [first name omitted]? [first name omitted] isn’t my other Dad … He’s still nice”. [Y] assured me Mr Storey was “nice” to him. When I said I wanted to see him with his father, [Y] again corrected me, calling Mr Storey “[first name omitted]”.
Reporting on the children’s engagement with their Father, Ms C said, at [84] – [88]:[53]
[53] There was an “incident” during the interviews, which is noted below, of [Y] “chewing” the family consultant’s leg. During her oral evidence, very kindly, she said that [Y] was “very friendly.” T 159.
[84] The children both greeted their father in an affectionate manner. [Y] said “Hallo [first name omitted]” to him and asked his father when he would next see him. When he was told “Sunday, mate”, [Y] happily announced this was only five days away. [Y] challenged [X] for calling Mr Storey “Dad” and Mr Storey asked “Why not? I am Dad” in a pleasant tone. [Y] advised “He’s ‘[first name omitted] Dad’” to which Mr Storey responded that they could have “two Dads”, without rancour.
[85] [Y] began chattering about being a soldier. [X] encouraged [Y] to show their father how he imagined he was swimming at Body Splash. [Y] angrily told his sister he was not imagining swimming but rather that the water was coming from his blue hands.
[86] When [Y] came near him, Mr Storey gave him a cuddle. Both children were relaxed in their father’s company and he interacted pleasantly with each of them. Mr Storey praised [X] when she told him some facts she had learned at school and how she could use her i-pad. Much laughter ensued when [X] talked about having a boyfriend. [X] told her father how they were in a tank in Melbourne with a three metre (toothless) shark.
[87] [X] talked about going back to school the following week. Mr Storey cautioned [Y] to behave when he began playing at being a shark, pretending to chew my leg.
[88] The children farewelled their father with minimal fuss, giving him a kiss.
Ms C’s evaluation was as follows, at [89] – [98]:
[89] The parties in this matter have not been able to reach a co-operative parenting arrangement since they separated and several arrangements have been in place. They make allegations and counter allegations about each other’s abusive behaviours and are now a considerable distance apart in their wishes for their children’s care arrangements. Mr Storey proposed he assumed either primary or at least equally shared care while Ms Havelock wanted to relocate with the children to [J] and for them to see their father for holidays and every third weekend. As noted previously the children currently only see their father for six hours alternate Sundays.
[90] Mr Storey resides with his parents and currently cannot accommodate the children for more than weekend visits. In proposing he assumed primary or equally shared care, Mr Storey did not appear to be attending to the effects of separating the children from their primary carer, stepfather and young half sibling. Conversely in proposing moving, Ms Havelock paid little attention to the impact on the children continuing to develop their relationship with their father.
[91] Significantly Ms Havelock has been diagnosed with OCD, an illness characterised by behaviours aimed at controlling the sufferer’s anxiety and an illness that often impacts adversely on the person’s personal relationships given how challenging living with a person with this illness can be. Ms Havelock’s anxiety obviously extends to her children and she has reacted to two unfortunate past incidents by suspending Mr Storey’s contact in a controlling manner. While Ms Havelock considered she was acting protectively, her actions have certainly not assisted the parties’ post-separation relationship or helped the children confidently and securely maintain their relationship with their father.
[92] The two incidents, one when [Y] was smacked and bruised by Mr Storey’s estranged wife in 2013, and the other when Mr Storey assaulted Ms S in the context of discovering she was having an affair via sexually explicit text messages, have been amply described in the affidavit material. Mr Storey and his estranged wife have now separated and Mr Storey himself assured me he does not smack [X] and [Y]. Mr Storey regretted his action in assaulting his estranged wife and indeed Dr B (19 April 2014, p2) noted “Without diminishing his culpability, Mr Storey acted in an impulsive way. He does not have a pattern of violence or threatening behaviour towards women. Mr Storey was driven by feelings of betrayal and overwhelming grief”. In Dr B’s opinion, “Mr Storey does accept responsibility for his punching his wife in the face on 2nd March 2014”.
[93] Witnessing domestic violence is undeniably damaging to young children. Emmanuel (2004) emphasised the importance of good early experiences within the family for a child and how domestic violence (including verbal abuse) can interfere with the basic requirements for the physical and emotional survival of an infant. Witnessing violence between parents may threaten a child’s confidence in the parents’ availability (Davis & Cummings, 1995, 1998). Glaser (2000) reviewed neurobiological research on the impact of growing up in a context of adversity and abuse.
[94] However Mr Storey deeply regrets his action and has now separated from his estranged wife. The risk of further such incidents is minimal. Continuing damage to these children is being caused by the uncertainly [sic: uncertainty] surrounding their time with their father. In a very controlling manner, Ms Havelock suspended their time with him for almost twelve months following the smacking indecent in 2013 and for another six months following the domestic violence incident in 2014. It was not clear to me that either response was warranted or indeed what withholding the children achieved apart from denying them time with their father and probably making them more anxious rather than less about their time with him. Mr Storey himself has never injured his children and earlier incidents before and around the time of separation were no doubt contributed to by both parties.
[95] The parties are in dispute as to why Mr Storey currently only sees the children for six hours. Regardless of the reason the children still are a long way from the “sound relationship” Ms D (5 August 2014) considered they needed with their father before they could tolerate the longer separations involved if their mother relocated with them. I share Ms D’s view and recommend overnight weekend and some midweek contact commence as soon as possible before a relocation is even contemplated.
[96] The history of this matter does not lead to any confidence that Ms Havelock, despite her assertions, would facilitate the children’s time with their father from a distance given she was unable to do so when she and her ex-partner were in relatively close proximity. She and her new partner will be caring for four young children, some with special needs, making travel onerous. It will also be costly.
[97] [X] and [Y] also need an on-going regular opportunity to bond with their younger half-siblings at their father’s. Given his diagnosis, [Y] particularly needs stable, predictable arrangements.
[98] Neither [X] nor [Y] impressed as anxious in their presentations and [X]’s test results did not support her mother’s report that she was an anxious child. Both should be well able to cope with more time with their father. Hopefully Ms Havelock can recognise the importance of this and benefit from the break this provides her.
Ms C’s recommendations were brief; they are set out below:
[99] That both parties undertake a co-parenting after separation course;
[100] That the children primarily reside with their mother and for the next three months commence overnight visits with their father every second weekend for the Saturday night progressing to the Friday and Saturday night after three months;
[101] That after six months the children spend a night with their father in the “off-week”;
[102] That Ms Havelock’s wish to relocate is deferred until a stable visitation schedule is in place, that is, for at least eighteen months.
Except for her recommendation to defer the relocation matter for 18 months until there is “a stable visitation schedule in place”, I should be taken to accept her comments set out above. There was nothing that I saw or heard at the trial that would warrant any other view than as set out in Ms C’s report to which I have referred.
Her oral evidence was relevantly as follows.
After canvassing with her aspects of the Father’s drinking habit or earlier patterns of it, Ms C said – rather emphatically - that she did not think that supervision of the children’s time with their Father was necessary.[54]
[54] T 157.
Regarding relocation, in answer to questions from Counsel for the Mother, Ms C said (emphasis added):[55]
… So if I focused then on the period 18 months, is that a formulated period or is that a period which you’ve surmised to be the best? What I’m asking you is this. Is there hard evidence to show that 18 months is the required period or is it just a period that – that you consider is necessary?‑‑‑As you’re well aware, in this area there’s no – hard evidence is, you know, not always available. So it’s just a period. I said at least 18 months actually. So – which makes the children, you know, that much older. But, no, there was – there’s no evidence underlying me saying 18 months.
Now, given that you’ve just given – that there’s evidence and your evidence is that the children are fairly robust – especially in terms of [X], at the very least – there’s – there’s nothing there to indicate from you that there would be significant detriment to the children if they were to relocate earlier. Is that fair to say?‑‑‑ So long as - the detriment – my ..... was that to date they haven’t been able to establish the stable contact relationship with their father. So the detriment to me would be that they may well not be able to establish that if they move sooner. That’s my concern. To the detriment in any other sense, then probably not. But I would [be] concerned about them establishing that relationship with him.
[55] T 160 – 161. This was further confirmed in later questions from the Father’s solicitor. See T 168.
She also noted that she was not aware [of any evidence] that the alcohol consumed by the Father at any relevant time had impaired his capacity to care for the children.
In relation to the facilitation by the Mother of the children’s time with the Father she said that she thought it would be “quite difficult” to manage, as a matter of logistics, if the Mother relocated to the south coast. She also said that it was important for the Mother’s state of mind to remain healthy; this arose in the context of a brief discussion regarding the Mother’s OCD condition, and I took it also to refer to the situation in the event that the Court did not permit relocation.[56]
[56] T 163.
The following extended discussion took place with respect to the children’s relationship with [Z]:[57]
[57] T 164.
HIS HONOUR: So, Ms C, can I ask you this? That one piece of evidence that came out this morning from Mr J – who is, as you know, Ms Havelock’s partner ‑ ‑ ‑?‑‑‑Yes, your Honour.
‑ ‑ ‑ is that he said – and this was also confirmed earlier by Ms Havelock – that in relation to his daughter from an earlier relationship, [Z] ‑ ‑ ‑?‑‑‑Yes. Yes.
‑ ‑ ‑ that he said that he – these are – this is in general terms – he said that he couldn’t envisage that proceedings in relation to securing his time with [Z] would be started until approximately 12 months time?‑‑‑..... yes.
And he also confirmed that he had not spent any time with [Z] for the last 12 months. That he and his former partner had attempted mediation but without success. And that therefore he – and in turn [X] and [Y] – they too had not spent time with [Z] in the last 12 months. Would it be reasonable in those circumstances to at least make an observation that, firstly, [Z]’s relationship with her step-siblings is an important factor?‑‑‑Yes, your Honour. And then with the new baby, which will be her half‑sibling. Is that right?
Yes. Yes?‑‑‑Yes. Yes.
MR FINCH: Sorry, your Honour. I’m loathe to interrupt your Honour’s line of questioning but it just raises an issue. The consultant hasn’t met with [Z]. Your question was [Z]’s – the importance of [Z]’s relationship. Is that to be in the concern of the impact on [X] or ‑ ‑ ‑
HIS HONOUR: Yes.
MR FINCH: ‑ ‑ ‑ is that to concern the impact to [Z]?
HIS HONOUR: No, no. In relation to [X].
MR FINCH: Thank you, your Honour.
HIS HONOUR: [X] and [Y].
MR FINCH: Yes. Thank you, your Honour. I’m just ‑ ‑ ‑
HIS HONOUR: No, no. It’s all about context to the children who are the subject of these proceedings. Could I then further ask, would it be reasonable in your view that the court – as I’ve already put – would consider [X] and [Y]’s relationship with [Z] as being an important consideration amongst many that are on the table? So that’s the first part of my question?‑‑‑Thank you. Yes. Yes. It would be certainly another consideration. Yes.
Regarding both the increase in the Father’s time with the children, and again regarding relocation, Ms C said:[58]
Now, can I ask you, in your opinion, are you able to say what would be in the best interests of the children – or what factors would be in the interests of the children if they – if the mother was able to relocate?‑‑‑I’m sorry. If she was able to relocate?
Yes?‑‑‑Well, that somehow there was still – there was still some – some consistent time with their father was built into, you know, with their life. Obviously taking into account the distance involved. I mean, I’m always concerned when young children area travelling too far for contact purposes.
And, in fact, you’ve already identified that it’s certainly in the best interests of the children to – to commence overnight unsupervised contact with the father as soon as possible?‑‑‑Yes.
Yes. And you’ve also indicated that, in fact, conversely not doing so – at paragraph 94 ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ that it’s actually not in their best interests to keep the current regime in place, and continuing damage to these children has been caused by the uncertainty surrounding their time with their father?‑‑‑Yes. That’s at paragraph 94. Yes.
So what I’m trying to ask, are you able to identify the benefits to the children that they would receive by relocation?‑‑‑You mean – sorry. You mean relocation in itself?
Yes?‑‑‑I don’t think I addressed that in great detail in my report, did I? It’s – well, they would be within the – their family unit with their mother and their stepfather. The new baby. I’m not sure what specific benefits the relocation represents in itself….
[58] T 168 – 169.
In answer to questions from the ICL, Ms C agreed with the proposition that neither Ms Havelock nor Mr J had/have a realistic appreciation of the difficulties involved in travelling as they proposed in the event that the Mother was permitted to relocate. She was equally concerned about the Mother’s evidence that she did not speak with the Father at all.[59]
[59] T 170.
And finally, in relation to the Mother allowing the children to call their Father “[first name omitted]”, Ms C said (in the wider context of [X] not [yet] having a robust relationship with her Father) (emphasis added):[60]
[60] T 171.
Mr Siggins has asked you about [X], and that she’s a particularly robust child?‑‑‑Well, she’s a – not – not an anxious child.
No?‑‑‑I don’t think I used the term particularly robust.
Right. But when you think about her relationship with her dad, that’s certainly not a robust relationship, is it?‑‑‑No.
And is it fair to say one of the overriding factors in that relationship is the lack of time she has had with her dad?‑‑‑Yes. It certainly hasn’t helped.
And is that – that the same for [Y]?‑‑‑Yes.
And is that reflected in the fact that the children refer to Mr Storey as [first name omitted]?‑‑‑Yes.
And does it raise concerns with you that Ms S has given – beg your pardon – Ms Havelock has given evidence that she doesn’t particularly see anything wrong with that?‑‑‑It’s – that’s always a difficult question because children ..... you know, of themselves relies [sic: rely] on parents to – to direct it or come up with some other response to it or something. So, yes, I think it – it’s an issue that she doesn’t have any insight into it.
I should be taken to accept without qualification the comments and evidence generally of Ms C given at trial.
Findings in relation to the Evidence
At this juncture, it is as well to note the following from the evidence; each matter noted should be taken as a formal finding by the Court.
The children have a good and close relationship with both their Mother and her partner, Mr J.
The children also have a good relationship with their Father.
The Mother and her partner have an unrealistic expectation about the capacity, and the likely impact, on regular travel of such long distances between the south coast and [W].
The Mother and her partner have not appropriately considered the importance of the children’s relationship with their siblings, on the Father’s side ([A] and [B]), and on the partner’s side, [Z]. Nor have they properly or appropriately considered the impact on the children of a significant move to the south coast and its likely adverse impact on the children concerning these relationships with their siblings, all of whom are in the [W] area. This is to say that a move to the south coast, with the siblings remaining in the [W] area, will make the sibling relationships significantly more difficult to maintain and nurture.
The Mother and her partner have not appropriately considered the impact on the children of allowing them to call Mr J “Dad”, and equally have shown lack of insight in the reverse situation in allowing the children to decide to call their Father “[first name omitted].”
The Father has, and continues, reasonably to monitor and to address his issues, notably in relation to his mental health. This is bolstered by the good parenting relationship he has with his former Wife, Ms S, and his regular care of his sons with her, [A] and [B].
The Mother’s Submissions
After summarising the parties’ respective positions, basic facts in relation to the children, [X] and [Y], and some gaps in the Family Report alleged by the Mother (e.g. the alleged failure to address the Father’s current mental health and alcohol issues – although these were addressed in Ms C’s oral evidence), and a range of comments on the Father’s position and evidence generally, the Mother submitted as follows:
1) The mother has established herself as the primary carer for the children.
2) It is established that there remains a potential risk of psychological harm to the children as a result of the father’s alcohol abuse and anger issues.
3) The primary consideration of the Court under Section 60CC(2)(b) is to protect the children from the risk of that harm.
4) The father’s evidence that he is able to adequately care for the children while they are in his care is in doubt for reasons of his admitted problems with alcohol and disclosures concerning his mental health.
5) The father’s evidence that he is adequately addressing these problems via counselling should not be considered to be able to assist him. Jones v Dunkel
6) There is no direct evidence that the children will be adversely impacted by the relocation other than with the possibility that father will be denied future contact with the children, an issue which may not be considered to have any detrimental impact on the children at this time.
7) The father’s assertions that he will be denied contact in the future is premised on two grounds namely that
a) The father will be able to address the issues of concern in relation to his care of the children thus rendering it advantageous that they have a relationship with him; and
b) On satisfaction of the above the mother will still deny him future contact in spite of her assurances (see [FR 42]).
8) It is submitted that the children remaining in the [W] - [W] area only serves the father’s interests. There is no direct evidence that the children will suffer any negative aspects if they do not see their father for an extended period of time or that they cannot have a meaningful relationship with their father under the mother’s proposed contact schedule as it affords the father significant and meaningful time with the children.
9) Moreover, in addressing point 49 above it is submitted that:
a) It cannot be determined that the father will be able to address his issues in relation to alcohol and mental health at this time; and
b) A finding that the mother will disregard any orders for the children’s future contact with their father, fails to adequately address the mother’s reasons for previously doing so.
10) In support of the above it is submitted that an adverse finding against the mother in regard to facilitating contact fails to afford her procedural fairness in so far as both parties were restrained from adducing evidence as to the reasons for the mother restricting the father’s contact during the hearing.
11) Therefore it is submitted, that the Court is required to examine the mother’s present attitude towards the father’s contact with the children only (as seen at [FR 42]) and orders may be made allowing the mother to relocate on the strength of those assurances and that should she fail to do so, it may be recognised that the Act provides the appropriate remedies for the father to ensure he has contact with the children.
12) In the alternative it is submitted that it is open for the Court to find that the mother be able to relocate after a short period of time in which the children have had uninterrupted scheduled contact with the father provided that it can be established that that contact is free from risk of harm to the children.
13) Respectively [sic] I make the above submissions on behalf of the Applicant mother.
Subject to what has been said earlier in these reasons regarding the evidence in relation to the importance of the children’s relationships with their multiple siblings (notably [A] and [B], as well as [Z]), which issue is not addressed in the submissions, there are a number of other significant matters that are (a) not addressed in the submissions, and or (b) submissions are made that are either not supported by the evidence or for which there is evidence that is directly contradictory to the submission made. Perhaps one of the most problematic submissions is that, in support of the Mother relocating, it was submitted that “she no longer feels comfortable residing in the [W] area due to her poor relationship with the Father of the children.”
In fact, and contrary to the submissions put on her behalf, the Mother’s evidence (noted earlier in these reasons) was directly contrary to this this submission. The Mother’s unequivocal evidence was that her desire to relocate had nothing to do with the Father but was because she really just did not like [W]. True it is that she and the Father do not communicate, but this was not advanced as a (or “the”) reason for her desire to relocate.
The Mother’s submissions are silent in relation to her partner’s child [Z] (who resides in [W]), and the proposed litigation (sometime in the future) to be brought by the Mother’s partner to seek parenting orders in relation to his daughter.
Further, the Mother’s submissions stated (at par.31):
…in proposing a primary or equal shared care arrangement it is considered that the father has not adequately considered the affects of separating the children from their primary carer, stepfather or young half sibling[s]…
In fact, the Father’s proposal (as confirmed in his written submissions below) was essentially as proposed by the ICL, which is not a position as represented in the Mother’s submissions. And again, there is no consideration of, or reference to, separation from the children’s siblings on the Father’s side.
The Father’s Submissions
After summarising the issues, the evidence of the Mother and her partner (Mr J), the evidence of the Father, and of Ms C, the Father submitted as follows:
1) The evidence does not support a finding that the children are currently, or will be in the future, in need of protection from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence at the hands of the Father.
2) The evidence does not support a finding that there is need for supervision
3) Any residual concerns the Court may have in respect of the allegations of violence, alcohol or mental health issues can be addressed with appropriate orders requiring the Father to attend appropriate courses as identified in the orders sought by the ICL.
4) It follows that the remaining primary consideration as set of in section 60CC(2)(a) applies, and the best interests of the children is to be considered in light of the benefit of them having a meaningful relationship with both of their parents.
5) It is impossible to avoid the conclusion that Ms Havelock’s actions in preventing or restricting the children’s time with their father has had a detrimental effect on their relationship with him.
6) As at the date of the trial Mr Storey was restricted to 6 hours of supervised time with his children per fortnight. This is comparable with the extremely limited 4½ hours per fortnight of supervised contact he had been permitted in the 2 years between June 2010 and March 2012.
7) In addition, there had been significant periods where he was permitted no time at all, most significantly 11 months between January 2013 and December 2013 and the further 6 months between March 2014 and September 2014.
8) The evidence demonstrates that these restrictions were placed on him at the instigation of Ms Havelock alone and that she has not in the past been amenable to facilitate reasonable time between the father and children without the imposition of unnecessary and impracticable conditions.
9) The evidence is clear is that the Mother cannot or will not communicate with the Father in relation to parenting issues.
10) It is submitted that the Mother’s insight into the importance of maintaining the relationship between the children and their Father is limited as demonstrated by permitting the children to call Mr J, her current partner “Dad” and refer to their father as “[first name omitted]”.
11) In all the circumstances it is submitted that the Court could not be satisfied that the Mother would be willing or able to encourage, nurture and facilitate an ongoing, meaningful relationship between the children and their Father and in those circumstances the relationship would not survive the relocation.
12) On the contrary it is submitted that in order to rebuild, consolidate and develop that relationship the children need regular and consistent time with their Father. To achieve that the children should remain in a reasonable proximity to him.
Additional Considerations s60CC(3)
a) Views expressed by the children.
There is only limited information in respect of the children’s views as set out in Ms C report at paragraph 72 to 81. [X] is 8 years of age and [Y] is 6. Ms C notes that she was unable to get a view from [Y] and in relation to [X] noted a possible suggestion of coaching and the fact that her current living arrangements have had an effect on her relationship with Mr Storey. Due to the limited time [X] had been spending with her father the Court should be cautious when attaching weight to [X]’s comments.
b) Relationships with each parent and other persons
The nature of the relationship between the children and their father has been limited by the amount of time he has been permitted to spend with them over a protracted period. It is submitted that more regular and consistent time with the Father and his family will strengthen these relationships. The children have 2 half siblings, paternal grandparents and cousins. More time with these persons can only be to the children’s benefit.
c) Opportunity to participate in decision making, spending time and communicating.
The actions of the Mother have impeded Mr Storey’s ability in this area but it is clear that Mr Storey has been unrelenting in his resolve to be an active parent – he requires the assistance of the Court to ensure that Ms Havelock permits him to be so.
(ca)Obligations to maintain
Mr Storey has complied with his obligations in this regard.
d) Likely effect of change in circumstances including separation
The likely effect of the change the Father seeks (more time - unsupervised) is the improvement of the relationship and in the best interest of the children. This course is recommended by the report writer. The likely effect of the change sought by the Mother (relocation) will have the opposite effect in our submission.
e) Practical difficulty and expense:
Practical difficulties and expenses will inevitably increase under the Mother’s proposal. There will be the time and expense of travel. The Mother’s unwillingness or inability to communicate will exacerbate those difficulties.
f) Capacity:
The Father does not criticise the Mother’s capacity in this regard other than her reluctance to permit him being properly and significantly involved in their lives. The Father submits that he has the capacity required to provide for their needs including emotional and intellectual needs. In his evidence he demonstrated that he was able to deal with [Y]’s special needs along with those of his son with Ms S who has similar special needs.
g) Maturity, sex, lifestyle and background:
Not applicable
h) Aboriginality etc.
Not applicable
i) Attitudes of the parents to the child and to the responsibilities of parenthood:
With the exception of the Mother’s attempts to limit and control the children’s time with the Father no criticism is made of her attitudes. The Father has in our submission an excellent attitude demonstrating what he will do – including 6 years of litigation to ensure that he plays a role as an effective parent. He has shown commitment, fortitude and courage in carrying on in all the circumstances.
j) Family violence involving the children or their family:
There was one act of family violence. It should be accepted that it was behaviour completely out of character and arose in specific circumstances. Mr Storey has sought the appropriate treatment and counselling to address his behaviour. He is clearly remorseful and regrets his actions. Both Dr B and Ms C opine that it is very unlikely to be repeated.
k) Any family violence order:
There is an AVO in place protecting Ms S. It expires in May this year. In light of the above no inferences should be drawn adverse to Mr Storey.
l) Preferable to make order that would be least likely to lead to further proceedings.
These proceedings in various forms have been on foot for all of [Y]’s life and a large part of [X]’s. Clearly it would be preferable to have no more. It is difficult to make a submission as to what may happen in the future but we ask the Court to consider that if the children were in a close proximity to their Father there would be less chance of the orders being breached or the Mother being tempted to find an excuse to stop or cease time again.
13) The Court is urged to refuse the application for relocation.
14) The Court is not asked to make an order for equal time. The orders sought by the Father are designed to allow him to spend individual time with his children with Ms Havelock, individual time with his children with Ms S and importantly time with both so that the children can develop their relationship with their half siblings.
15) The Father seeks orders as set out in his outline of case document. The Father notes that the orders sought by the ICL are similar in most respects but presses for an order providing for him to have time with the children on [A]’s and [B]’s birthdays as well, which does not appear in the orders proposed by the ICL.
The ICL’s Submissions
The ICL submitted as follows: first by way of prefatory comment or observation (emphasis added):
1) It is relevant that these are the third set of proceedings that have been commenced in relation to these children since separation.
2) As was identified by the Court when the hearing was being conducted, the issues requiring a decision by the Court included the following:
a) Whether the children’s time with the father should be supervised and are there any conditions that should be placed on the father in that regard.
b) What arrangements should be in place concerning the amount of time the father should spend with the children.
c) Whether the mother should be permitted to relocate the children’s residence to the [J] area.
3) It was not in dispute that :
a) There should be an Order for equal shared parental responsibility; and
b) that the children should live with the mother
Among other things, the ICL submitted that orders should be made as set out in the Minute of Orders Sought that was provided to the Court on 6th March, and further that
1) The Independent Children’s Lawyer submits that it is not in the children’s best interests that the mother be permitted to relocate with them and as such the Orders sought by the Independent Children’s Lawyer reflect to a certain extent the Orders sought by the father. They also reflect the recommendations of the family report writer.
2) The ICL is of the view that the children’s time with their father should change to unsupervised time and gradually increase in duration as recommended by the family report writer.
3) The Orders sought by the ICL propose Orders that the father engage in certain courses and seeks assistance to address his alcohol and anger management issues.
4) The father in his submissions notes the ICL does not provide for the father to have time with the children on his other sons, [A] & [B]’s birthdays. The ICL notes she did not seek Orders to that effect as [A] and [B]’s birthdays occur on [dates omitted]. The [date omitted] is also the mother’s birthday and [date omitted]. For that practical reason the ICL has not sought orders in relation to their birthdays.
In relation to the prescribed statutory considerations, the ICL submitted:
a) [X] is aged 8 and [Y] is aged 5. Both children have met with the ICL and given the children’s ages, it is submitted they are not of an age or maturity that the Court could give any weight to their wishes.
b)
i) The ICL refers the Court to Ms C’s report and notes her observations of the relationships between the children. The father concedes that the children should live with the mother. Ms C’s paragraphs 84 to 88 provide a snapshot of a positive interaction between the children and their father. There is no evidence that the relationship is not positive between the children and either parent. Ms C evidence is the children’s relationship with their parents reflects the amount of time they have spent with each parent.
ii) The children have four half -siblings as a result of both parents re - partnering after separation. They also have a step sister [Z], who is a child of Mr J, the mother’s partner. It is relevant to note that if allowed to relocate that would have an adverse impact on the children’s relationship on their paternal half siblings, and their step sister. Although at this point in time [Z] is not part of the mother’s household.
c) Despite an Order for equal shared parental responsibility that requires consultation, the mother has assumed a decision making role in relation to both the children. This was confirmed in her evidence under cross examination by the ICL with respect to decisions that needed to be made regarding [Y]’s schooling. The father had some initial involvement in [Y]’s attendance at the [K] Early Intervention Service and in [X]’s schooling, however in evidence he conceded he had not participated as wholly as he could have. The mother’s evidence in this regard is troubling and raises concerns that should she relocate she would not involve the father in decisions relating to the children
d) This factor is particularly relevant in that the mother’s proposal has a dramatic effect on the children’s circumstances such that they would change schools, change health providers and their relationship with their father and the time they could spend with him would be changed. It is the ICL’s submission that those changes both individually and cumulatively are not in the children’s best interest. The father’s proposal is that there be a change in the children’s circumstances such that his time with the children move to unsupervised and move to an increased frequency in duration. It is the ICL’s submission that those changes are in the children’s best interest.
e) The father’s proposal does not involve practical difficulties and expense. The parties to date have been able to arrange a pragmatic solution to changeovers and limited communication that occurs primarily through the mother’s partner, Mr J. The mother’s proposal to relocate to [J] will require a large amount of travel. It is the submission of the ICL that the mother in her evidence showed no insight into how arduous that travel would be with 4 small children and the impact of that upon the parties and all their children, both logistically and financially.
f) It is clear the mother is able to meet the practical and day to day needs of the children. The concern for the Court is whether the mother can meet the emotional needs of the children in so far as she supports their relationship with their father. It is troubling that the mother could see no difficulty in the children referring to the father as “[first name omitted]” and the mother’s partner as “Dad”. The mother’s evidence made it clear that she has no insight into the emotional impact on the children of the disruption to their relationship with their father. The Court should be concerned that when drinking and in highly stressed situation the father may not meet the needs of the children and it is for this reason Orders are sought requiring him to attend anger management programs and seek assistance
g) This factor is not relevant.
h) This factor is not relevant.
i) Both parties are committed to their children and in their view what is best for the children. The only attitude towards parenthood that the Court should be concerned with is the mother’s attitude towards promoting the children’s relationship with the father, as detailed above.
j) There are two aspects to family violence to consider in this matter. One is the violence between the father and his former wife Ms S, an incident that occurred while the children were in the care of the father and he was the adult responsible for their care. It is of concern that such an assault took place and although the children may not have witnessed the actual assault they were present when it occurred and were aware of the consequences.
The father was candid in relation to that incident and acknowledged the mother’s initial concerns were rightly held. The incident needs to be considered in the context of the help the father has accessed since that time and the ability of the father to repair the relationship with Ms S whose evidence was unchallenged as she was not required for cross examination.
Secondly there are allegations of family violence between the parties. Those allegations relate to events prior to the parties entering into Consent Orders that were made on 19 March 2012. There is little utility in the Court attempting to make findings of the fact in relation to those allegations.
k) There was a family violence order in relation to Ms S against the father. This order was to expire on 4 May 2015. It is noted that the children that are the subject of these proceedings were not included on that Order.
l) It is unfortunate that these parties have been engaged in litigation on three occasions since 29 March 2010 (noting [Y] was born on [omitted] 2009) and it is difficult to predict what Orders if any would be less likely to lead to further litigation.
Outline of Principle
In the light of the evidence of the parties, and the comments already made in relation to it, I note the following in relation to the statutory scaffolding that must be negotiated to determine orders that are in the children’s best interests, pursuant to s.60CA of the Family Law Act1975 (“the Act”).
Subject to what is said later in these reasons, a convenient jurisprudential touchstone for the following discussion is the summary of principle by Brown J in Mazorskiv Albright in relation to Part VII of the Act, noting, of course, that there have been significant changes to the primary and additional considerations in relation to “family violence”. Respectfully, and cognisant of the ‘family violence’ changes to the ‘pathway’, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to ss.60CC(2A) and 60CC(3)(c).[61] At [3] – [6] her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[61] Mazorski v Albright (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[62]
[62] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in Mulvany v Lane (2009) 41 Fam LR 418 at [90], and McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. The Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA [sic: 65DAA] inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the Court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the Court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the Court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the Court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) – (4) is intended to ensure that the Courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Consideration & Disposition
In the light of (i) the evidence to which I have referred, and (ii) the outline of principle noted, I should, in the first instance, be taken as accepting the submissions of both the Father and the ICL. To the degree that there is any conflict between those submissions, the ICL’s should be taken as those which have been accepted. It necessarily follows that I do not accept the submissions of the Mother and the orders she proposes as being in the best interests of the children. In my view, the orders proposed by the ICL are those that are decidedly in the children’s best interests.
In addition to the submissions that I have accepted, and without necessarily referring to each sub-paragraph, in what follows I should be taken to follow sequentially the order of considerations set out in s.60CC(3).[63] Further, and in addition to what has been said earlier in these reasons regarding formal findings of the Court, unless otherwise stated to the contrary or relevantly qualified, the following conclusions should likewise be understood as formal findings of the Court.
[63] Generally, regarding the order of addressing relevant “considerations” under the Act, see the recent Full Court discussion in SCVG v KLD (2014) 284 FLR 191; (2015) 51 Fam LR 340 at [71] ff.
There are no relevant views of the children to consider having regard to their ages.
Having already noted my acceptance of the ICL’s submissions regarding the considerations in s.60CC(3)(b), it is sufficient to note that there is nothing before the Court from an independent source that casts doubt on the good relationship that the children have with each parent.
What is apparent is that, from the Mother’s perspective, in my view, there has been insufficient consideration of the importance of and significance to the children of their relationship with their siblings, [A] and [B], as well as the significance of their relationship with her partner’s daughter, [Z]. Part of the lack of appropriate consideration of these sibling relationships (accepting that this description is taken generally to include [Z] as well) is the failure to consider the likely adverse impact on them if the Mother relocates to the south coast of New South Wales.
Doubtless in part because of (a) the Father’s time with the children being suspended by the Mother for very significant periods of time, and (b) the Mother’s clear and unchallenged evidence that she does not speak with the Father, the Mother has obviously assumed a position (contrived or by default) of making essentially all relevant decisions in relation to the children. This is also to say that, for the reasons given, the Father has, to all intents and purposes, been excluded from relevant decision-making for the children, and for reasons outlined earlier, his time with the children has necessarily, and for long periods, been cut off by the Mother.
While the Father has had some involvement with the [K] Early Intervention Centre (regarding [Y]), and some earlier involvement with the school, he has not been as active as one might have reasonably expected to seek out, for example, school reports for the children.
I agree with the ICL that, given the history of the Mother’s exclusive decision-making for the children, and the significant exclusion of the Father from the children for extended periods, if she was permitted to relocate, I would have significant concerns about her capacity to involve the Father in any relevant decision-making, as well as promoting the children spending time with their Father (and their siblings).
I do not understand there to be any relevant matter to address in relation to the matters to consider under sub-paragraph (ca).
Regarding any likely effect on any changes in the children’s circumstances as per sub-paragraph (d), the earlier comments in relation to sub-paragraph (c) apply equally here. In addition to those comments, I agree with the ICL’s submissions that it is in the children’s best interests to have an increase in the time with their Father and that it be [now] unsupervised. This view is well supported by the evidence of the family consultant.
Issues of practical difficulty and expense are, in my view, very significant considerations here, in the light of the Mother’s application to relocate to the south coast of New South Wales. The earlier noted concerns regarding (i) the lack of communication between the parents, (ii) the Mother’s unilateral decision-making, and (iii) the lack of proper consideration by the Mother (and her partner) of the likely adverse impact on the children and their relationships with their siblings and their Father by moving to the south coast, are all relevant to the further considerations of cost and difficulty of such a move. In my view, such matters have only been very summarily and inaccurately considered by the Mother and her partner.
Of some significance too is that the Mother’s desire to relocate has nothing to do with the Father; on her evidence, it is all to do with moving away from the [W] region.
I accept the ICL’s submissions regarding the matters embraced by sub-paragraph (f), not least in relation to the lack of the Mother’s insight in leaving adult decisions to the children, such as calling the Father “[first name omitted]”, and calling her new partner “Dad.” To state the obvious: material provision for children is but one aspect of their proper care. In my view, much work needs to be done to bring genuine order to the emotional care and perspective of the children, and particularly regarding the relationship with their Father.[64]
[64] Considerations (g) and (h) are not relevant in the current matter.
In addition to what has already been said, the main concern here (as noted by the ICL) relates to the Mother’s capacity to parent the children in such a way that properly recognises the role and importance of the Father’s relationship with them, as well as the importance of the various sibling relationships.
In relation to “family violence” there is no doubt that the assault by the Father of his former Wife was serious. It has been addressed by the courts, and in my view, adequately by the Father, for example, in seeing Dr B. The Father was, in my view, candid in taking responsibility for this assault. What is significant in this regard is that his former Wife was more than willing to testify on his behalf as to his capacity and capability as a parent of this former couple’s two young sons, one of whom has autism. In my view, this evidence from Ms S (who was not called for cross examination) is telling. It speaks about the Father’s parenting capacity from a source who might otherwise not be regarded as a favourable witness. Clearly she has no concerns about his care of [A] and [B]. Nor was there challenge to the Father’s evidence that he and Ms S have a good and relaxed parenting relationship in relation to their children.
In this regard, the Mother in the current matter cannot have it both ways. This is to say, she cannot seek to make much of the assault on Ms S as an indicator of the Father’s impaired parenting (among other things) but at the same time, effectively ignore the same person’s evidence when that person (Ms S) gives unchallenged evidence of the Father’s good parenting capacity. Unchallenged as that evidence is, the Court must and does accept it.
Because of how long ago it occurred, the various claims by both parties of domestic violence during their relationship cannot be reliably (and thereby relevantly) considered.
Given the significant history of litigation between these parties, it is even more problematic to predict what order will least likely lead to further litigation.
Conclusion
No submission addressed any authority in relation to relocation. For completeness, I simply note that no authority, from U v U (regarding, inter alia, freedom to move, subject to best interests considerations, and no need to provide “compelling reasons” for such a move),[65] to Taylor v Barker (regarding a parent’s state of “happiness” or otherwise),[66] to Morgan v Miles (regarding a the careful exercise of a structured discretion),[67] to Cales v Cales (regarding the proper approach to s.65DAA in the light of the High Court’s comments in MRR v GR),[68] on the evidence before the Court, would, in my view, lead to any different result than the orders as sought by the ICL.[69] This results in, among other things, the Mother being restrained from moving away from the [W] region. Such would not, in my view, be in the children’s best interests.[70]
[65] U v U (2002) 211 CLR 238.
[66] Taylor v Barker (2008) 37 Fam LR 461.
[67] Morgan v Miles (2008) 38 Fam LR 275.
[68] Cales v Cales (2010) 251 FLR 454; (2011) 44 Fam LR 376. MRR v GR (2010) 240 CLR 461.
[69] Having regard to the time that has elapsed between the date of the hearing and the orders now to be made, the regime of graduated time as proposed in the ICL’s orders should be reflected as from the commencement of the final orders now to be made. Subject to any other view by the ICL (or as might be agreed in writing between the parties), the new orders and the graduated increase in the Father’s time should commence as from Sunday 13th September 2015.
[70] See also the comments by the Full Court in Sayer v Radcliffe (2013) 48 Fam LR 298 regarding parenting matters that involve relocation.
Nor did any submission address s.65DAA.
Given that the orders so sought involve an order for equal shared parental responsibility, it then requires the Court to consider, in accordance with s.65DAA(1), whether an equal time arrangement is appropriate and in the best interests of the children, and consider whether an equal time arrangement with each of the parents is reasonably practicable. If this does not apply, in accordance with s.65DAA(2), the Court must then consider whether an order for significant and substantial time is appropriate and in the best interests of the children.
An equal time arrangement is not only not sought, but in all the circumstances, I do not consider it to be in the children’s best interests in the light of all the evidence. In my view, the orders as proposed by the ICL provide for a proper graduated increase in the Father’s time, which will, in relatively short compass, result in the children spending regular, and something approaching significant and substantial time with the children.
Two other matters should be addressed in conclusion.
First, in the course of her recommendations the Family Consultant referred to the possibility of a reconsideration of the Mother moving to the south coast of NSW after perhaps (or at least) 18 months to ensure that the Father’s relationship with the children has been more securely established. In my view, such a review would not be in the children’s best interests. This is so for the following reasons:
(a)The parties have a very significant history of litigation to which the ICL referred. To suggest that there be a review of parenting arrangements in perhaps 18 months’ time could (or would) inappropriately foster some expectation of a further change in parenting orders. The children need stability, not the risk of further change;
(b)The clear evidence of the Family Consultant was that the Mother and her partner had not sufficiently or adequately considered the likely negative impact on the children of the very significant travel between the south coast and the [W] region;
(c)The Mother’s partner’s evidence (and that of the Mother, to a more limited degree) confirmed that (i) the children have (or recently had) a good and close relationship with the Father’s daughter, [Z], and (ii) the Father will be engaging in further litigation to secure parenting orders in relation to [Z]. Those proceedings have not even commenced. [Z] lives with her Mother in [W]. The uncertainty of the commencement, duration and finalisation of these contemplated proceedings adds a further element of uncertainty to the current matter which could impact on the children’s relationship with [Z].
For these reasons, there should be no such review as suggested by the Family Consultant.
Secondly, there is a discrete issue regarding the children spending time with [A] and [B] on their birthdays. The difficulty here is that these children of Mr Storey have birthdays which coincide with the Mother’s birthday and Christmas Eve. Without making a specific order about it, I would simply suggest that the parties find a separate date in either the previous, or the following, week to those birthdays for the children to celebrate with their siblings. Further, once agreed, these alternative birthday celebration dates should remain the same from year to year – in the absence of further agreement in writing.
In all the circumstances, and in the light of all the evidence, and subject to the refinements to which I have referred, the orders as sought by the ICL are, in my view, in the children’s best interests, in accordance with s.60CA of the Act.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 10 September 2015
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